- (1.) This appeal, which has come before us on special leave, is directed against a judgment and decree of a Division Bench of the Madras High Court, dated 13-12-1949, affirming, with slight modification, those of the Subordinate Judge, Coimbatore, passed in O. S. 138 of 1945.
(2.) The suit was commenced by the plaintiff, who is respondent 1 in this appeal for specific allotment, on partition, of his one-third share in the properties described in the plaint, on the allegation that they were the joint properties of a family consisting of himself, his father, defendant 1, and his brother, defendant 2 and that he was entitled in law to one-third share in the same. It appears that the plaintiff and defendant 2, who are two brothers, are both sons of defendant 1 by his first wife who predeceased her husband. After the death of plaintiff's mother, the defendant 1 married again and his second wife is defendant 3 in the suit. The allegations in the plaint, in substance, are that after the step-mother came into the house. the relation between the father and his sons became strained and as the father began to assert an exclusive title to the joint family property, denying any rights of his sons thereto, the present suit had to be brought. The properties in respect of which the plaintiff claims partition are described in Sch. B to the plaint. They consist of four items of agricultural land measuring a little over 5 acres in the aggregate, one residential house in the town of Erode and certain jewellery, furniture and brass utensils. In addition to these, it is averred in para. 11 of the plaint that there is a sum of about Rs. 15,000/- deposited in the name of the first defendant in the Erode Urban Bank Limited; that money also belongs to the joint family and the plaintiff is entitled to his share therein.
(3.) Defendant 1 in his written statement traversed all these allegations of the plaintiff and denied that there was any joint family property to which the plaintiff could lay a claim. His case was that items 1 and 2 of Sch. B lands as well as the house property were the self-acquired properties of his father and he got them under a will executed by the latter as early as in the year 1912. The other items of immovable property as well as the cash, furniture and utensils were his own acquisitions in which the sons had no interest whatsoever. As regards the jewels mentioned in the plaint, it was said that only a few of them existed and they belonged exclusively to his wife, defendant 3.;