J MANOHAR Vs. J SRIDHAR

JUDGEMENT

(1.) THE unsuccessful plaintiff in O. S. NO. 79 of 1992 on the file of the Subordinate Judge, Arani, Tiruvannamalai District, is the appellant herein. THE plaintiff had filed the suit for partition of one half share in the plaint schedule properties and also for permanent injunction against D3 and D4 from taking possession of the plaint schedule properties.

(2.) THE short facts of the plaint sans irrelevant particulars are as follows:- D1 is the brother of the plaintiff and D2 is the mother (who died pending suit). D3 & D4 are the purchasers under D1. Apart from D1, the plaintiff has another brother by name Sankaran. THE plaintiff, D1 and the above said Sankaran are the sons of late Jaganatha Mudaliyar. THE plaint schedule properties are ancestral joint family properties. Some of the properties were acquired by Jaganatha Mudaliyar from out of the income of the joint family properties. THE other brother of the plaintiff viz. , Sankaran became addicted to immoral habits and was leading a wayward life and he even neglected to maintain his wife. After the marriage of the plaintiff, Jaganatha Mudaliyar and D2 (mother) were living with D1. At the instance of D1 Jaganatha Mudaliyar had executed a Will in his favour. D1 and the plaintiff assured that they will enjoy the joint family properties even after the execution of the Will. Only on the basis of the said assurance Jaganatha Mudaliyar had executed the Will dated 01. 08. 1984 in favour of D1. THE recital in the Will as to the effect that the properties bequeathed under the Will were self-acquired properties of Jaganatha Mudaliyar is false. Jaganatha Mudaliyar had no capacity to execute the Will in respect of the Joint Family Properties in favour of D1 alone. Even after the death of Jaganatha Mudaliyar the suit properties were treated as joint family properties and the plaintiff and D1 were in joint possession of the same. A family arrangement was entered into between the brothers on 8. 4. 1988. Under the said family arrangement Sankaran and his wife Saraswathi Ammal were paid Rs. 10,000/- out of the income of the joint family properties and they relinquished their interest in the joint family properties. THE plaintiff was also given Item No. 1 property scheduled to the said family arrangement. Only with an intention to get relinquishment of right in respect of the joint family properties from Sankaran and his wife, the said family arrangement was entered upon by the brothers. THE recitals of the allotment of properties to the plaintiff was never intended to be operative and infact it did not come to effect even after the said family arrangement. THE plaintiff and 1st defendant continued to be the members of the joint family property and they were in possession of the properties. Because of trust and confidence the plaintiff signed in the said family arrangement document. Due to evil advice of some persons, D1 issued an advertisement in a vernacular daily dated 28. 09. 1991 claiming share in the suit properties. All the attempts made by the plaintiff to get a peaceful partition failed. Hence, the plaintiff has comeforward with this suit for partition of plaintiff's one half share in the suit property (after the death of D2) and also for consequential injunction against D3 & D4 who are the alienies under the first defendant.

(3.) THE 4th defendant in his written statement would contend that she is interested in Item No. 4 which she had purchased under a registered sale dated 12. 3. 1992 for a valuable consideration of Rs. 1,95,000/- from D1, who had derived title to the said property under a registered Will execued by his father Jaganatha Mudaliyar dated 26. 2. 1981. After the death of Jaganatha Mudaliyar, in the presence of Mediators and Panchayators an agreement was entered into between the plaintiff, D1 and other brother Sankaran on 8. 4. 1988. Under the family arrangement Item No. 4 to the plaint schedule was retained by D1. THE 1st defendant had dismantled the tiled shop and put up a terraced building, after obtaining municipality licence, in Item No4 property. THE properties bequeathed by Jaganatha Mudaliyar to the 1st defendant were the self-acquisition of Janganatha Mudaliyar. After the execution of family arrangement dated 8. 4. 1988 the plaintiff is estopped from contending that the properties are available for partition. After the purchase of Item No. 4, D4 along with her husband took possession of the same and is doing Ragi business and cattlefeed business in the said property. After getting godown license from the Municipality, D1 was running a provisional store in the said property before executing the sale deed in favour of D4. THE plaintiff is running a grocery shop at Door No. 119, Gandhi Marker Road. Under the family arrangement Item No. 1 house bearing Door No. 29 was allotted to the plaintiff. THE plaintiff is paying municipal tax to Door No. 29 (item No. 1). Suppressing all these facts, the plaintiff has filed the suit for partition. This defendant is a bonefide purchaser for valua. THEre is no cause of action to file this suit. Hence, the suit is liable to be dismissed.