Mangalam alias Badrakali 3 and others vs Sudalaimuthu 4 and others

K.M. Natarajan, J.—These two appeals arise out of a common judgment rendered by the Subordinate Judge, Srivilliputtur, in O.S. Nos. 29 of 1981 and 23 of 1982. The plaintiffs in O.S. No. 23 of 1982 and the first defendant in O.S. No. 29 of 1981 are the appellants in both the appeals. O.S. No. 29 of 1981 was filed at the earliest point of time on 9-4-1979 as O.S. No. 119 of 1979 in the sub court, Ramnad for the relief of specific performance against the first defendant and his father, the second defendant, while the suit O.S.23 of 1982 was originally filed as O.S. No. 279 of 1979 in the sub-court, Ramnad, on 9-6-1979. Both the suits were transferred to the file of the sub court, Srivilliputtur, and they were tried jointly. O.S. No. 23 of 1982 is a suit filed by the children of the first defendant in O.S. No. 29 of 1981 for the relief of partition and separate possession and maintenance against their father, the first defendant, and the first defendant''s father, the second defendant, who was also a party in O.S. No. 29 of 1981. The plaintiff in O.S. No 29 of 1981 is the third defendant, and the subsequent purchaser was added as the fourth defendant during the pendency of the suit. For the sake of convenience, the array of parties in O.S. No. 23 of 1982 can be adopted in this judgment. The case of the plaintiff in O.S. No. 29 of 1981 who was the third defendant in O.S. No. 23 of 1982 filed against defendants 1 and 2 in both the suits, is that the suit property which is item 4 of the partition suit O.S. No. 23 of 1982 absolutely and exclusively belongs to the first defendant, and he and his father, the second defendant, agreed to sell the same to him for a valuable consideration of Rs. 59,000 and executed a sale agreement on 7-5-1978. The same was reduced into writing between the plaintiff and the first defendant who is the owner of the property. The second defendant acknowledged the same and attested the document. As per the sale agreement, the plaintiff paid a sum of Rs. 3,006 - on the date of the agreement and subsequently another sum of Rs. Rs. 1,500 was paid on 14-5-1978 after getting endorsement on the back of the suit agreement. His further case is that he was and is always ready and willing to perform his part of the contract. Further, he has undertaken the responsibility of discharging the othi for Rs. 21000 and pay the balance and obtain the necessary document. But the first defendant was evading the same. There upon he issued notices on 20-8-1978 and 16-9-1978 through his lawyer calling upon the first defendant to execute the sale deed. He has sent a reply to the effect that his father, the second defendant filed a suit against him for maintenance and as such, he is not prepared to execute the sale deed. Since the first defendant has arranged to sell the property to third party, the plaintiff has filed the suit for the relief of specific performance The second defendant is also added as a party as he has attested the document by acknowledging the sale agreement and he is estopped from denying the said agreement or the relief of specific performance and the agreement is binding upon him. Hence the suit.

The said suit was resisted by the first defendant and he filed a written statement at the first instance wherein he has admitted the execution of the sale agreement and he only contended that since his father, the second defendant, filed a suit claiming right over the property and claiming charge oven the property for maintenance, he is not in a position to execute the sale deed. He would further state that the plaintiff failed to pay the amount within the stipulated time and as such, he is not liable to execute the sale deed. In the subsequent two additional written statements, he would contend that the property in question is a joint family property in which his minor son Ponmani Sankar who is the second plaintiff in O.S. No. 23 of 1932 is entitled to an undivided half share and the agreement of sale executed by him will not bind his share. Further, since his son filed a suit in O.S. No. 279 of 1979 on the file of the sub court Ramnad at Madurai, for partition and separate possession which was dismissed for default and an application for restoration of the suit was pending, the plaintiff is not entitled to the relief of specific performance. He would also state that the plaintiff has committed breach of contract and as such he is not entitled to the relief.

In the written statement filed by the second defendant, he would state that the first defendant has title only to T.S. No. 1838 and he has gifted the sane to his wife under a gift deed dated 5-5-1952. But as regards T.S. No. 1836 it was purchased by him and his brother''s daughter jointly on 29-11-1962 long after the gift deed. The plaintiff has deliberately and mischievously included T.S. No. 1835 by giving the southern boundary as that of Kamakshi Asari instead of T.S. No. 1836. He had also stated that the sale agreement is false. He denied having attested the same with knowledge, especially with reference to T.S. No. 1826. He would further state that after taking delivery of possession of the property in O.S. No. 259 of 1978, he sold the property to the fourth defendant in O.S. No. 23 of 1982 and the suit is bad for non-joinder of the said fourth defendant. Hence, be prayed for dismissal of the suit.

On the pleadings, the trial court framed as many as 6 issues.

As regards the other suit O.S. No. 23 of 1982, which is the subject matter of A.S. No. 891 of 1982, the case of the plaintiffs is that the first plaintiff is the daughter and plaintiffs 2 and 3 are the sons of the first defendant. The second defendant and his brother Kutti alias Ponniah Pillai acquired properties jointly and severally in their names by their joint exertions and the suit properties were purchased among other items in the name of the second defendant. Later, Kutti alias Ponniah Pillai executed a registered will on 21-3-1947 relinquishing his rights in the suit properties in favour of defendants 1 and 2. Hence the suit properties are traceable as ancestral properties. On 4-5-1952 the second defendant surrendered his rights in the suit properties by executing a settlement deed in favour of the first defendant. Hence, the second plaintiff is entitled to half share while the first defendant is entitled to other half share. Under the gift deed, the wife of the second defendant was given only a life estate and the first defendant was given absolute rights after her death. The wife of the second defendant died in 1963. They would contend that the sale agreement in favour of the third defendant is for a low value and it is not binding on the second plaintiff. Since defendants 1 and 2 neglected the plaintiffs since 7-5-1978 when they had fraudulently entered into a contract of sale with the third defendant in respect of the schedule property, the suit has been filed for partition of half share of the second plaintiff and also for maintenance of Rs. 225 per month and also for the marriage expenses of plaintiffs 1 and 3.

The said suit was resisted by the defendants and in the written statement filed by the first defendant, he would contend that the allegation that the second plaintiff is entitled to half share in the suit properties is not correct. However, he admitted that it is true that he made arrangements to sell the property, that is, item No 4 of the properties, in favour of the third defendant, not in the capacity as guardian of the minors. He is prepared to keep the minors in his custody and provide for their marriage expenses. He would further state that he has no objection for a decree being passed for partition in favour of the plaintiffs after working out the share they are entitled to, in law. In the written statement filed by the second defendant, be would contend that he became the absolute owner of the property from 21-3-1947 by means of the registered will executed by his father one Kutty alias Ponniah Pillai. He would further contend that the settlement deed dated 5-5-1952 is a nominal gift deed, and after the death of his wife in 1963, the first defendant forcibly entered into the land and house properties and obtained change of registry in his name He would also state that the first defendant failed to maintain him and hence he is struggling hard for his livelihood. He contended that the suit is a conclusive one between the plaintiff and the first defendant and prayed for dismissal of the suit. In the additional written statement filed after the amendment of the plaint in respect of the southern boundary recitals and measurement of item 4, he would state that the disputed item does not form part of item 4 and he is an unnecessary party to the suit. He has stated that he has sold the disputed item to the fourth defendant.

In the written statement filed by the third defendant, who is the plaintiff in O.S. No. 29 of 1981, he would state that the suit is not a bona fide action and that it is a speculative suit filed at the instance of the first defendant. It is filed as a counterblast to the suit filed against defendants 1 and 2 for specific performance of the sale agreement executed by the first defendant and attested by the second defendant in his favour. The plaintiffs are under the protection and guardianship of their parents and they are residing in the same house. The suit is not properly instituted by proper guardian and the one instituted by the maternal uncle as the next friend of the minors is not maintainable. Though they are four items in the suit schedule, this defendant is interested only in item 4. The plaintiffs are only name lenders. Defendants 1 and 2 are the real persons behind the back of the plaintiffs. The second defendant at the instance of the first defendant filed a suit O.S. No. 259 of 1978, without impleading this defendant, claiming maintenance at the rate of Rs. 1200 and the same is also a collusive suit. Now the second suit is filed in the name of the plaintiffs regarding the same property. The registered gift deed dated 4-5-1952 executed by the second defendant is true, valid and acted upon. The second defendant is not entitled to claim any share in the partition of the properties. Further, defendants 1 and 2 cannot question the truth and validity of the sale agreement in favour of this defendant. The sale agreement is for legal necessity and family benefit and for discharging the antecedent debts. Item 4 of the suit properties is in the possession of the othidar, namely, Ramaswami Asari. He had agreed to receive the othi amount of Rs. 21,000 The othidar Ramaswami is a necessary and proper party to the suit. It is further stated that the first defendant as the father-manager of the family has brought about a partition among the members of the family by virtue of the registered partition deed dated 12-6-1978 and the B-Schedule property was allowed to the second plaintiff. It is significant that item 4 was not allotted to any minor sharer and it is not the subject-matter of the partition. From the recitals in the partition deed, it is established that the sale agreement is a bona fide transaction by the first defendant. The partition was given effect to and the mother in pursuance of the partition deed, executed a registered mortgage deeds dated 29-10-1977 and 29-10-1979 for Rs. 7,000 each and raised loans for the maintenance of the minors and family expenses. The plaintiffs have not challenged either the partition or the mortgage deeds. Unless and until the partition deed is set aside; the suit is not maintainable. The plaintiffs are not entitled to the reliefs of partition and maintenance. In any event there is no locus standi to question the sale agreement in favour of the third defendant. Hence he prayed for dismissal of the suit.

