Decided on July 08,1970



- (1.) THE plaintiff, who has failed in both the Courts below, is the common appellant. He is now dead and is represented by his legal representatives. On a claim that the properties described in the plaint in O. S. 69 of 1960 and in the first schedule to the plaint in O. S. 70 of 1960, from out of which the second appeals arise, were not the subject-matter of O. S. 76 of 1948, and the compromise decree passed therein, though covered those properties, was not registered, he sought in the two suits to recover their possession. The suits were resisted on the ground that the properties did form part of the subject-matter of O. S. 76 of 1948, that therefore, no registration was required, and that, in any case, the plaintiff would not be entitled to recover them, because of the doctrine of part performance. The Courts below concurrently found that although the properties were not in the plaint in O. S. 76 of 1948, they constituted the subject-matter of the suit and that, in any event, the defence based on part performance was well founded.
(2.) THE same grounds of the plaintiff are reiterated before us, in addition to a contention that the compromise decree in O. S. 76 of 1948 was a family settlement to which Section 53-A of the Transfer of Property Act would not be applicable.
(3.) ON the death of one Pappu Reddiar in October 1936, his two widows and his sister, Chinnammal, purported to surrender their interest in his estate in favour of chinnamal's son, Muthuswami Reddiar. The plaintiff is the son of Muthuswami reddiar by adoption. Pappu Reddiar's elder brother, Venkatasubba Reddiar, had died in 1917, leaving his two widows and two daughters by one of them. The first defendant in the present suits was claimed to be the adopted son of one of these two widows. One of the daughters, by name, Amaravathi, of Venkatasubba reddiar, had been married to Muthuswami Reddiar. The widows and daughters of venkatasubba Reddiar instituted O. S. 76 of 1948 and laid claim to the estate of pappu Reddiar, contending that Venkatasubba Reddiar and his brother having hailed from Travancore, when they came to settle in Tirunelveli District, they continued to be governed by their personal law from there, according to which, on the death of Pappu Reddiar, his estate devolved on the widows of his brother, venkatasubba Reddiar. Muthuswami Reddiar and his adopted son, the present plaintiff, Pappu Reddiar, were parties to that suit. The suit was eventually settled and it ended in a compromise decree which the plaintiff as well as his father subscribed to. By that compromise, in consideration of the widows and the daughters of Venkatasubba Reddiar giving up their claim in certain particulars, certain properties were allotted to them including Ayyadurai, the first defendant, and of those properties, some were admittedly the present properties of muthuswami Reddiar, which are now in question, but as we said, were not in the plaint schedule in O. S. No. 76 of 1948.;

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