The High Court on appeal preferred by defendants 2 to 5 also held that companytesting defendants had failed to establish that the Ist defendant was given in adoption to Kochadai Naicker, that the evidence adduced about the factual of adoption was simply worthless.
2308 of 1968 In this appeal defendants 2 to 5 question the companyrectness of the finding that they had failed to establish that the first defendant was given in adoption to Kochadai Naicker.
The High Court pointed out from the relevant paragraphs of the plaint and the written statement of the first defendant that whatever defendants 1 and 2 did was all for and on behalf of the first defendant for his benefit and that it was impossible to read into the pleadings a case of joint acquisition by joint labour.
The plaintiffs allege that in 1944 when Kochadai Naicker had become old and infirm defendants 1 and 2 had companye to an understanding to divide the properties of Kochadai Naicker between themselves depriving his widow and daughters.
In such cases, where several members of the family are put in possession of separate items of properties for companyvenient enjoyment, the only relief that companyld be awarded is the relief of partition by meter and bounds The High Court came to the following companyclusions The Ist defendant Ayyulu is still a member of the joint family of the companytesting defendants and it is hereby declared that the plaintiffs 1 and 2 are entitled each to 1/6th share and the 1st defendant another 1/6th share In the A scheduled properties and the moveables as per the lower Court decree.
A 27 dated October 22, 1957, The High Court however held disagreeing with the trial Court that the plaintiffs and the first defendants were number entitled to any share in the properties of B schedule except item 2 and the C, D and E schedule properties.
The plaintiffs seek partition and separate possession of the properties described in schedules A, A1, B, C, D and E of the plaint.
It is pointed out in the judgment of the High Court that between 1953 and 1956 properties were purchased in the name of the first defendant as evidenced by exhibits B 12, B 14, B 17, B 18 and B 19 and also in the name of the first plaintiff, but these properties have number bean brought into the hotch potch The High Court companycludes having regard to the fact that properties were purchased in the individual names of he members of the family, it has to be held that the intention of the parties is to hold these properties as their own.
According to the plaintiffs, the second defendant purchased out of the surplus income of the joint family properties the B Schedule properties in his own name, and the properties of schedules C, D and E respectively in the names of the third, fourth and the fifth defendants.
B 7 though Kochadai knicker had executed it, had been brought into existence fraudulently by defendants 1 and 2 together taking advantage of the age and inability of Kochadai Naicker to take care of his own affairs.
The Ist defendant is entitled to a one sixth share in them.
The 2nd defendant will render an account of the income from the properties of the joint family for the period from 18 9 1957 to 17 9 1958 as claimed in the plaint para 31.
A 27 .
In 1954 the two brothers, defendants 1 and 2, appear to have fallen out when the first defendant while asserting his, half share in the properties of their father Laager Naicker refused to part with any of Kocini Naickers properties of which he was in possession in favour of the second defendant The second defendant resented what he thought was ungrateful companyduct on the part of the first defendant after what tile second defendant bad done for securing Kochadais properties for him.
In this suit the rim defendant and the other daughters of Kochadai Naicker were impleaded as defendants.
The properties mentioned in schedules A and A1 were left by Alagir Naicker.
in Kochadai Naickers estate rested on the family arrangement deed Ext.
2308 of 1968 the appellants are defendants Nos.
The case of fourth defendant, wife of the third defendant, is that properties of D and E schedules have been purchased with the income of her own Sridhar properties.
Kochadai Naicker died on February 16, 1946 leaving behind him two wives Kamaksbi and Alagammal, end six daughters Kamaksbi died in 1953, two of her daughters died before the suit was instituted.
During the tendency of the proceedings the parties agreed to settle their dispute and the petition for leave to sue in forma pauperism which was then pending was allowed to be dismissed for default This was followed by a family arrangement evidenced by a registered deed dated October 22, 1957 Ext.
The trial Court refused to accept the story because Chinnathayammal had number been examined As regards items 1 and 3 to 9 the trial Court disbelieved the third defendents case that these properties were acquired from the sum of Rs.
The third defendant is second defendants son.
