Gupta, J. - (1.) These are two appeals which arise out of a suit for partition filed in the court of the Subordinate Judge of Dindigul, Tamil Nadu on 17th September, 1958. Plaintiffs are the appellants in C. A. No. 2261 of 1968; in the other appeal C. A. 2308 of 1968, the appellants are defendants Nos. 2, 3, 4 and 5.
(2.) Plaintiffs' case as made in the plaint is as follows:The two plaintiffs and the five defendants constitute a joint Hindu family. The plaintiffs are the sons of the first defendant, Ayyalu Naidu. Defendants 1 and 2 are the sons of one Alagar Naicker. The third defendant is second defendant's son. The fourth defendant is third defendant's wife and defendant No. 5 is their daughter. In 1941 Alagar Naicker was allotted the properties mentioned in Schedule A of the plaint on oral partition between himself and his agnates. Alagar Naicker died in 1942 and A Schedule properties devolved upon the plaintiffs and defendants 1 to 3 by survivorship. The second defendant being the eldest member of the family after Alagar Naicker's death used to manage the joint family properties. Alagar Naicker had a paternal uncle whose name was Kochadai Naicker. Kochadai Naicker had no male issue. According to the plaintiffs the second defendant in whom he had reposed great confidence used to manage all his affairs. The plaintiffs allege that in 1946 when Kochadai Naicker had become old and infirm, defendants 1 and 2 "had come to an understanding to divide the properties of Kochadai Naicker between themselves depriving his widow and daughters. Kochadai Naicker who married twice had four daughters by his first wife and two daughters by the second. In pursuance of that plot the second defendant on December 27, 1944 had a document executed by Kochadai Naicker which was described as a deed of adoption (Ext. B-7). In this document there is a recital that Kochadai Naicker had taken the first defendant in adoption about 30 years ago. The plaintiffs assert that as a matter of fact Kochadai Naicker had not taken the first defendant in adoption at any time. According to the plaintiffs, defendants 1 and 2 acting in league brought into existence a number of documents after 1944 in which the first defendant was described as son of Kochadai Naicker; in none of the documents relating to Kochadai Naicker's properties executed prior to 1944 the first defendant had been described as such. The plaintiffs' version is that in the matter of bringing into existence the aforesaid documents after 1944, the first defendant, who was their father, was only a toll in the hands of the second defendant who was his elder brother and manager of their joint family. Kochadai Naicker died on February 16, 1946 leaving behind him two wives Kamakshi and Alagammal, and six daughters. Kamakshi died in 1953; two of her daughters died before the suit was instituted.
(3.) According to the plaintiffs some time in 1947 a tentative arrangement was agreed upon by the first and the second defendant for convenient enjoyment of the ancestral properties left by Alger Naicker under which the first defendant had possession of items 29, 32, 33, 35 and 40 and half of items 25, 28, 30, 31, 37, 38 and 39 of properties mentioned in Schedule A to the plaint, while the second defendant continued to be in possession and enjoyment of the other properties described in that Schedule. In 1956 the two brother, defendants 1 and 2, appear to have fallen out when the first defendant while asserting his held she in the properties of their father Alagar Naicker refused to part with any of Kochadai Naicker's properties of which he was in possession in favour of the second defendant. The second defendant resented what he though was ungrateful conduct on the part of the first defendant after what the second defendant had done for securing Kochadai's properties for him.;