The fourth defendant who is the subsequent purchaser would state that he purchased the property bearing T.S. No. 1836 from the second defendant on 24-6-1982 for valid consideration. The decision in O.S. No. 259 of 1978 with regard to T.S. No. 1836 which is purchased by him will operate as res judicata. Hence he prayed for dismissal of the suit.

On the pleadings in the above suit, the trial court framed as many as 13 issues.

On the side of the plaintiffs, the next friend of the plaintiffs was examined as P.W.1 and Ex-A1 sale deed executed in favour of the fourth defendant and Ex.A2 copy of the settlement deed dated 5-5-1952 executed by the second defendant in favour of his wife and the first defendant were marked. On the side of the defendants, the first defendant was examined as D.W.1 and one Thangam who has produced the will Ex.B2 and who is the maternal uncle of the first defendant was examined as D.W.2 and the third defendant who is the plaintiff in the other suit was examined as D.W.3 and Exs.B1 to B30 were marked.

The trial judge for the reasons assigned in the judgment decreed the suit O.S. No. 29 of 1981 as prayed for with costs and directed the first defendant to execute the sale deed as per Ex. B8 agreement of sale and in view of the joint endorsement made by the plaintiff and the second defendant, the second defendant was exonerated from the said suit, while the suit filed by the plaintiffs in O.S. No. 23 of 1982 was dismissed with costs of defendants 3 and 4. Aggrieved by the same, these two appeals were filed.

The learned senior counsel for the appellants in A.S No. 891 of 1982, Mr. T.R. Mani, submitted that the suit properties including item 4 are the joint family properties. He would submit that Ex.B1 gift settlement deed refers to Ex.B2 will dated 21-3-1907 executed by Kutti alias Ponniah Pillai as the source of title. Ex.B2 shows that it was purchased from the joint family nucleus and accretions in his name. Ex.B21 is the othi deed executed by the first defendant for himself and on behalf of the second plaintiff and as such, the properties are treated as joint family properties. He would also submit that Ex.B8 agreement of sale in favour of the third defendant refers to Ex.B1 settlement which itself refers to Ex.B2 will. As such, the finding of the lower court that the suit properties are the separate properties of the first defendant is not sustainable. He would further submit that the third defendant did not make any enquiry and peruse any document and as such he is not a bona-fide purchaser and he is not entitled to the relief of specific performance. The learned counsel would also submit that the partition under Ex.B4 is not valid and binding upon the plaintiffs and they can ignore the same. Similarly, they can ignore the subsequent mortgage Ex.B17 and Ex.B18 executed by their mother in pursuance of Ex.B4, partition deed, as the allotment of shire is not equal as the wife of the first defendant was not allotted any share in the properties. The learned counsel appearing for the appellant in A.S. No. 942 of 1982 adopted the arguments of Mr. T.R. Mani, senior counsel for appellants in A.S. No. 891 of 1982. In addition he would state that though the first defendant filed an appeal against the judgment and decree in O.S No. 259 of 1978 which was confirmed in A.S. No. 126 of 1981, the first defendant died on 19-9-1989 during the pendency of the appeal in S.A. No. 845 of 1982, and the appellants in A.S. No. 891 of 1982 are the only legal representatives and they have not pressed the said second appeal. Accordingly the said appeal was dismissed as not pressed.

