S PARAMASIVAM PILLAI Vs. MINAKSHISUNDARAM PILLAI DEAD

JUDGEMENT

(1.) The first defendant is the appellant in Appeal No. 314 of 1918. The suit is by one Meenakshi Sundaram Pillai for a division of the plaint property which belonged to him and to the first defendant or for the value of his share, should the Court consider that it was inequitable that he should get possession of a moiety of the plaint land. The main allegations in the plaint are, that plaintiff's father Chellaperumal Pillai was a First Grade Pleader at Sattur; that he purchased the plaint land in 1900 along with the first defendant under Exhibit D; that his father diedin 1902; that in 1904 when the plaintiff was a minor, the 1 defendant entered into an arrangement with his mother as evidenced by Exhibit A, whereby the plaint plot was allotted to the first defendant and another plot which belonged in common to his father and the first defendant was allotted to him for his share; that he attained majority on 3 January 1914 and that the plaint plot was worth much more than Rs. 500 the value given in Exhibit A; that he was entitled, to be given a moiety of the plaint site as there was no necessity for the execution of Exhibit A by his guardian, and that it was not binding on him. The first defendant pleaded among other things that the arrangement evidenced by Exhibit A was a bona fide arrangement , that the plaint plot was not worth more than five hundred rupees in 1904; that the plot allotted to the plaintiff was the more valuable of the two as it was situated opposite to the District Munsif's Court-house and other public buildings; that he did not act in any way unfairly to the plaintiff, and that the plaintiff's guardian had "the very competent, independent and absolutely disinterested advice of the plaintiff's father's best and trusted friend;" that the arrangement was beneficial to the plaintiff and that he was not entitled to claim a moiety of the plaint land, and that the suit was barred by limitation. The other defendants are alienees from the first defendant who have built houses on the plaint land. They adopted the defence of the first defendant and added that in any event the plaintiff was not entitled to possession of the plaint land; that they had invested large sums of money in erecting houses, and that the plaintiff was not entitled to ask that they should be pulled dowh and removed.

(2.) The Temporary Subordinate Judge, Ramnad, held that the plaintiff's suit was not barred by limitation; that the arrangement evidenced by Exhibit A was without any necessity; that the first defendant did not act bona fide and that the other defendants were not bona fide purchasers for value, and gave a decree to the plaintiff for a sum of Rs. 16,500 being the value of a half share of the plaint property. Against this decree the first defendant has preferred Appeal No. 314 of 1918. The other defendants have preferred Appeal No. 60 of 1919. It is unnecessary to consider Appeal No. 60 of 1919 as the appellants did not bring the legal representatives of the first respondent on record within the time allowed by law. The plaintiff who was first respondent died in April 1921 and the application of the Vakil at the time of the hearing of the appeal to be allowed to bring on record the legal representatives of the plaintiff-respondent cannot be entertained after the lapse of one year and three months. The decree of the Subordinate Judge will stand so far as the appellants in Appeal No. 60 of 1919 are concerned. Appeal No. 60 is dismissed.

(3.) Appeal No. 314 of 1918 was argued at great length and the main contention for the appellant was that Exhibit A, being an ordinary partition arrangement unless the plaintiff could show that it was brought about by fraud, or any improper act on the part of the first defendant, it could not be set aside, and that the Subordinate Judge had wrongly thrown the onus of proving the necessity for the transaction on the first defendant and that the finding of the Subordinate Judge was vitiated by his wrong view of the law as regards the onus of proof. It is necessary to see what the facts are before applying the law to the facts of the case. The admitted facts are that the plaintiff's father Chellaperumal Pillai was a well-known First Grade Pleader in Sattur and acquired considerable property. He purchased the plaint property in 1900 under Exhibit D for Rs. 500 in his name as well as in that of the first defendant. He died In 1902 leaving the plaintiff and another son aged about 3 and Ids wife aged about 23 or 24 y?ar3. His wife was his own sister's daughter and after his death his affairs were managed by his widow and sister. In his Will he appointed four persons to assist the widow in the management of his estate one of whom is defendants witness No. 1. Another piece of land consisting of 4 plots situated opposite to the present District Munsifs Court-house was purchased for Rs. 500 in the joint names of first defendant and Chellaperunial Pillai. Though the document evidencing the purchase of the latter four plots has not been exhibited, yet it can be fairly held to have been proved that it was purchased in 1897 for Rs. 500. It is also well-known that Sattur is a place of commercial importance. There are several Cotton Mills and a number of Factories. The plaint site is near the road leading to the Railway Station, one of the principal thoroughfares of the town. The extent of the plaint land is 11,000 kulis. The extent of the other plot opposite to the District. Munsifs Court-house is 512 kulis. The plaintiff was a minor of about seven years of age and his mother a young Hindu widow at the time of Exhibit A. There is no evidence that there was any need for partition in 1904. The plaintiff's father had acquired before 1900 two plots of land called Marakadai or Timber depot land adjoining the road to the Railway Station which could connect the plaint land with the road. There was no access from the plaint laud to any of the public roads in 1904 and, subsequent to the date of Exhibit A, the first defendant bought the plots to the south and north of the plaint land in order to get access to the road on either sides by Exhibits III and H. There is also evidence to show that from 1897 people began to build near and about the plaint land. There is no evidence, that the plaintiff's mother consulted any independent person with regard to the division of the plaint land excepting defendants witness No. 1 about whose evidence I shall have to say something later on.