GOPALASAMI VASTAD Vs. GOVINDASAMI VASTAD

JUDGEMENT

(1.) This second appeal arises out of a suit for partition instituted by the plaintiff against his brother, the 1st defendant, for a partition of the properties alleged to belong jointly to both. The 2nd defendant is the son of the 1st defendant, and the other defendants are tenants and alienees of some of the properties claiming under the 1st defendant, the 6th defendant being the purchaser of items Nos. 4 to 8 in Schedule A-I, attached to the plaint, and the 14th defendant being the purchaser of a house in Schedule B-II.

(2.) The appeal relates only to three sets of items out of the properties claimed in the suit, namely, item No. 1 in A-I Schedule, items Nos. 4 to 8 in the same Schedule and the house in B-II Schedule.

(3.) The plaintiff had previously instituted a suit (Original Suit No. 35 of 1893) in the Subordinate Court of Tanjore, for a partition of the family properties, while he was a minor, through his mother as his next friend. The suit ended in a compromise (Exhibit I), dated the 20th July 1894, which was duly presented to the Court and sanctioned by it by its order-- Exhibit XIII. The Court directed a decree to be drawn up in terms of the compromise. But, as a matter of fact, no decree was actually drawn up. It was stated to us at the hearing that, subsequent to the passing of the decree of the lower Appellate Court in this case, such a decree has been passed in accordance with the terms of the compromise, and the case has proceeded in this Court on the footing that the compromise between the parties has passed into a decree. Of the items which form the subject-matter of this second appeal, items Nos. 4 to 8 in Schedule A-I were not included in Original Suit No. 35. They had been sold to the 6th defendant by the 1st defendant previous to the suit, and the sale was not questioned by the next friend. The house in Schedule B-II was not then in existence but was purchased by the 1st defendant, subsequently, under circumstances which will be referred to hereafter.