SINNA SUBBA GOUNDAN Vs. MRANGAI GOUNDAN

JUDGEMENT

(1.) The plaintiff is the appellant in this second appeal. He filed a suit for partition and for possession of his half share in the properties after setting aside certain alienations. The first defendant is his father who was adjudicated an insolvent on 25 June, 1935. The Official Receiver, Coimbatore, is the second defendant. The sixth defendant is the plaintiff's brother. The fourth defendant claims the properties comprised in this second appeal, which are described in item 1 of the B schedule, under a purchase by him from the Official Receiver on 18 December, 1935. The plaintiff states that the property is joint family property belonging to him and the father and that he is entitled to a half share therein, and that the Official Receiver could not sell his half share to the fourth defendant. The District Munsiff accepted his claim and gave him a decree for a one-third share as there were two other co-parceners, namely, the father and the sixth defendant. On appeal by the fourth defendant, the learned District Judge of Coimbatore dismissed the plaintiff's suit holding that the property was not joint family property but was the self-acquisition of the father, that the plaintiff's title was adjudicated upon and finally decided against him in the proceedings that took place in the insolvency of the father and that the suit should have been brought within one year from the date of the order of the High Court dismissing the plaintiff's civil revision petition against the order made against him in the insolvency proceedings.

(2.) No attempt has been made on the side of the respondent to support the view that the suit is barred by limitation under Art. 11(A) of the Limitation Act.

(3.) The conclusion of the learned District Judge, differing in this respect from what the District Munsiff found, that the property could not be held to be joint family property is based on reasoning which cannot be accepted, as it is mostly speculative in nature. The first defendant, who was the father, was in possession of a number of items of properties which were dealt with as joint family properties in a partition between him and the plaintiff on the one hand and Periya Subbaya Goundan, a son by a pre-deceased wife on the other. The partition deed is Ex. P (1) dated 3 August, 1928. Half of the suit property had been purchased by the father under Ex. D-14 on 27 November, 1927. There was a sale deed in his favour and another Marudachala. The other half was bought by the father under Ex. D-16 on 50 January, 1929. The half share that was purchased prior to the partiton deed is dealt with as joint family property in the partition deed and is allotted to the share of the father and the present plaintiff. The fact that Periya Subbayya Goundan stated on the previous occasion when he was examined in the insolvency proceedings that he did not get any share in the property is of no significance whatever; nor is the circumstance that the father borrowed money for purchasing this property either in 1927 or 1929. He was apparently the managing member of the family and an acquisition by him of property when he occupied that position with the aid of borrowed moneys cannot be said to be a self acquisition straightaway without any further proof or material. These, however, are circum, stances on which the learned Judge has relied for his conclusion that the property is the self acquired property of the father and not joint family property as contended by the plaintiff. Whether the acquisition under Ex. D-16 of the other half share, which was after the date of the partition, would stand on a different footing is another matter.