THULASI Vs. JAGANNATHAN

JUDGEMENT

(1.) DEFENDANTS 2 to 11 who are the legal representatives of the first defendant in the suit are the appellants. Deceased first defendant and the respondents were brothers being sons of One Veerappan Voykarar. The suit O.S.No. 414 of 1989 was filed by the respondents herein for partition and separate possession of several items of properties alleging as follows: Items 1 and 2 of the suit properties belonged to Alaviammal mother of the plaintiffs and the first defendant. Items 3 to 7 were lease -hold properties belonging to the joint family, Those items were taken on lease by Veerappan Voyakarar from the owner one chettiar several years prior to the suit. Veerappa Voyakarar was cultivating the said lands and he died about 25 years prior to the suit. Alaviammal also died two years prior to the suit. The first defendant Ramayyan was the eldest male member of the joint family and he was managing the properties of the joint family as kartha. After the death of the parents of the parties, each of the respondents would be entitled to an one -fourth share and the first defendant would be entitled to another one -fourth share. However the first defendant made a claim with regard to all the items as owner. He wanted to take advantage of the entry in his name in the tenancy records made under the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act (10 of 1969) (hereinafter referred to as the 'Act') with regard to items 3 to 7 and he caused a notice to be issued in August, 1989 stating as if there had been a partition in respect of the suit items, that items 1 and 2 were given to the first defendant in the said partition. The allegations in the said notice were false. All the items belonged to the joint family of the respondents and the deceased first defendant and they were all enjoyed jointly by all of them. Since the first defendant had claimed exclusive right to the suit properties, the respondents had to file the suit for partition.

(2.) THE first defendant resisted the suit contending inter alia as follows: It was not true that the parties were members of a joint Hindu family. Even while Veerappa Voykarar was alive the first defendant had left the father and came away separately. At that time, the respondents as well as the mother of the parties were all living with the first defendant. The first defendant spent a lot of money and celebrated the marriages of the respondents and after their marriage, each of the respondents set up separate residence, Even items 1 and 2 of the suit properties were purchased by the first defendant in the name of the parties' mother and therefore, those items were the separate properties of the first defendant. There was no joint family. There was also no joint family property available for partition. About 40 years prior to the suit, the first defendant took suit items 3 to 7 on lease from their owner one Chettiar and he was cultivating those items in his own right as lessee. That leasehold right was not joint family property. As the first defendant had become old and he had no male issue, the respondents were attempting to claim right in the suit properties. They had no right whatsoever in them.

(3.) ON appeal in A.S.No. 10 of 1995, the learned Subordinate Judge, Nagapattinam, by his judgment and decree dated 19.1.1996 confirmed the decision of the trial court and dismissed the appeal. Aggrieved the present Second Appeal has been filed by the appellants.