Maharajan, J.-The second defendant appeals.

The suit out of which the appeal arises was laid in forma pauperis by respondents 1 to 3, who were minors and were represented by their next friend and mother Kamalamma, for partition and separate possession of their 3/8th share in the suit properties with mesne profits and costs. Sadagopan, who is no other than the father of the plaintiffs (respondents 1 to 3) was impleaded as the first defendant (fourth respondent herein). Nallathambi Goundan, the appellant, figured as the second defendant in the suit.

2. The facts leading to the institution of the suit may be briefly stated: — Vijayaraghavan, Venkatesan and Ranganathan, the plaintiffs in the suit, are the three sons of Sadagopan, the first defendant, whose father Venkatesa Iyengar instituted two suits O.S. Nos. 2 and 26 of 1945 on the file of the Sub-Court, ‘Salem, for specific performance of two agreements of sale in respect of the suit properties. One agreement related to a portion of the suit properties and had been concluded between Venkatesa Iyengar and Ramaswami Goundan, the father of Nallathambi Goundan, the second defendant in the suit. The other agreement related to the remaining portion of the suit properties and was concluded between Venkatesa Iyengar, on the one hand, and one Perumal Chetty, on the other. Before the trial of the suits commenced, Venkatesa Iyengar died and his son Sadagopan impleaded himself as the second plaintiff in both the suits, and continued the suits as the legal representative of his deceased father. Ramaswami Goundan, the father of the second defendant also died pendente lite with the result the second defendant was impleaded as heir of Ramaswami Goundan, and the suits were proceeded with. The trial Court dismissed both the suits. Thereupon, Sadagopan preferred A.S. No. 186 of 1947 and A.S. No. 12 of 1948 on the file of the High Court. By judgment, dated 11th January. 1950, a Bench consisting of Govinda Menon. and Basheer Ahamed Sayeed, JJ., allowed both the appeals (Vide Exhibit A-1) with the following observations:

“In view of what we have stated above and our finding in regard to the genuineness of Exhibits P-1 and P-2 and the failure on the part of the plaintiffs (Venkatesa Iyengar and Sadagopan) to prove payment of consideration we set aside the decrees of the learned Principal Subordinate Judge of Salem and direct the first and third defendants in O.S. No. 2 of 1945 (Perumal Chetti and Nallathambi Goundan respectively) to transfer, convey and assign the one half share of all the suit properties in favour of the present appellant (Sadagopan) on receipt from the appellant (Sadagopan) of the sum of Rs. 1.930 and Rs. 536-4-0 being half the consideration paid into Court for the purpose of the suit properties and to deliver possession of the said half share of the properties to the present appellant (Sadagopan) after partition and also to execute the necessary documents to effectuate the said transfer. We further direct that each party will bear his costs throughout and that there will be no claim for either party in respect of the mesne profits.”

Nallathambi Goundan, the second defendant in this suit, preferred appeals to the Supreme Court in Civil Appeal Nos. 15 and 16 of 1964 against the said judgment of this Court. But both the appeals were dismissed by the Supreme Court on 21st November, 1958. Meanwhile, Sadagopan applied in I.A. Nos. 19 and 73 of 1953 to the Sub-Court, Salem, for the grant of final decree after division of the suit properties into two equal moieties and allotment of one such moiety to him. In these applications, he also prayed for ascertainment of the mesne profits. A Commissioner was appointed by the Sub-Court, Salem, in these final decree applications. But before the final decree could be granted the proceedings were stayed pending disposal of the appeals filed in the Supreme Court. According to the plaintiffs, though the Supreme Court dismissed the appeals on 21st November

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