K.M.JOSEPH, J. -
(1.)One R. Venkitusamy Naidu had two sons and five daughters. Lakshmiah Naidu and Rangaswami Naidu were the sons of R. Venkitusamy Naidu. Rangaswami Naidu was married to one R. Krishnammal. They had no issues. Lakshmiah Naidu had four sons, viz., Bakthavatsalam,Venkatapathy, Jagannathan and Ramaswamy. Two civil suits have generated these appeals by special leave before us. O.S. No. 649 of 1985 has been filed by those who claimed under Lakshmiah Naidu whereas the plaintiff in O.S. No. 89 of 1983 is one of legatees under a Will allegedly executed by Rangaswami Naidu. The plaint schedule properties in both the civil suits are the same.
(2.)The first suit, viz., O.S. No. 649 of 1985 (as the said suit was initially filed as O.S. No. 2063 of 1982 and it is re-numbered as O.S. No. 649 of 1985) was filed to declare the title of the plaintiffs to the suit property and for injunction against the defendants in the suit properties. The relief sought inter alia in O.S. No. 89 of 1983 are as follows:-
"(a) declaring the title of the plaintiff to an l/3rd share of the properties described in Schedule I, hereunder or l/4th share in the properties, described in Schedule II hereunder:
(b) directing the partition of the properties described in schedule I into three equal shares with reference to good and bad soil and granting separate possession to the plaintiff one such share or in the alternative directing a partition of the properties described in Schedule II into four equal shares with reference to good and bad soil and granting separate possession to the plaintiff one such share;
(c) appointing a commissioner to effect the division;
(d) directing defendants 4 to 11 to pay the plaintiff Rs .15,000.00 as past mesne profits.
(e) directing an enquiry into future mesne profits from the date of suit till delivery of possession and pass a decree for such amount as may be determined on enquiry;
xxx xxx xxx."
A CHEQUERED HISTORY; FIRST STAGE
(3.)This litigation has a chequered history. It all began way back in the year 1955. Proceedings under Section 145 of the Code of Criminal Procedure, 1898 (for short "CrPC") came to be initiated before the First Class Magistrate, Coimbatore as M.C. No. 1 of 1955 and M.C. No. 8 of 1955. Krishnammal, the widow of Rangaswami Naidu was A' Party. This was on the basis of the report of the Sub- Inspector of Police dated 04.07.1955 to the effect that there was a dispute regarding the possession of Survey No. 613/04 and 614/03 of Uppilipalayam Village. 'A' party no. 1 was R. Krishnammal, the widow of Rangaswami Naidu. 'A' party no. 2 was the nephew of 'A' party no. 1 and the executor of the Will. 'B' party no. 1 was the elder brother of Rangaswami Naidu, viz., Lakshmiah Naidu. 'B' party nos. 2 to 4 were the sons of Lakshmiah Naidu.
The case set up by 'A' party was in brief as follows:
There was a partition in the year 1932 between B party no. 1 and the late Rangaswami Naidu. Rangaswami Naidu also purchased lands in his own name. He took several lands on lease. A' party, in short, claimed that they were in possession of the land in question. It was, further, the case of 'A' party that Rangaswami Naidu who was under treatment of cancer but returned to Coimbatore after the first course of treatment was over and was staying in the Bungalow at Race Course had executed a will on 10.05.1955. He appointed 'A' party no. 2, viz., the nephew of his wife as executor. He had declared his divided status by way of a notice in newspaper called 'Nava India' dated 10.5.1955. Lakshmiah Naidu, the first among the B party and the brother of Rangaswami Naidu on seeing the notice responded to the same by communication dated 11.05.1955 to the effect that they were undivided and if Rangaswami wanted to get divided he had to intimate the other co-parceners. It is the further case of A party that Rangaswami Naidu had replied on 16.05.1955 pointing out that the stand of Lakshmiah Naidu in his response dated 11.5.1955 was incorrect. It is also alleged that it was acknowledged on 17.05.1955 by B party no. 1. After 10.05.1955 the health of Rangaswami Naidu took a turn for the worse. He left for Bombay on 20.05.1955. He was still conscious of his duties and was corresponding with others. Rangaswami Naidu passed away in the early hours on 01.06.1955. B party has, had on the other hand contended that Rangaswami Naidu and B party were members of the joint Hindu Family. B party no. 1, viz., Lakshmiah Naidu was sufficiently aged and could not attend to all items of work. Rangaswami Naidu and one of Lakshmiah Naidu' s sons were asked to look after the cultivation of fields. The case of partition in the year 1932 was denied. Rangaswami Naidu became unwell and unable to take food from January 1955 and was fed by tube. In short, the contention of B party was that Rangaswami Naidu continued to be an undivided member.