INNASIMUTHU Vs. KANDASAMI

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment of the Additional District Judge, Ramanathapuram at Madurai in A.S.No. 41 of 1982 confirming the judgment of the learned Subordinate Judge, Ramanathapuram at Madurai in O.S.No. 136 of 1979. Defendants 7 to 10 in the suit are the appellants in the present Second Appeal.

(2.) THE suit was filed for partition by metes and bounds of the entire A Schedule property and to put the plaintiff in possession of his 1/3rd share and B schedule in equity. According to the plaintiff, B schedule property is part of the whole which is described as A schedule and the entire A schedule property is joint family property belonging to one Chandran Chettiar and his two sons Sundararajan and Sakkatti alias Rajagopalan namely, the third defendant in the suit. THEre was a suit for partition filed by Chandran Chettiar against his two sons in O.S.No. 34 of 1969 on the file of the Sub Court, Ramanathapuram at Madurai and the present item was item 5 in the said suit. It was held in that suit that the said item was a common joint family property and that Chandran, Sundararajan and the third defendant were each entitled to one-third share and a decree was passed accordingly. THE plaintiff through his guardian had purchased the one-third share in the entire property from the third defendant on 22.4.1960 and it was agreed among the three co-sharers that the B schedule property comprising four buildings was the one-third share apportionable for the share of the third defendant and the B schedule property was under the possession of the third defendant. But there was no division by metes and bounds of the entire property and the plaintiff had purchased the undivided one-third share. It was further contended that he was not aware of the proceedings in O.S.No. 34 of 1969 and he came to know of it only two months backs prior to the suit, and he found that even though preliminary decree for partition had been passed on 7.11.1973 itself no final decree had been passed. As such the properties have not become divided. THErefore, according to the plaintiff, he was in joint possession of the property as a purchaser of the undivided one-third share and in spite of repeated demands, no partition was effected. Chandran Chettiar died in 1974 and Sundararajan also died in April, 1979. Defendants 1 and 2 are widow and son of Sundararajan, while defendants 4 to 6 are daughters of Chandran Chettiar. THE plaintiff would further submit that defendants 7 to 10 claim to be alienees from Defendants 4 to 6 and that it was given out by defendants 4 to 10 as though late Chandran Chettiar had executed a Will and alleged to have bequeathed the suit property to defendants 4 to 6. According to the plaintiff, the Will under which defendants 4 to 6 claim was not genuine and was not executed by the testator in a sound and disposing state of mind. At any rate, the plaintiff's right as purchaser of one- third share can not be affected by the alleged Will.

(3.) HE also refers to the following passage in Mayne's Hindu Law & Usage, 13th Edition, paragraph 412 which is as follows: