MARIAPPA GOUNDER Vs. V KANDASAMY

JUDGEMENT

(1.) THE plaintiffs in O.S. No. 633 of 1983 on the file of the District Munsif, Pollachi are the appellants herein. They filed the suit for partition, to divide the properties into four equal shares and allot two such share to the plaintiffs. Their case is that the suit property originally belonged to their father. The defendants 1 and 2 are the brothers of the plaintiffs. Their mother one Thangammal filed the suit O.S. No. 185 of 1980 claiming maintenance against her husband, the father of the plaintiffs and the defendants 1 and 2. The said suit was ended in compromise. The father of the plaintiffs and the defendants 1 and 2 agreed to give the plaint 'A' and 'B' schedule properties in lieu of her maintenance, apart from paying a sum of Rs.2,500 towards arrears of maintenance and the court expenses. Pursuant to the said compromise decree, the mother of the plaintiffs and the defendants 1 and 2 were given possession of the said properties. Though a restricted life interest had been granted in favour of the mother under the compromise decree, she became a full owner pursuant to Section 14 (1) of the Hindu Succession Act. The plaintiffs and defendants 1 and 2 are equally entitled to share the plaint schedule properties. Since their father had executed a settlement deed in favour of the fourth defendant who is to get the properties after the death of the mother of the plaintiffs and the defendants 1 and 2, the fourth defendant is claiming title over the property. Hence the suit.

(2.) THE third defendant claims to be a lessee under the fourth defendant. The first defendant filed the written statement contending that he is in possession and enjoyment of the suit properties as the lessee and the plaintiffs are fully aware about the same. Hence they cannot claim separate possession of the property. The plaintiffs are entitled to have their half share in the lease amount. The first defendant has no objection to ascertain the share of the plaintiffs. The defendants 2, 3 and 4 colluded together to deprive the first defendant's lease hold right and set up the third defendant to file a suit O.S. No. 526 of 1982. The fourth defendant does not have any title or right over the property. The second defendant filed a written statement which was adopted by the fourth defendant, who is his son. Their, case is that the mother of the plaintiffs and the defendants 1 and 2 got the property only under the compromise decree and as such it is not open to the plaintiffs to claim that their mother is an absolute owner. They also denied the lease hold right of the first defendant. The fourth defendant claimed title pursuant to the settlement deed executed by his grandfather and also contented that he had leased the plaint 'A' schedule properties to the third defendant. Since the plaintiffs have no right to claim title, the suit is liable to be dismissed.

(3.) THE third defendant filed a separate suit O.S. No. 526 of 1982 for bare injunction restraining the defendants therein from interfering with his possession on the basis that he is a tenant. The defendants 1 to 3 and the plaintiffs in O.S. No. 633 of 1983 are the defendants in this suit.