K. ARJUNAN Vs. KUPPURAJ AND OTHERS

JUDGEMENT

(1.) The Second defendant it the appellant. He is an alience from the first defendant. He is also the father -in -law of the third defendant. The plaintiff (first respondent here) filed the suit for partition of his one -fourth share in the suit house, which consists of 5 anganams. There was one Muthayya Udayar who was the original owner of the house. He had two sons by name Ramaswami and Marudachalam. Ramaswami died long ago and his son Mariappan, first defendant, and Marudachalam entered into a partition on 10th May, 1939 under which each of them got a half share in the property. The half share of the property allotted to Marudachalam was leased in favour of the first defendant under Ex. A -2, dated 10th May, 1939, the same date as that of the partition. On 9th April, 1969, the first defendant sold not only his half share in the property but also the other half share of Marudachalam for a consideration of Rs. 7.200/ - in favour of the second defendant. The plaintiff and the third defendant are sons of Marudachalam. The case of the plaintiff was that the first defendant could not have conveyed more than his share in the suit property. Therefore, he claimed that he was entitled to a one -fourth share in the suit property, being a half in the half share of Marudachalam. The first defendant did not contest the suit by filing any written statement. The second defendant claimed that Marudachalam had during his lifetime sold his half share in the suit property to the first defendant for a sum of Rs. 75/ - that the first defendant has thus become an absolute owner of the whole property and that therefore the first defendant was entitled to execute a conveyance validly in favour of the second defendant. There was also a plea that the suit was barred by limitation.

(2.) The third defendant, who is the brother of the plaintiff and who, as already stated, is the son -in -law of the second defendant, remained ex parte.

(3.) The learned District Munsif found that the lease deed in favour of the first defendant by Marudachalam under Ex. A -2 could not be admitted in evidence, because it was unregistered. He, however, held that it was admissible for proving the nature of possession of the first defendant. He was not inclined to accept the case of oral sale in favour of first defendant, set up by the second defendant. He did not also accept the plea that the suit was barred by limitation. He, therefore, granted a preliminary decree for partition and separate possession of the plaintiff's one -fourth share.