ESAKKIMUTHU Vs. MANICKAVADIVOO

JUDGEMENT

(1.) THE plaintiff is the appellant. THE second appeal is preferred against the judgment and decree dated 28.02.1996 in A.S. No.22 of 1994, on the file of the learned Subordinate Judge, Nagercoil, confirming the judgment and decree, dated 16.6.1994 in O.S.No.779 of 1987, on the file of the learned District Munsif, Nagercoil. THE suit is filed for partition and for mesne profits.

(2.) THE brief facts of the case are as follows: THE plaintiff and the defendants 2 to 4 are brothers. THE first defendant is their mother. One Late, Sivasubramanian was the husband of the first defendant and the father of the plaintiff and the defendants 2 to 4. One Late. Ramalaxmi is the mother of the first defendants and the grand mother of the plaintiff and the defendants 2 to 4. THE said sivasubramanian died on 26.04.1986 and the said Ramalakshmi died in the year 1964. THE first item of the plaint schedule property was purchased by the said Sivasubramanian. THE second schedule of the property originally belonged to one Paramartha Lingam Ariyar, who executed a settlement deed, dated 06.02.1956, in favour of the plaintiff and the defendants 1 to 4. THErefore, the second schedule property is the ancestral property. THE first and second schedule property are the houses. THE 3rd defendant is residing in the first schedule property and the defendants 1,2 and 4 are residing in the second schedule property. THE father of the plaintiff died intestate. THErefore, according to the plaintiff, he is entitled for 1/5th share. THErefore he issued a notice dated 17.06.1987 and the defendants 1 to 3 sent a reply dated 26.06.1987. THEy agreed for partition in the first schedule property and refused partition in the second schedule property.

(3.) AGGRIEVED by the judgment and decree, the plaintiff has preferred an appeal before the Sub Court, Nagercoil. The learned Sub-Judge, Nagercoil, also concurred with the trial Court and dismissed the appeal. Against which the plaintiff has preferred the present second appeal on the following grounds:- (i) The decision of the lower appellate Court so far as it relates to item No.2 of the plaint schedule suit property is concerned is against law, weight of evidence and probabilities of the case. (ii) the lower appellate Court has failed to consider what was the intention of Paramarthalinga Ariyar while he executed the settlement deed Ex.AI, dated 06.02.1956. (iii) The Courts below have not properly interpreted the condition No.2 stated in the settlement deed, Ex.A1, which runs as follows:- ("in Tamil") (iv) The findings of the lower Courts that the 1st respondent/1st defendant alone became entitled to the suit 2nd item of the property after the death of Ramalakshmi are erroneous. (v) The findings of the lower Courts that Paramarthalinga Ariyar had not created any interest in the suit item 2 of the property under Ex.A1 in favour of the appellant and respondents 2 to 4 (plaintiff and defendants 2 to 4) is not correct.