Decided on October 17,1955



- (1.) This appeal is by the plaintiff in a suit for declaration of title and for partition and is concerned with the availability of certain items of properties for purpose of partition between the contending parties.
(2.) The dispute is between plaintiff and defendants 1, 3 and 4 on the one side and the 2nd defendant on the other, and centres round items 1 to 8 of the plaint A schedule. These disputed properties along with others were the subject of a prior suit for partition in the tarwad of one Easwari Pillai filed as O.S. No. 77 of 1105 of the Nagercoil District Court. Easwari Pillai was the 7th defendant in that suit and her son Velayudhan Pillai since deceased was the 2nd defendant. Easwari Pillai and Velayudhan Pillai filed their respective written statements in that suit as Exts. VII and VIII on 23.11.1106, each claiming a division by metes and bounds of 1/10 share of the tarwad properties. Velayudhan Pillai died pending suit on 4.9.1107. The parties subsequently compromised their disputes out of court by entering into a partition arrangement evidenced by Ext. XX dated 10.5.1109. This compromise and partition they intimated to court by Ext. IX petition dated 9.6.1109 with the prayer to formally strike off the suit in consequence. We have not got the order on Ext. IX petition but it may be presumed that that petition was allowed and the suit was struck off. Under Ext. XX partition deed, Easwari Pillai was content to take a 1/10 share both in her own capacity and as legal representative of her deceased son just like every other member of the tarwad who participated therein. It is this 1/10 share of Easwari Pillai which comprises plaint schedule items 1 to 8 in dispute herein. The contending parties are the descendants of Easwari Pillais sister, Velu Pillai, plaintiff and defendants 1 and 2 being the children and defendants 3 and 4 being the children of a deceased daughter. The plaintiff supported by defendants 1, 3 and 4 claims partition of items 1 to 8 as against the 2nd defendant on basis of Ext. A gift made by Easwari Pillai in all their joint favour in certain proportion on 17.11.1107 i.e. before Ext. XX partition arrangement was arrived at in O.S. No. 77 of 1105 as aforesaid. The 2nd defendant on the other hand claims exclusive title under a rival gift to himself alone under Ext. I of later date 15.3.1110 i.e., after Ext. XX date from Easwari Pillai. By Ext. A gift, Easwari Pillai purported to transfer the 2/10 share which was the subject of claim in Exts. VII and VIII written statements besides certain self acquisitions of Velayudhan Pillai. By Ext. I gift she specifically transferred the items 1 to 8 which had by that time become ascertained as her share of the tarwad properties. It is the plaintiffs case that Ext. A alone could operate as regards these items and Ext. I executed in derogation of Ext. A was totally ineffective.
(3.) The contention is raised by the 2nd defendant later donee that Ext. A could not operate in law because Easwari Pillai had not attained a division of status by Ext. A date and had accordingly no transferable right to her share at that date. According to 2nd defendant Easwari Pillai obtained her share under and by virtue of Ext. XX and the valid disposition could be Ext. I alone executed thereafter.;

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