The learned counsel for the third respondent (third defendant), Mr. S.V. Jayaraman, submitted that the findings of the trial court on all issues are unassailable and supported by acceptable evidence and are based on the very admission of the first defendant and P.W.1 (next friend of the plaintiffs) and also the documents in which the first defendant is a party and no interference is called for. He would also submit that the suit filed by the plaintiffs in O.S. No. 23 of 1982 is liable to be dismissed on the ground that the minors were not properly represented. It is submitted that when the natural guardian and father is available, the maternal uncle has no locus standi to file the suit on behalf of the minors. Further, the finding of the lower court is that the suit was instigated by the father who was attending every hearing and the maternal uncle guardian is not attending the court and the said finding is not challenged in the appeal. These appeals are liable to be dismissed on the sole ground upholding the preliminary objection.

The points that arise for determination in these appeals are:

Whether the suit filed by the plaintiffs in O.S. No. 23 of 1982 is liable to be dismissed on the ground of maintainability for the reasons stated by the learned counsel for the respondent/third defendant and consequently the appeals are liable to be dismissed.

Whether the finding of the trial Court that the suit properties including item 4 of the suit properties are not the joint family properties but separate properties of the first defendant is not sustainable for the reasons stated by the counsel for the appellants.

Whether the third defendant is not entitled to the relief of specific performance on the basis of Ex.B8-agreement for the reasons stated by the learned counsel for the appellants?

Whether the partition deed Ex.B4 and also the mortgages Exs.B17 and B18 are not binding on the plaintiffs and whether the plaintiffs are not entitled to the reliefs without setting aside the partition.

As regards the first point which relates to the maintainability of the appeals, raised by the learned counsel for the respondent, Mr. S.V. Jayaraman, it is submitted by him that in para 13 of the amended plaint it is averred that defendants 1 and 2 have neglected the minors since 7-5-1978 when they had fraudulently entered into a contract to sell one of the schedule properties to the third defendant and since then there is deliberate neglect of the minors who are now living with the next friend and on and from 24-12-1978 they had been completely neglected by defendants 1 and 2 when the third defendant has started enforcing fraudulent sale agreement. In the written statement tiled by the first defendant, he would state that he is prepared to keep the minors in his custody and provide for their marriage expenses. The second defendant in his written statement has alleged that the suit is a collusive one as between the plaintiffs and the first defendant. The third defendant in his written statement has stated that the suit is not a bona fide action but is a speculative suit filed at the instance of defendants 1 and 2 as a counterblast for the suit filed by him for specific performance. Further, it is stated that the suit filed by the maternal uncle as the next friend of the minors, when the plaintiffs have their natural guardian and parents, namely, the first defendant and his wife Shanmughavadivu Ammal is not maintainable. The learned counsel for the respondent/third defendant drew the attention of this court to the finding in para 19 of the judgment of the lower court, and the finding is that the suit was instigated by the father who was attending every hearing and the maternal uncle is not attending the court. It is submitted by the learned counsel that the said finding is not challenged. The learned counsel relied on the judgment in Narayani Amma Vs. Bhaskaran Pillai and Others, , wherein it was held: No person has a right to act as a next friend of a minor, and institute a suit for the minor, by reason of the mere fact that he is not of unsound mind he is a major, and he has no adverse interest to the minor. R.4(1) contains only an enabling provision. Unsound mind, non attaining of majority and adverse interest are disqualifications, which prevent a person from acting as next friend of a minor. Absence of these disqualifications does not give him the right to act; but it only qualifies him to act. Whether a person can be permitted to act as next friend of a minor is a matter to be decided by the court; and the decision must depend upon the sole question whether it is a bonafide action instituted for the benefit of the minor.... It would be an abuse of the statutory protection, if a person who has no interest in the minor and who is not concerned with his benefit, is permitted to institute suits in the name of the minor for achieving that person''s own object, or serving the interest of others... A minor who is a party to a suit is considered to be under the protection of the court; and it is consequently the duty of the court to watch his interests vigilantly, and to see that he is represented by a fit and proper person.

In the above quoted case, on facts, it was found that the next friend is not concerned with the interest of the minor and the litigation was instituted by the next friend at the instance of the 10th defendant and really prosecuted by him in total disregard of the interest of the minors and with the sole object of wreaking his vengeance against the (sic) members of the plaintiffs who purchased the property and if possible to establish his false claim of lease (sic) to the property. It was further held that it would be an abuse of the process of court, if the next friend and the 10th defendant are allowed to maintain the action in the name of the minor plaintiffs and consequently it was held that the suit has been instituted mala fide and that it is not for the benefit of the minors and that it is liable to be dismissed on the sole ground. The learned counsel submitted that in view of the funding of the trial court, applying the ratio in the said decision to the facts of this case, the suit is to be dismissed and consequently the appeal also is liable to be dismissed.

