DHARMAR PANDIAN Vs. BALASUBRAMANIAN

JUDGEMENT

(1.) THIS is an appeal preferred by the unsuccessful respondent in a. S. No. 83 of 1989 on the file of the First Additional District Judge, tirunelveli, reversing the judgment and decree in O. S. No. 65 of 1983 on the file of the Sub Court, Tenkasi.

(2.) THE respondents herein preferred a suit in O. S. No. 65 of 1983 before the Sub Court, Tenkasi against the deceased first appellant herein for a decree of declaration and permanent injunction. According to the plaint in the said suit, the suit property originally belonged to Kulasekaranatha Desigar, who died about 50 years back and he had a son, by name Vilvanatha Desikar through his first wife and three sons through his second wife, namely Sivasubramanya desikar, Piramu Ammal and Arumuga Desikar and the said Arumuga Desikar is the first defendant in the suit. According to the plaintiffs, the property was partitioned as per document dated 03. 11. 1908 in and by which, half share was allotted to the share of Vilvanathan Desikar and the other half was allotted to the children of Kulasekaranatha Desikar through his second wife which includes the first defendant. The respondents are the children of Sivasubramanya Desikar and it is their case that the property allotted to the first defendant Arumuga desikar was settled by him in favour of the father of the respondents as per ex. A. 5 dated 22. 04. 1964. After the death of Sivasubramanya Desikar, the property devolved on the respondents being his legal heirs and they have been in possession and enjoyment of the property. It is the further case of the respondents that the first defendant in the suit, namely Arumuga Desikar was a sanyasi at Kallidaikurichi and while so, he came to Shencottah on 25. 08. 1983 and declared his intention to sell the suit property and hence they laid the suit.

(3.) THE first defendant in the suit, namely Arumuga Desikar filed written statement and according to him, the respondents have no title and possession in respect of the property shown as Item No. 2 and it is his further case that the father of the respondents have not derived any right and title under Ex. A. 5, as the same has not come into effect. He also contended that he has not given any absolute right over the second item of suit property to his brother Sivasubramanya Desikar and it is his further case that he has cancelled ex. A. 5 as per document dated 16. 07. 1982 and accordingly, prayed for dismissal of the suit in so far as the property covers in Ex. A. 5 was concerned.