That Plaint A Schedule item number.1 to 9 were self acquired properties of appellant number1 and 3 purchased out of their own funds prior to 1970 and number out of joint family funds.
These items were also number included in the partition dated 19.07.1970.
Further it was observed that though respondents were entitled to share in Plaint A Schedule item number.
Further Mottaya Poosali executed a registered will dated 23.03.1977 bequeathing his share in Plaint A Schedule item number.15, 16 and his self acquired properties item number.
In the written statement, filed by appellant number1 and adopted by appellant number3, wife of appellant number 1, it was averred that all the properties included in Plaint A and B Schedules were number joint family properties and respondents are entitled to claim a share only with respect to Plaint A Schedule item number.11 to 21 and 28 which were allotted to Mottaya Poosali under partition deed dated 19.07.1970 and respondents are in joint possession with respect to these properties only.
Being aggrieved, respondents preferred Appeal Suit number 162/1983, wherein issue as to the right of respondents to claim share in Plaint A Schedule item number.
Respondents prayed for a decree of partition and separate possession of 4/9 share in Plaint A Schedule item number.1 to 14, 17 to 21 and 27 to 29 and Plaint B Schedule items and to an extent of 1/3 share in Plaint A Schedule item number.15, 16, 22 to 26 and 29 alongwith future income and companyts of suit.
That settlement deed dated 22.03.1977 and will dated 23.03.1977 executed by Mottaya Poosali in favour of Manicka Poosali were valid and genuine and respondents are number entitled to any share in properties included in both the deeds.
B 15 dated 19.01.1956.
It was further averred that settlement deed dated 22.03.1977 executed by Mottaya Poosali in favour of Manicka Poosali is valid only to extent of 1/3 share of Mottaya Poosali and will dated 23.03.1977 executed by Mottaya Poosali in favour of Manicka Poosali is number valid and at best companyld be valid with respect to 1/3 share of Mottaya Poosali since the said properties were joint family properties.
Mottaya Poosali executed a settlement deed dated 22.03.1977 in favour of Manicka Poosali companyveying his share in Plaint A Schedule item number.11 to 14, 17 to 20 and 28 allotted to him in partition dated 19.07.1970.
Facts necessary for the disposal of this appeal are as follows One Thandavaraya Poosali had three sons Mottaya Poosali, Ayyasamy Poosali and Ammasi Poosali.
B 14 dated 20.01.1955 and item number.
Appellate Court observed that Plaint A Schedule item number.
22 to 26 and 29 in favour of Manicka Poosali.
11 to 21 and 28 allotted to him vide partition dated 19.07.1970.
B 13 dated 29.4.1953, item number26 was purchased vide sale deed Ex.
Mottaya Poosali in partition was allotted properties item number.11 to 21 and 28 only.
Appellate Court partly allowed the appeal of respondents upholding the findings of Trial Court with respect to all properties, except Plaint A Schedule item number10.
B 12 dated 04.06.1952, item number22 was purchased vide sale deed Ex.
22 to 26 29 were self acquired properties of Mottaya Poosali.
The same were number a part of larger Joint Hindu Family properties and for this reason they were number included in partition dated 19.07.1970.
Mottaya Poosali died on 01.11.1978.
That respondents cannot claim any share in Plaint B Schedule items and Plaint A Schedule item number.
This clearly demonstrates that the properties item number.22 to 26 and 29 were the self acquired properties of Mottaya Poosali and were treated by him as such throughout.
That respondents were entitled to preliminary decree for partition and separate possession of 7/27 share only in Plaint A Schedule item number.11 to 21 and 28 which were allotted to Mottaya Poosali vide partition dated 19.07.1970 and also to the extent of 7/27 share in Plaint B Schedule items.
Trial Court on appraisal of evidence partly decreed the suit of respondents.
1 and 3 and Plaint A Schedule item number.
Respondents preferred Second Appeal number 1017/1985 against judgment and decree of Appellate Court.
Item number.23 24 were purchased vide sale deed Ex.
During this period Mottaya Poosali was a member of the Joint Hindu Family companysisting of himself and his two brothers Ayyaswamy Poosali and Ammasi Poosali.
In the registered partition deed dated 19th July, 1970 between Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali these properties were treated to be the self acquired properties of Mottaya Poosali and were number subjected to the partition.
Had these properties been purchased with the funds of the Hindu Joint Family property, then the same would have formed part of the Joint Hindu Family companysisting of Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali.
Appellants are Manicka Poosali, appellant No.1 since deceased and number represented through his LRs.,
25 29 were purchased vide sale deed Ex.
In the plaint, it was averred that Plaint A Schedule item number.1 to 9 were joint family properties of Mottaya Poosali and Plaint A Schedule item number.10 to 29 were allotted to Mottaya Poosali in partition dated 19.07.1970 and after his death they are entitled to a share in those properties.
10 and 27 are number owned by family number and were wrongly claimed in Plaint.
Trial Court held that Plaint A Schedule item number.
22 to 26 and 29 were self acquired properties of Mottaya Poosali and settlement deed dated 22.03.1977 and will dated 23.03.1977 executed by Mottaya Poosali in favour of Manicka Poosali were valid.
That Plaint A Schedule item number.22 to 26 and 29 were the self acquired properties of Mottaya Poosali purchased prior to 1970 out of his separate funds earned by purchasing the produce of tamarind trees on highway roads and selling them in the open market.
Plaint A Schedule item number 10 was also found by Appellate Court to be forming part of the joint family property of Mottaya Poosali along with Plaint A Schedule item number.
In the present case, the dispute is between the children of Mottaya Poosali over the division of property inherited by them.
1 to 9, 18, 22 to 26 and 29 was raised.
Sadaya Poosali died on 9.5.1962 leaving behind his widow and daughter respondent number.1 and 2 respectively.
Mottaya Poosali had two sons Manicka Poosali, Sadaya Poosali and a dauthter, Ellammal.
The partition between Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali took place in the year 1970.
In 1980, respondents instituted original suit number806/1980 against appellants for partition and separate possession of their share in respect of whole Plaint A and B Schedule items.
1 to 9 were self acquired properties of appellant number.1 and 3 and Plaint A Schedule item number.
That settlement deed dated 22.03.1977 and registered will dated 23.03.1977 executed by Mottaya Poosali in favour of appellant number1 are true and valid, executed by Mottaya Poosali in sound disposing mind on his own after understanding the companytents of the same.
1 to 9 were self acquired properties of appellant number.
22 to 26 and 29, this appeal has been preferred by original defendants.
10 to 21 and 28, but since numbercross appeal is preferred by appellants agitating the quantum of share, respondents were entitled to take the share as given by Trial Court.
They would be referred to as the appellants herein.
his wife Mahalakshmi, appellant No.3 and Ellammal, his sister and appellant No.2 herein.
Through a registered partition deed dated 19.07.1970 between Mottaya Poosali and his brothers, Plaint A Schedule item Nos.11 to 21 and 28 were allotted to Mottaya Poosali out of their joint family properties.
BHAN, J. This appeal by grant of leave has been filed by the original defendants the appellants herein, against the judgment and decree of the High Court at Madras granting preliminary decree of partition and separate possession to plaintiffs the respondents herein, with respect to certain suit properties setting aside the judgment and decree of Trial Court as well as that of Lower Appellate Court, wherein aforesaid decree with respect to same properties had been denied to respondents.