On the other hand, the learned senior counsel for the appellants, Mr. T.R. Mani, submitted that it is alleged in the plaint that defendants 1 and 2 entered into the sale agreement with the third defendant with reference to item 4 of the suit properties for a very low value and that in that venture, the mother of the plaintiffs is also supporting them and hence she is unfit to be the guardian of the minors. It is also submitted that in the instant case, an application was tiled by the maternal uncle of the plaintiffs to act as their next friend and represent the minor and that has been allowed. It was also submitted that the only objection raised in the written statement was that the maternal uncle cannot represent the minors when their natural guardian is alive and the plaintiffs are under their protection and guardianship. It was further submitted that the trial court did not hold that the suit is barred by reason of the fact that it was instituted by the maternal uncle as the next friend of the minors. He would submit that the plaintiffs who are minors are impeaching the alienations of the father, namely, suit agreement of sale under Ex.B8 and also the partition deed Ex.B4 to which the mother and father are parties. It is not correct to allege that the observation of the trial court that the father has instigated the maternal uncle of the plaintiffs and that he alone is attending court, has not been challenged. When all the findings have been challenged and the appeal is filed, there is no necessity to challenge each and every finding. He would state that when the action of them oral parents was challenged, they cannot represent the minors. Anybody who is disqualified and whose interest is adverse to the minors cannot represent the minors, and there is distinction between a suit filed on behalf of the minor and a suit filed against the minor. In the cast of a suit filed on behalf of the minor, he can be represented by next friend. But in the case where the defendant is a minor and the suit is filed against him; a guardian has to be appointed. According to the learned counsel, the decision in Sumathi Amma case AIR 1969 Kerala 214, referred to above, is not at all applicable to the facts of this case. On the other had, the learned counsel drew the attention of this court to the decisions in Parameswaram Pillai Velayudham Pillai represented by next friend Neelamma Pillai Lakshmi Pillai Vs. Parameswaram Pillai Narayana Pillai, alias Kesava Pillai, , K.K. Goundar v. A. Goundar AIR 1970 Mad 179., and Nagappa Chettiar v. Subramaniam 58. L.W. 66=1945-I-M.L.J. 52. I find much force in the contention of the learned counsel for the appellants. In the instant case, .the suit was instituted by the minors challenging the alienation by their parents both under the suit agreement Ex.B8 and also the partition Ex.B4 and the subsequent mortgages Exs.B17 and B.18 and they pray for partition and maintenance. As such, they cannot represent the minors in the action. Then, only the nearest relations who are interested in the minors and whose interest is not adverse to the minors can represent and act as next friend. In the instant case, the maternal uncle as the next friend filed necessary application and obtained leave to act as next friend and thereafter he has prosecuted the suit. There is absolutely nothing to show that his interest is adverse and he has acted against the interest of the minors. Whether the plaintiff has got a case on merit or not is a matter to be decided on the evidence adduced in each case. It is usual in all cases where the minors challenge an alienation by their parents, the allegation of collusion will be present. But that cannot be a ground for holding that the suit itself is not maintainable. In Parameswaram v. Parmeswaram 58 L.W. 266=1945-I-M.L.J. 452, it was held :

Any person who is of sound mind and has attained majority may act as next friend of a minor or a lunatic for the suit, provided that the interest of that person is not adverse to that of the minor or the lunatic. The proviso to O.32, R.3(1) (Madras Amendment) read with R.15 in the case of lunatics has reference to adverseness of interest regarding the subject-matter. Where it is nobody''s case that the next friend would be interested in seeing that the case is dismissed and even according to the allegation of the defendant, which is that the next friend claims to be the legally wedded wife of the plaintiff in order to knock away the properties, she would be only be too anxious to obtain a decree on behalf of the lunatic, it cannot be said that the interests of the next friend are in any way adverse to the lunatic plaintiff.

In Kumara Kangoya Goundar v. Arumugha Goundar 53 L.W. 322=A.I.R. 1970 Mad 179, it has been held :

There is nothing in O.32 making it mandatory on the court to appoint the natural guardian where he expressed his willingness to be appointed as guardian ad litem and not to exercise its discretion if it so considers and appoint another person as guardian ad litem for the suit.

