K SUBBAROYA CHETTY Vs. NAGAPPA CHETTI

JUDGEMENT

(1.) This is a suit for partition. The plaintiff is the elder brother of the 1 defendant who was adjudicated an insolvent and whose estate the 2nd defendant the Official Assignee represents. The suit is withdrawn against the 4 defendant. The other defendants are alienees of various items of immovable properties, claiming on the strength of alienations made by or on behalf of the 1 defendant. The defendants 9, 10 and 11 were on their application removed from the record, the plaintiff not objecting to that course.

(2.) The plaintiff and the 1 defendant are the sons of one Ratnavelu Chetti who died on the 29 of December, 1913. His father is Ramaswami Chetti who died in 1895. A deed of release (also termed partition deed) was executed on the 30 of August, 1911 by the plaintiff. The joint family properties were valued at Rs. 12,900 and for the plaintiff's one-third share amounting to Rs. 4,300, he was given houses Nos. 15 and 16, Ramanan Street, Madras. On the same date, the plaintiff was made to execute a deed of gift conveying these properties to his wife who was a minor.. The plaintiff alleges that this partition deed was a sham and make believe and was not intended to take effect. At the time this release deed was executed the plaintiff had just attained majority. As I have said, Ratnavelu died on 29 December, 1913, that is about two years after the execution of this deed. Nagappa his other son was then a minor. He attained majority on 25 July, 1918. An agreement was then executed on the 9th December, 1918 between the two brothers who agreed notwithstanding the release deed to treat the whole property as joint family property. In pursuance of this agreement, a trust deed was executed on the 22nd of December, 1918 in favour of their maternal uncle one Singaram Chetti (now dead) who was requested to take possession of the properties and sell such of them as were necessary, pay off the debts and divide the residue in accordance with the agreement I have referred to, in equal shares between the two brothers, the plaintiff and the 1 defendant. If these two documents of the 9 and 27 December 1918 are valid and genuine, the plaintiff's case is unanswerable, but it is urged for the 1 defendant that he did not execute them of his own free will and should therefore be disregarded.

(3.) From what I have said, it will appear that while the plaintiff attacks the deed of 30th August, 1911 as a sham and a pretence, the 1 defendant impeaches the agreement and the trust deed of 1918 as inoperative and of no force. To start with, we find that the release deed of 1911 was by mutual consent treated by the later documents of 1918 as a transaction not binding on the plaintiff.