Self-acquired property enmeshed with joint family character.

Sadasivam, J.-This appeal by the plaintiff in O.S. No. 259 of 1961, on the file of the Subordinate Judge’s Court, Coimbatore, relates to the site, building, machinery, furniture, etc. of a cinema theatre known as ‘Narayana Talkies" in Pollachi, more fully described in the plaint schedule. Narayana Pillai, the father of the plaintiff and the third defendant and the paternal grandfather of defendants 4 to 6, leased the theatre to the second defendant and his partner one Muthuswami Gounder for a period of seven years from 1st November, 1949, under a lease deed dated 19th October, 1949. The interest of Muthuswami Gounder devolved on. defendants 1 and 2 on the dissolution of the partnership. On 24th March, 1956,. Narayana Pillai entered into an agreement with defendants 1 and 2 for granting an extension of the lease of the theatre for a further period of five years. But subsequently Narayana Pillai instituted the suit O.S. No. 175 of 1958, on the file of the Sub-Court, Coimbatore, against defendants 1 and 2 for recovery of possession of the cinema theatre. Defendants 1 and 2, in their turn, filed O.S. No. 227 of 1958 on the file of the Sub-Court, Coimbatore, for specific performance of the agreement dated 24th March, 1956 for extension of the lease for five years. It is during the pendency of these suits Narayana Pillai and the members of his family entered into the registered partition deed Exhibit A-1 dated 15th October, 1958. Subsequently Narayana Pillai died. On 18th November, 1959, defendants 1 and 2 took a lease of the suit properties from the present plaintiff and defendants 3 to 6 under Exhibit A-2 for the unexpired portion of five years mentioned in the agreement on 24th March, 1956, namely, one year, eleven months and thirteen days and thus the above two suits were compromised. On 26th February, 1960, defendants 4 and 5 sold their one-fourth share of the suit properties to defendants 1 and 2 under Exhibit B-1. On the same date, the third defendant sold his one-fourth share in the suit properties to defendants 1 and 2 under Exhibit B-2. On 17th April, 1960, the sixth defendant, who was mentally unsound and was represented by his mother, leased his share in the suit properties to defendants 1 and 2. In R.C.O.P. No. 34 of 1961 defendants 1 and 2 unsuccessfully invoked the jurisdiction of the Rent Court for depositing the rents due to the appellant-plaintiff. The appellant-plaintiff filed the present suit to recover possession of the suit properties together with damages at the rate of Rs. 2,500 per month for use and occupation.

The learned Subordinate Judge found that the document Exhibit A-1, though styled a deed of partition, is really a deed of gift, that the clauses and conditions in the deed Exhibit A-1 as regards the restraint on alienation and the mode of enjoyment are not valid and binding on the defendants and cannot be enforced after the lifetime of Narayana Pillai, that by virtue of the execution of the lease deed Exhibit A-2 the plaintiff (appellant) has abandoned his rights to recover possession of the suit properties under Exhibit A-1 and is also estopped from doing so, that the suit is not maintainable without setting aside the alienations made by defendants 3 to 5 that the order of the Rent Controller in the proceedings taken by defendants 1 and 2 cannot operate as res judicata in these proceedings and in the result dismissed the suit with the costs of defendants 1 and 2. Hence the plaintiff has preferred this appeal.

Though the sixth defendant filed a written statement on the same lines as defendants 3 to 5 denying the plaintiff’s claim, he now supports the claim the appellant-plaintiff, as the lease granted by him has expired and he has filed a suit to establish his rights to his share of the suit properties.

The main question for consideration in this appeal is whether Exhibit A-1 is really a partition deed as styled in the document, or in the alternative, a deed of family arrangement, as contended by the le

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