H M CHANDRASEKARAN Vs. H M SREE KANDAIAH

JUDGEMENT

(1.) THIS appeal arises out of the Judgment and decree in O.S.No.163 of 1986 on the file of the Court of Subordinate Judge, Krishnagiri.

(2.) THE short facts of the plaint filed by the plaintiff runs as follows: THE first defendant is the elder brother of the plaintiff. THE second defendant is their mother. One C.Muniappa Chetti was the father of the plaintiff and the first defendant and the husband of the second defendant, who also died on 19.8.1978. THE plaintiff, first defendant and their father C.Muniappa Chetti constituted a Hindu Joint Family which owned amongst other properties the suit house which is ancestral in nature. Through a registered deed dated 25.7.1974 styled as a partition deed, a settlement was entered entered into between the plaintiff, first defendant and their father C.Muniappa Chetti . THE suit was filed in respect of the share of their father C.Muniappa Chetti allotted under the said partition deed and the first defendant and the plaintiff were given a sum of Rs.500/- each towards their share in the suit property. THE plaintiff was not given any share in the suit property,apart from the said sum of Rs.500/-. Hence, according to the plaintiff, the said deed dated 25.7.1974 cannot be construed as a partition deed. C.Muniappa Chetti died on 19.8.1978 leaving behind his wife viz., second defendant and two sons, the plaintiff and the first defendant as his only heirs. After the death of C.Muniappa Chetti, the plaintiff became entitled to 4/9th share and the first defendant is entitled to 4/9th share and the second defendant is entitled to 1/9th share in the suit properties. Even if the said deed dated 25.7.1974 is construed as a partition deed, the first and second defendants will be entitled to 1/3rd share each and the plaintiff is entitled to the remaining 1/3rd share after the death of C.Muniappa Chetti, the father of the plaintiff and the first defendant. Even before 1974, the plaintiff,first defendant and their father C.Muniappa Chetti were living separately. But, for the sake of convenience, the plaintiff, first defendant and their father C. Muniappa Chetti were in joint possession and enjoyment of the suit properties. After the death of their father, C.Muniappa Chetti, both plaintiff and the defendants were in joint possession of the suit properties. THE first defendant had acquired vast properties at Bangalore with the help of ancestral joint family funds and they are also joint family properties. Since the plaintiff could not get full details of the properties so acquired by the first defendant, he reserves his right to file a separate suit for partition in respect of those properties or to include them in this suit after full particulars of the same were obtained. THE second defendant is now join hands with the first defendant, in order to defeat the plaintiff of his legitimate share therein, the defendants are trying to alienate the suit properties to other persons. Coming to know about the same, the plaintiff had published a notice in a vernacular daily(Malai Murasu), dated 15.9.1986 warning the first defendant not to sell the suit property and also issued a notice dated 20.9.1986 to one Mahadeviah, the prospective purchaser of the first defendant. In spite of the said notices, the first defendant is trying to sell the suit property. THEre was a mediation took place between the plaintiff and the first defendant on 10.9.1986 before the Panchayatdars to effect a partition of the suit properties, but it ended in vain. Hence the suit for partition of 4/9th share in the plaint schedule property and for delivery of possession and for mesne profits.

(3.) AFTER scanning the evidence, and after taking into consideration, both oral and documentary evidence, the learned trial Judge has come to a conclusion that the plaintiff is not entitled to any relief in the suit and accordingly dismissed the suit with costs which necessitated the plaintiff to approach this Court by way of this appeal.