THAIYALNAYAKI AMMAL Vs. KOTHANDAPANI @ DHANDAPANI

JUDGEMENT

(1.) This is the second appeal filed by the defendant against the decree and judgment of O.S.No.75 of 1973 dated 12.10.1990 on the file of Additional Subordinate Judge, Pondichery and also against the first appeal dated 25.08.1998 in A.S.No.10 of 1991 on the file of the III Additional District Judge, Pondicherry.

(2.) The Cross Appeal is also filed by the plaintiffs 1, 5, 6 and 7 and two others in this second appeal against the decree and judgment of O.S.No.75 of 1973 dated 110.1990 on the file of Additional Subordinate Judge, Pondichery and against the first appeal dated 25.08.1998 in A.S.No.10 of 1991 on the file of the III Additional District Judge, Pondicherry.

(3.) One late Periasamy Chettiar owned many properties in Cuddalore and Pondicherry including the suit property in Pondicherry.. He had three sons by name Kumarasamy, Muthusamy @ Kandasamy and Namasivayam. Namasivayam died as a bachelor. Kumarasamy had a son by name Palanisamy. He also was issueless. He married one Visalakshi, who adopted one Devanathan, @ Ethirajalu @ Venkatachalam @ Kumarasamy, after the death of Palanisamy on 31.01.1919. The said Devanathan married one Govindammal @ Saraswathi, who is the 5th respondent in this appeal and the 1st defendant in O.S.No.75 of 197 Aggrieved over the adoption, the said Muthusamy @ Kandasamy had filed a suit in O.S.No.36 of 1921, which was subsequently compromised between Muthusamy and Devanathan, the adopted son of Visalakshi by agreeing to share the property equally. The adoptee Devanathan died in 1958 (Ex.A13) and the reversioner Muthusamy attempted to take possession of the properties, when Govindammal, wife of the deceased Devanathan opposed it. In the meanwhile, Muthusamy died leaving behind Thangavelu @ Vadivelu, who again filed a suit challenging the adoption, which ended in a compromise, in which he got certain properties, which was half share and he died on 2.4.1966 (Ex.A12) before he could take possession of the properties. The first plaintiff Kothandapani in O.S.No.75 of 1973 is the son of the deceased Thangavelu. He sold away the property to one Kunjithapatham, who was the 2nd plaintiff in the suit. In the meanwhile, Visalakshi, the widow of late Palanisamy executed a Will dated 27.01928 (Ex.B2) in favour of her brother Palanisamy. This Will was disputed and the matter is subjudice. Prior to this, Visalakshi filed a suit (O.S.No.43 of 1926) against her own adopted son Devanathan and also against Muthusamy. This ended in a compromise (Ex.A9), in which the suit property was agreed to be given to the mother Visalakshi by the adopted son Devanathan. This was later settled through a Will to her brother V.Palanisamy. Muthusamy was not a party to the compromise. However, Muthusamy filed a suit in O.S.No.11 of 1929 against the Will and the compromise, which was dismissed in 1934 (Ex.A8) and this court in the appeal in A.S.No.74 of 1935 had held that the said Muthusamy is entitled to half share of the estate of Palansamy stating that the compromise between the mother and son cannot be binding on the rights of Muthusamy, who is entitled to half share. Based on these facts, both the lower court had concurrent view and adopted the same by decreeing and confirming the suit and giving half share of the suit property to the plaintiff/1st respondent.