- (1.) THIS appeal suit is directed against the judgment and decree dated 19.8.1986 rendered in O.S.No.487 of 1983 by the Court of Subordinate Judge, Madurai thereby dismissing the suit filed by the appellants herein against the respondents 1 to 8 praying to (a) confirm allotting the property described in "E" schedule in the partition deed dated 6.9.1946 to the plaintiffs, (b) order partition and separate possession by metes and bounds of the properties described in schedules "D" and "F" of the partition deed dated 6.9.1946 into four shares and allot a portion of such share to the plaintiffs, (c) partition and separate possession by metes and bounds of the lands described in "B" schedule of the plaint, (d) appoint a commission for the said purpose, (e) direct the defendants to pay the mesne profits and costs of the suit.
(2.) THE plaint averments are that the properties mentioned in "A" schedule are the houses bearing door No.80 in T.S.No.157/2 and door No.81 in T.S.No.157/1of East Marret Street inMadurai Town: that the properties mentioned in B schedule are the lands situate in Kodikkulam village: that the first plaintiff and defendants 1, 7 and 8 are the brothers: that the defendants 4 to 6 are the undivided sons of the 7th defendants: that defendants 2 and 3 are the alieniees of the 8th defendant: that the first plaintiff and his sons the second and third plaintiffs constitute a Hindu Joint Family and first plaintiff is the Manager of the said family. The further averments of the plaint are that the properties shown in "A" and "B" schedules originally belonged to the joint family consisting of the first plaintiff, defendants 1, 7 and 8 and the late Lakshmana Iyer and their father Vasudeva Iyer and mother Kaveri Ammal: that Vasudeva Iyer effected partition of their properties under registered partition deed dated 6.9.1946 as per which "B" schedule properties were allotted to the share of the first plaintiff. "F" schedule properties were allotted to the parents with life estate and after their lifetime to be divided among their five sons viz., the first plaintiff and defendants 1, 7 and 8 and Lakshmana Iyer "D" schedule properties were allotted to the share of Lakshmana Iyer. The further case of the plaintiffs is that as per the terms of the said partition deed, E schedule property was allotted to the first plaintiff, who has been in possession and enjoyment of the same effecting the payment of taxes: that Lakshmana Iyer died a Bachelor and intestate in the year 1947 and the father Vasudeva Iyer died in 1955 and the mother Kaveri Ammal also died in 1962: that after the death of parents, the plaintiffs alone continued to be in possession and enjoyment of the whole house including "D" Schedule and "F" schedule properties: that on the death of Lakshmana Iyer, the first plaintiff and defendants 1, 7 and 8 are each entitled to 1/4 share in "D" schedule: that the first plaintiff, defendants 1, 7 and 8 and their father Vasudeva Iyer were carrying on business in textiles under the name and style of "L.S.Vasudeva Iyer and Sons" as a partnership concern till 1978: that defendants 1, 7 and 8 were residing in different houses since they were not given any portion in the suit properly in the partition. The further case of the plaintiffs as per the plaint averments is that during mid 1970, the defendants 1, 7 and 8 demanded their share in "D" and "F" schedule properties for which the first plaintiff agreed for the defendants 1, 7 and 8 respectively to reside in the Southern, Eastern and North-Eastern portions and that "D" and "F" schedules be divided by metes and bounds by separate document: that they started occupying those portions in the middle of 1970: that due to differences that arose among the ladyfolks in the family, they erected a wall North to South about the Deepavali time of 1971: that the contention of the defendants 1, 7 and 8 that they re-united mixed "D", "E" and "F" schedule properties and divided them into four shares each taking such a divided share is false and untenable: that the alleged oral partition itself is false: that the first plaintiff never intended to part with any portion of "E" schedule allotted to him in the partition to defendants 1, 7 and 8 which he keeps in his possession and enjoyment but when he demanded defendants 1, 7 and 8 to effect partition of "D" and "F" Schedule properties, they evaded and hence they have to be divided by metes and bounds between himself and the defendants 1, 7 and 8: that the 8th defendant appears to have brought into existence two sale deeds dated 6.2.1982 in favour of defendants 2 and 3 which is not supported by any consideration and hence illegal and untenable in law and are not binding on the plaintiffs: that the allegation that after the death of the parents there was an oral partition of the properties allotted to the first plaintiff and the shares of the parents and Lakshmana Iyer 16 years back is a deliberate falsehood: that the defendants 1, 7 and 8 are each entitled to an extent of 158.60 sq.ft. in D schedule and 195.27 sq.ft. in "F" schedule thus totalling 353.87 sq.ft and since 8th defendant has sold an extent of 964.85 sq.ft under the two sale deeds dated 6.2.1982 in favour of the second and third defendants, they are bound to return the excess extent: that even the attempt of defendants 1 and 4 to 6 to sell their shares has been stopped by paper publication alerting the public: that the 7th defendant contends that he had transferred his rights to defendants 4 to 6 on 19.2.1972 which is false and the same is not binding on the plaintiffs: that since it is learnt that the 7th defendant has created insolvency in I.P.No.14 of 1976 on the file of the Court of Subordinate Judge, Madurai, to avoid unnecessary objections, defendants Nos.4 to 6 are impleaded to the suit. With such allegations and further alleging that it is not possible for them to enjoy the properties in common with the defendants, the plaintiffs would ultimately pray to effect a clear partition by metes and bounds and allot the plaintiffs share in E schedule and F and D schedules as per the partition deed dated 9.6.1946. In the written statement filed on behalf of defendants 1, 7 and 8, besides generally denying the allegations of the plaint to be false and incorrect, they would also specifically admit the relationship of the first plaintiff, defendants 1, 7 and 8 brothers but divided brothers by virtue of registered partition deed dated 6.9.1946: that the allegation that the defendants 4 to 6 are the undivided sons of 7th defendant is incorrect and false since they became divided even as early as on 26.1.1972 by means of an unregistered partition list.
