RAMASAMI CHETTI Vs. ALAGIRISAMI CHETTI

JUDGEMENT

(1.) The appellant sues for a partition of the 100 kulis of punja land mentioned in the plaint and for the recovery of his one-third share therein. The land is situated in the Inam village of Attukkulam, which originally belonged in equal moieties to two brothers,--the great- grandfather of the 10 defendant and the great-grandfather of Lakshmana Iyer, on whose death his half share devolved on his daughter, the 2nd defendant. The half share of the great- grandfather of the 10 defendant devolved, share and share alike, upon the 10 defendant, his brother one Peria Lakshmana Iyer and his brother's son, the 9 defendant. The village was thus in the possession of the 2nd, the 9 and the 10 defendants and one Peria Lakshmana Iyer, as tenants in common, the 2nd defendant's share being one half and those of the 9 and 10 defendants and Peria Lakshmana Iyer being one-sixth each. These persons originally had only the melvaram right in the 100 kulis of land in question, the right of occupancy or kudivaram right being with certain ryots, who sabsequently, from time to time, relinquished their rights of occupancy prior to 1883 and thus these defendants and Peria Lakshmama Iyer became the full owners of the 100 kulis, i. e., of both the varams therein. One Nagulusami Chetti obtained a decree against the 10 defendant in Original Suit No. 215 of 1887 and in execution thereof, he, on the 30 October 1888, attached (Exhibit VI) the 10 defend ant's share and interest in the village, describing the same under two items, the first item as the one-sixth share belonging to the defendant in the village (the extent being 100 cawnies of nanja and 900 kalis of punja) and the second item as the right to both the varams in the 100 kulis of punja (now in question), a note being added that the defendants entire right and interest in the properties were attached. The boundaries given in respect of; the first item are apparently the boundaries of the whole village (thus including the 100 kulis forming the second item), The boundaries given in respect of the second item are apparently the boundaries of the 100 kulis alone. The second item was sold on the 5 February 1889 and purchased for Rs. 102 by the 1 defendant (in this suit), the sale being confirmed (vide Exhibit XIII) on the 10 April 1889. The first item, or rather one-half of the first item, i. e., half of one-sixth share belonging to the 10 defendant, was sold on the 1 April 1889 and purchased by the decree-holder, Nagulusami Chetti, for Rs. 75, the sale being confirmed on the 18 June 1889 (Exhibit A). The same Nagulusami Chetti obtained a decree against the widow and legal representative of Peria Lakshmana Iyer (aforesaid) the owner of an one-sixth share and in execution thereof brought to sale and purchased for Rs. 75, on the 1 July 1889, the one-sixth share in the village, belonging to the judgment-debtor (Exhibit B), the sale being confirmed on the 2 September, 1889. The description, extent and boundaries of the property are substantially the same as in Exhibit A. The same Nagulusami Chetti obtained a decree against the 9 defendant and in execution thereof attached (Exhibit L) his one-sixth share in the village, the description, extent and boundaries of the property being substantially the same as in Exhibits A. and B. The decree-holder himself became the purchaser (for Rs. 125) on the 14 April 1891, the sale being confirmed on the 29 June 1891 (vide Exhibit C). The description of the property in Exhibit C is identical with that in Exhibit L. Both in 1 and in C, reference is made to the defendaut's one-sixth share in the beasts, trees, tittu, tidal, tank, bund, &c. and in this respect they differ from Exhibits A, B and XIII. While the 9 defendant's share was under attachment, the 1 defendant, on the 10 March 1891, preferred a claim under Section 278, Civil Procedure Code, stating that he had become the purchaser of the 100 kulis of punja (now in question) in execution of the decree in Original Suit No. 215 of 1887 (already referred to), that the 9 defendant had no manner of right or enjoyment therein, that Nagulusami Chetti, the plaintiff, had fraudulently included the same in the attachment and that it should be released therefrom (vide Exhibit O). The District Munsif fixed the 13th April 1891 to enable the parties to adduce evidence in regard to the claim petition and, on the 14 April, he held that the evidence clearly established that the 10 defendant, the defendant in Original Suit No. 215 of 1887, had only a sixth share in the 100 kulis and dismissing the claim preferred by the 1 defendant, ordered that the 9 defendant's one- sixth interest in the 100 kulis should also be sold; and on the same day, throne-sixth share of the 9 defendant in the village was sold and purchased by Nagulusami himself. After this sale, if, as alleged by the plaintiff, the 10 defendant had only a sixth share in the 100 kulis in question (as in the remaining portion of the village) and under Exhibits B and C, Nagulusami became the purchaser of the one-sixth share of Peria Lakshmana Iyer and of the one-sixth share of the 9 defendant, in the whole Village including the 100 kulis in question, the position of the various parties concerned in the village would b6 as follows :--The second defendant would continue to possess one-half share in the whole villlage : Nagulusami would bo the owner of one-third share in the whole village and of a furthor one-twelfth share thereof exclu-sive of the 100 kulis in question; the 10 defendant would bo the owner of the remaining one-twelfth share of the whole village exclusive of the 100 kulis in question, while the 1 defendant would have a sixth share in the 100 kulis in question.

(2.) If, however, as alleged by the 1 defendant, the 10 defendant was the separate and exclusive owner of the 100 kulis in question, the position would be as follows :--The 1st defendant would have the sole and exclusive ownership of the 100 kulis and the rest of the Village alone would be owned by the 2nd defendant, Nagulusami Chetti and the 10th defendant as tenants in common, their shares, being respectively one-half, five-twelfths and one-twelfth.

(3.) Nagulusami Chetti sold the entire interest acquired by him in the village, under Exhibits A, B and C, to one Alagappa Chetti, on the 11 May 1894, for Rs. 500 (Exhibit D) and the latter sold the same in equal moieties to the 10 and 9 defendants on the 11 October 1897 (Exhibits E and F) for Rs. 540 each. The 9 defendant thus became the owner of five twenty- fourths and the 10 defendant the owner of seven twenty-fourths (five twenty-fourths plus a twelfth). Whether such ownership extended over the entire village including the 100 kulis in question or only over the rest of the village (excluding the 100 kulis) will be considered later on.