ASIRVADAM SAMUEL NADAR Vs. RAJA JOTHI

JUDGEMENT

(1.) DEFENDANT in O.S. No.757 of 1981, on the file of District Munsif s Court at Srivaikuntam, is the appellant herein.

(2.) THE above suit was filed by one Kovil Pillai Nadar, brother of the appellant, seeking partition of the plaint schedule properties and to allot one half share in those items. It is averred in the plaint that the schedule items originally belonged to one Isakku Nadar, father of plaintiff and defendant (appellant). THE acquirer died about 50 years prior to the institution of the suit. It is further stated that Isakku Nadar as well as his children are Christians, and the acquirer died intestate, leaving behind his wife Nesamani Animal. Apart from plaintiff and defendant (appellant), the acquirer had also one more son by name Samidas Nadar and daughter by name Pushpakani Ammal. Samidas Nadar died unmarried and issueless. On the death of Isakku Nadar, the properties devolved as per the provisions of Indian Succession Act, the widow taking one-third share, and me remaining two-third share was inherited by plaintiff, defendant /appellant and their sister Pushpakani Ammal. Pushpakani Ammal released all her rights in favour of the two brothers, as per deed dated 10.12.1949. THE widow Nesamani Ammal filed a suit as O.S. No.143 of 1955, on the file of District Munsifs Court, Srivaikuntam, claiming partition of the one-third share, which was decreed, and a final decree was passed in that suit, and Nesamani Ammal obtained physical possession of her share. Later, she sold her one-third share in favour of one Lingasami Nadar, from whom, appellant (defendant)'s wife purchased the properties. THE plaint properties are only those properties which were left after the share allotted to Nesamani Ammal, for which plaintiff and the defendant are entitled. It is said that the first plaintiff left for Ceylon long time before and he came to India sometime in September, 1978. He had some funds with him out of which he paid Rs.1,000 to the defendant on the understanding that the same should be returned with interest on demand. Some mis-understanding arose between the brothers and when the plaintiff demanded for return of the amount, defendant denied receipt of any amount. It is in those circumstances, the above suit was filed for partition, and for allotment of one half share to the plaintiffs, in respect of the plaint items, and also for return of Rs.1,000 alleged to have been entrusted to the appellant.

(3.) PENDING suit before the trial court, Kovil Pillai Nadar died and plaintiffs 2 and 3 were additionally impleaded as his legal representatives. Second plaintiff alleged that she is the widow of Kovil Pillai Nadar and the third plaintiff is their minor son born in that marriage. In view of the death of Kovil Pillai Nadar, his right over the property was inherited by them.. Therefore, she prayed that a preliminary decree may be passed in their favour. On impleading plaintiffs 2 and 3, plaint was amended.