(3.) THESE defendants would admit the registered partition deed dated 6.9.1946 executed between the father and Vasudeva Iyer and his sons regarding their family properties then available for partition allotting the "A" schedule to the 7th defendant "B" schedule to the 8th defendant, C schedule to the first defendant. D schedule to the late L.V. Lakshmana Iyer, "E" schedule to the first plaintiff. "F" schedule to their parents Vasudeva Iyer and his wife Kaveri Ammal: that further according to the registered partition deed, the building bearing door Nos.80 and 81 were allotted to late Lakshmana Iyer, the first plaintiff and the parents and they were divided into three shares allotting the Northern portion to the parents, middle portion to the first plaintiff and the Southern portion to late Lakshmana Iyer and since defendants 1, 7 and 8 were not given any share in these two houses, they were given cash, but the partnership business in textile continued under the name and style of "L.S. Vasudeva Iyer and Sons": that after the said partition, defendants, 1, 7 and 8 had separate living and mess: that the first plaintiff was living along with his parents since being a minor: that during the lifetime of the father, the textile business was conducted by himself and his five sons but after his death, it continued as a partnership business among the remaining four sons till 2.5.1966: that subsequently the defendants No.7 and 8 retired from the partnership firm and later it was continued by the first plaintiff and the first defendant from 2.5.1966 to 1978 which met with loss and hence another firm called "M.S.M. Textiles" was constituted in the means of the wives of the first plaintiff and the, first defendant and one Manickam Ammal, wife of Subramanian Chettiar from 4.9.1978 to 9.3.1983: that after Deepavali of 1964, the first plaintiff and defendants 1, 7 and 8 had expressed their desire to divide door Nos.80 and 81 into four portions since Lakshmana Iyer and their parents were dead and their portions have to be divided among the surviving four brothers: that the first plaintiff informed that he had no funds to erect partition wall and the defendants 1, 7 and 8 promised to pay a sum of Rs.8,300 being the value mentioned in the partition deed towards the value of the share of the first plaintiff for door Nos.80 and 81 and the first plaintiff and defendants 1, 7 and 8 have agreed for the said course and the sum of Rs.8,300 was paid by the defendants 1, 7 and 8 to the first plaintiff immediately after Deepavali of 1964 and each of the four had also contributed a sum of Rs.2,000 towards the erection of the partition wall effecting necessary entries in the account books for this contribution thus door Nos.80 and 81 coming to be divided by metes and bound between the four sharers and after such division, they were all living separately in the respective portions each contributing 1/4 share of the property tax payable for both door Nos.80 and 81. The further case of these defendants is that the electrical services were obtained separately in the name of each of the brothers and the parties paid their bills according to the meter reading: that each of them having been provided with separate staircases, latrine bathroom, drainage etc., nothing was enjoyed in common among them thus enjoying their respective portions exclusively and secondly, each of them perfecting their title to their respective shares by adverse possession: that the first plaintiff and his sons have been ousted from enjoyment of the other portions occupied and enjoyed by defendants 1, 7 and 8: that the plaintiffs are estopped from denying the title of the defendants 1, 7 and 8 and that the first plaintiff was fully aware of the said division and reallotment and the same had been purposely and fraudulently suppressed in the plaint. These defendants would also refute the other allegations of paragraph No.10 of the plaint and would further submit that in the middle of the year 1970, defendants 1, 7 and 8 demanded their share in "D" and F scheduled properties of the partition deed dated 6.9. 1946: that there was no such move or representation by the defendants 1, 7 and 8 in the middle of the year 1970 but instead the first plaintiff, defendants 1, 7 and 8 are in occupation of their own portions in their own right in pursuance of the divisions made in the year 1964: that only to circumvent the limitation and adverse possession, purposely the mention of the year 1970 is made: that the first plaintiff having agreed for the division and reallotment of door Nos.80 and 81 East Marret Street in 1964 is estopped from denying the division by metes and bounds. ;