The Judgment was delivered by :

This second appeal is preferred from the judgment and decree of the learned District Judge, North Arcot at Vellore dated 10-1-1990 made in A.S. No. 135/89 reversing the judgment and decree of the learned District Munsiff, Gudiyatham dated 20-3-1989 made in O.S. No. 552/82.

2. The first respondent herein filed a suit for delivery of the plaintiff's 1/3rd share in the schedule mentioned jewels in specie or in the alternative pay him a sum of Rs.10, 859.70 being the value thereof with the following averments. The plaintiff first defendant and one Natesa Mudaliar were brothers. The plaintiff's father died in the year 1965 and mother Sivagami Ammal died in or about 1976. Gold jewels of 22 carat more fully described in the schedule to the plaint belonged to Sivagami Ammal and were being worn by her. Sivagami Ammal died at No. 120, Road Street, Thiruvalam village. At the time of burrial, the first defendant removed all the schedule mentioned jewels from the body and kept them with him. Sivagami Ammal desired that the jewels possessed by her should be taken equally by her sons. During the end of January 1981, the third defendant approached the plaintiff representing that he was getting married and so required funds. The plaintiff asked him to approach the first defendant and take his share in the jewels and utilise the same. Thereupon the third defendant went to the first defendant and returned stating that the first defendant had told him that the jewels were with the plaintiff. The plaintiff advised the third defendant to approach the first defendant with elderly relations and ask for the jewels since the jewels were not with the plaintiff as alleged by the first defendant. The plaintiff issued a lawyer's notice to the first defendant demanding his share in the schedule mentioned jewels. The first defendant sent a reply through his counsel making false allegations. A copy of the notice and reply are filed with the plaint. Subsequent to the receipt of the reply notice, the plaintiff learnt that the defendants 2 and 3 had approached the first defendant on 5-2-1981 along with one Venu son of Rathnam of Kodaikal and Munirathnam, son of Munisami Mudali of Ponnai and asked for their 1/3rd share of their grandmother's jewels and that the first defendant admitted the existence of the schedule mentioned jewels with him in their presence and the first defendant fetched goldsmith Nataraja Achari from the bazaar and got the schedule mentioned jewels weighed by the goldsmith in their presence and the jewels weighed 251/2 sovereigns. However, the first defendant failed to deliver the defendants 2 and 3 their 1/3rd share in the jewels. The plaintiff after becoming aware of these facts sent a rejoinder to the first defendant's counsel on 5-7-1981 and claimed 1/3rd share in the jewels. The plaintiff and the first defendant were each entitled to 1/3rd share in the jewels and the defendants 2 and 3 were together entitled to the remaining 1/3rd share. The first defendant had failed to divide the jewels and deliver the plaintiff his 1/3rd share in spite of the lawyer's notice. Hence the plaintiff has filed the suit for recovery of his share in the jewels.

3. The first defendant contested the suit by alleging that the plaintiff is not entitled to the relief either in law or on facts; that it is true that the plaintiff was the younger brother of the defendant; that Natesa Mudaliar was the youngest brother; that he was the father of the defendants 2 and 3; that the plaintiff's father Govindappa Mudaliar died in the year 1965 and his wife Sivagami Ammal, the mother of the plaintiff died in the year 1968; that Sivagami Ammal died in or about 1976 is not correct; that the jewels described in the schedule to the plaint belonged to sivagami Ammal and they were owned by her, which were all false; that Sivagami Ammal did not possess the alleged jewels described in the plaint schedule; that during her last days she was wear