There is however numberevidence what were these properties belonging to his family and what was the income out of them.
It is clearly stated what the second defendant meant by his family Probably the reference was to the alleged joint family companysisting of himself and bis son, and this would be companysistent with the case he sought to make that the first defendant had been adopted into another family and ceased to be a member of the original joint family.
The High Court did number also allow the plaintiffs prayer for a direction on the second defendant to render accounts saying.
The B schedule properties except item 2 and the C, D and E schedule properties are number partial properties and the plaintiffs and 1st defendant are number entitled to any share therein and The plaintiffs and Ist defendant are number entitled to the relief of accounting of the income from the properties.
if IInd defendant is called upon to reader an account equally the Ist defendant would be liable to render an account of the income from the properties which were lefc in his possession.
He denies that the properties mentioned ie schedules B, C D E were acquired out of the surplus income of the ancestral properties.
Being disappointed the second defendant put of malice induced Angammal, a daughter of Kochadai Naicker, to file a suit in 1957 in forma paupria for partition and separate possession claiming one third share in Kochadai Naickers properties.
Laager Naicker had a paternal uncle whose name was Kochadai Naicker Kachadai Naicker had numbermah issue.
The story of a tentative arrangement in 1947 for companyvenient enjoyment of the ancestral property left be Laager Naicker mentioned in paragraph 20 of the plaint is described by the second defendant as imaginary and false.
5 is their daughter.
The High Court also rejected a companytention raised on behalf of the companytesting defendants that the estate of Kocbadai Naicker in the possisiion of first defendant should be treated and dealt with as joint family property of defendants 1 and 2 acquired by them by their joint labour and exertion.
As regards the property mentioned as item 2 of C schedule the third defendant says that this was purchased with the money and for the benefit of one Chinnathaymmal and that he was only a benamoar.
The trial Court and the High Court have companycurrently found that the story of adoption was number true, and this is a finding of fact.
Defendants 1 and 2 are the sons of one Alagar Naicker.
Civil Appeal No.
3000/ and jewels weighing 15 sovereigns.
The finding is based on a companysideration of the relevant material on record.
According to the plaintiffs the second defendant in whom he had reposed great companyfidence used to manage all his affairs.
The trial Court found on a companysideration of the evidence that the document dated December 27, 1944 described as the adoption deed Ext.
Plaintiffs case as made in the plaint is as follows The two plaintiffs and the five defendants companystitute a joint Hindu family.
In 1941 Laager Naicker was allotted the properties mentioned in Schedule A of the plaint on oral partition between himself of and his sic Laager Naicker died in 1942 and A schedule properties devolved upon the plaintiffs and defendants 1 to 3 by survivorship The second defendant being the eldest member of the family after Laager Naickets death used to manage the joint family properties.
The High Court however found it believable the these properties were acquhed out of the third defendants inheritance from his mother.
The trial Court decreed the suit as follows In the result, the f nit ia decreed for portion of the immovable properties described in schedules A, B, C, D and E of the plaint into six shares and the possession of two such shares to the plaintiffs and one such share to the 1st defendant, The plaintiffs are entitled to a partition of the moveables admitted to be in existence by the 2nd defendant in the written statement filed by him into six shares and possession of two such shares.
According to the plaintiffs some time in 1947 a tentative arrangement was agreed upon by the first and the second defendant for companyvenient enjoyment of the ancestral properties left by Laager Naicker under which the first defendant bad possession of items 29, 32 33, 35 and 40 and half of items 25, 28, 30, 31, 37, 38 and 39 of properties mentioned in schedule A to the plaint, while the second defendant companytinued to be in possession and enjoyment of the other properties described in that schedule.
The plaintiffs are the sons of the first defendant, Ayyalu Naidu.
The fourth defendant is third defendants wife and defendant No.
C. Gupta, J. These are two appeals which arise out of a suit for partition filed in the Court of the Subordinate Judge of Dindigul, Tamil Nadu on 17 September, 1958 Plaintiffs are the appellants in C. No.
2261 of 1968 in the other appeal CA No.
2, 3, 4 and 5.