The rules under O.32, C.P.C. clearly contemplate the appointment of a person other than the natural guardian also as guardian ad litem. O.32, R.3(7) (Mad.) is very clear on this point. It is clear from O.32, R.3(7) (Mad.) that court cannot make any order on the application for appointment of a guardian ad litem except upon notice to the guardian appointed and declared by court and where there is no such guardian, upon notice to the father or other natural guardian of minor. No doubt, the father would have a preferential right when there is no guardian appointed or declared by competent authority. Objections have to be heard which may be urged on behalf of any person served with notice under the sub-R(7) of R.3 (Mad) of O.32, C.P.C. and reasons have to be given if a preferential claim is overruled for another. But it does not follow, that every irregularity in the appointment without more will vitiate the appointment. AIR 1984 Cal. 474, Ret. on.; AIR 1946 Cal. 272, Distinguished.

On facts, there is absolutely nothing to show that the next friend acted against the interest of the minors. The mere fact that the minors� father was attending every hearing and that the next friend was unable to give the name of the advocate who was engaged in the petition to implead new parties and to amend the pleadings cannot be a ground for holding that the suit instituted by him as the next friend of the minors is not maintainable. Hence, this point is answered in favour of the appellants and as against the respondents by holding that the suit instituted by the next friend on behalf of the minors is maintainable.

Point 2 : The case of the appellants is that the suit properties including item 4 are the joint family properties, relying on Ex.B2 and A2, Ex.B2 is the registered will dated 21-3-1947 executed by the elder brother of the second defendant by name Ponniah Pillai, in favour of Pitchai Ammal.

[The discussion of facts is omitted--Ed.]

xx xx xx xx

...The admissions of P.W.1, next friend of the minors, as well as the first defendant will clearly establish the case of the respondents that they are the separate properties of the first defendant and not his ancestral properties. The learned trial judge relied on the decision of the Supreme Court in John Thiru v. Returning Officer 53 L.W. 322=A.I.R. 1970 Mad 179 for relying on the admission made by P.W.1 and D.W.1 with regard to the nature of the properties.

On the basis of the claim made by the plaintiffs and in view of admissions of P.W.1 and D.W.1 we have no hesitation in holding that the finding of the lower court that the suit property is the separate property of the first defendant and not the joint family property is perfectly legal and correct and as such we answer the point in favour of the respondent and as against the appellant.

XX XX XX XX

.....It is to be noted that the second defendant who was entitled to the property by virtue of the will executed the settlement deed Ex.B1 giving life interest to his wife and after his lifetime, absolute title to the first defendant and that it has been clearly set out in Ex.B8 and we do not find anything to bold that Ex.B8 contains false recitals. The mere fact that the second defendant sold the property to the fourth defendant after attesting Ex.B8 agreement will not affect the case of the third defendant; but the sale in favour of the fourth defendant alone is hit by lis pendens. The mere fact that the second defendant was originally added and subsequently exonerated will not in any way affect the case of the third defendant in the suit filed for specific performance. Since we have held that there is no false recital in Ex B8, the decisions relied on by the learned counsel for the appellants in M.V. Raghavaiah v. M.C. Veeraiah 53 L.W. 322=A.I.R. 1970 Mad 179., Rathinasabapathi Pillai, V.V. v. T.R. Sriramala Chettiar 90 L.W. 107 (S.C.) (S.N.)=A.I.R. 197 S.C. 172, and M. Veera Raghaviah Vs. M. China Veeriah and Another, are not at all helpful to the case of the appellants. For all these reasons, we are of the view that the first defendant is bound to execute a sale deed as per Ex.B8 in favour of the third defendant and the suit filed by him is to be decreed in favour of the third defendant and this point is answered accordingly in favour of the third defendant that is, the plaintiff in O.S. No. 29 of 1981.

Point 4: Since we have held under point No. 2 that the property is the separate property of the first defendant, it is not open to the plaintiff to challenge the said partition deed. Though it is now contended that there is inequality in the allotment of shares, such contention was not put forward in the pleadings. ... For the foregoing reasons, we have no hesitation in holding that Ex.B4 partition and Exs.B17 and B18 mortgages are valid and binding on the plaintiffs and they have no right to challenge the same. This point is answered accordingly. In view of the findings on points 1 to 4, we are of the view that both the appeals are liable to be dismissed.

In the result, both the appeal fail and stand dismissed with costs of the third respondent, namely, third respondent in A.S. No. 891 of 1982 and the first respondent in A.S. No. 942 of 1982.