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Pothari Illath Madhavan Nair Vs. Chalikadavath Pakkissan Thotiyil Abdur Rahiman and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1922Mad404; 77Ind.Cas.917
AppellantPothari Illath Madhavan Nair
RespondentChalikadavath Pakkissan Thotiyil Abdur Rahiman and ors.
Cases ReferredSomasundara Mudali v. Kulandaivelu Pillai
Excerpt:
civil procedure code (act v of 1908), section 4 - res judicata between co-defendants--contest, absence of, effect of--partition--minor not properly represented--acquiescence after attaining majority--heirs of minor, whether can object. - - assuming that the partition was invalid as atta bi was not properly represented in the partition, the fact that all the adult male members treated the partition as valid and enjoyed or disposed of their shared under the deed and the fact that atta bi after she attained majority was in possession of her share would prevent her heirs from disputing the partition or claiming any interest in the shares which fell to the other members and were enjoyed by them absolutely and adversely for over twelve years......for the second defendant to raise the question of the validity of the partition.2. as regards the deed of partition in 1896 it is clear from the facts set out by the district munsif in paragraph 8 of his judgment that atta bi and the other parties acted on the deed. attn bi took under the will of her brother who gave her the share he got on partition. assuming that the partition was invalid as atta bi was not properly represented in the partition, the fact that all the adult male members treated the partition as valid and enjoyed or disposed of their shared under the deed and the fact that atta bi after she attained majority was in possession of her share would prevent her heirs from disputing the partition or claiming any interest in the shares which fell to the other members and were.....
Judgment:

1. We are of opinion that the decision in Original Suit No. 398 of 1903 does not render the question of the validity o the deed of partition res judicata. There was no contest between the defendants. Somasundara Mudali v. Kulandaivelu Pillai 28 M.Z 457 supports the contentions of the appellant The suit being to eject the defendants or the ground, of an alleged trespass, it was not necessary for the second defendant to raise the question of the validity of the partition.

2. As regards the deed of partition in 1896 it is clear from the facts set out by the District Munsif in paragraph 8 of his judgment that Atta Bi and the other parties acted on the deed. Attn Bi took under the Will of her brother who gave her the share he got on partition. Assuming that the partition was invalid as Atta Bi was not properly represented in the partition, the fact that all the adult male members treated the partition as valid and enjoyed or disposed of their shared under the deed and the fact that Atta Bi after she attained majority was in possession of her share would prevent her heirs from disputing the partition or claiming any interest in the shares which fell to the other members and were enjoyed by them absolutely and adversely for over twelve years.

3. We set aside the decision of the District Judge and restore that of the District Munsif with costs throughout.


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