View expressed by minority judgment also law declared by Supreme Court.

Second Appeal No.1374 of 1982 arises from O.S. No.16 of 1981, on the file of the Subordinate Judge’s Court, Periakulam, and Second Appeal No.1375 of 1982 arises from O.S. No.17 of 1981, of the same court.

2. The materiel averments which are necessary for the proper disposal of the second appeals are as follows:

The property originally belonged to one Perumal Chettiar under a registered sale deed dated 9. 1940. He purchased it from Gandhimathi Chettiar. Plaintiff in O.S. No. 17 of 1981, which is the subject-matter of Second Appeal No.1375 of 1982, is the son of the above named Perumal Chettiar. Plaintiff, in his first wife has a son by name Bhagavathi Kalyani Chettiar, and through the second wife he has no issues. After the death of Perumal Chettiar, the suit property was inherited along with other properties as joint family, of which the plaintiff was the manager. Plaintiff is in possession and enjoyment of the plaint property also as manager. It is said that his son Bhavathi Kalyani Chettiar, after attaining majority, fell into evil company and was leading a wayward life, and some persons attempted to take sale deeds from him. Hence the plaintiff published a general notice in ‘Dhina Thanthi newspaper on 17. 1962, informing the public about the wayward life of his son, and warning them against taking any documents from him.

3. Thereafter, there was partition on 2. 1964 and in the said partition, the suit property was allotted to the plaintiff. The suit filed by him as O.S. No.184 of 1968 is one for declaration of title and consequential injunction. The defendant there along with others seem to have purchased the plaint property from the plaintiff’ s son Bhagavathi Kalyani Chettiar, as per document dated 29. 1963. According to the plaintiff, the said deed is sham, nominal and collusive, and has not come into effect. His son has only an undivided right and, therefore, not competent to alienate a specific share. In that sale deed, there is a reference; regarding an oral partition, which is false. An attempt was made by the defendants to trespass into the property on the basis of the statements in the document. Therefore, the plaintiff initiated proceedings under Sec.145, Crl.P.C. as M.C. No.42 of 1965. In that proceeding, a finding was given that the defendants were in possession. It was therefore, the abovesaid suit O.S. No.184 of 1968 was filed for declaration of his title over the suit property, for recovery of possession and for mesne profits. The defendants contested the suit. The suit was decreed as prayed for. The defendants took the matter in appeal before the Subordinate Judge, Dindigul, as A.S. No.5 of 1970, but without success. The matter was taken to this Court in S.A. No.1695 Of 1972. This Court also confirmed the judgments of both the trial court and first appellate court, and accordingly dismissed the second appeal, on 21. 1977. While disposing of the second appeal, this Court observed that the remedy of the defendants was to file a suit for general partition. It was also further observed that the partition between the plaintiff and his son was not binding on the purchaser. After disposal of the second appeal, plaintiff filed an execution petition and obtained physical possession of the property on 8. 1978. The plaintiff continues to be in possession. It is said that since the defendants have no right over the property, they cannot disturb the possession. But the plaintiff apprehended that there was a possibility of trespass by the defendants and, therefore, filed a suit for declaration of title and injunction.

4. The first defendant, in his written statement, contended that the suit is not maintainable. The allegation that the property has been allotted to the plaintiff as per partition deed dated 2. 1964 is not binding on him, especially when that property has been conveyed to the defendant as per sale deed executed by his son. It is said, that Bhagavathi Kalyani Chettiar, on the date of the sale deed,