MUTHU NADAR Vs. CHINNADORAI NADAR

JUDGEMENT

(1.) THIS second appeal is preferred by defendant 3 against the decree of the learned Subordinate Judge of Tuticorin in A. S. No. 65 of 1945. The lower appellate Court granted a decree in favour of the plaintiff for partition and separate possession of 5/18 share in the B schedule properties on payment of Rs. 225. Defendant 3 has preferred an appeal objecting to the decree for partition passed in favour of the plaintiff. Defendants 1, 2 and 4 sail along with defendant 3 though they have not preferred an appeal. They have however been made respondents to the appeal and hence the case of defendants 1 to 4 falls to be considered in this second appeal.

(2.) THE plaintiff's father created a mortgage over his share of certain property on foot of which a suit, O. S. No. 261 of 1926, was filed by the mortgagee. On 22 -7 -1930 a final decree was passed against the plaintiff's father for a sum of Rs. 500. The plaintiff's father died in June 1933. He left behind him two sons of whom the plaintiff is the younger, his elder brother being Anthiramudaya Nadar. He also left a widow Vaduvathi Nadathi who is defendant 5 in the suit. From the suit register extract, Ex. D -3, filed in the case it appears that the personal remedy on the mortgage had become barred and that two infructuous execution applications that had been filed by the decree -holder had been dismissed on 9 -11 -1933 and 13 -9 -1935. During the course of the execution proceedings the plaintiff and his elder brother were brought on record on 21 -8 -1935 but the execution petition was allowed to be dismissed by the decree -bolder. It does not appear that any amount was realised towards this decree as a result of the execution applications.

(3.) THERE was a partition suit, O. S. No. 37 of 1931 on the file of the Sub -Court of Tuticorin, in which the present plaintiff was defendant 133 and his elder brother was defendant 132. The plaintiff was described as a minor represented by his elder brother as guardian ad litem.