BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 19/12/2008 Coram THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.152 of 2001 and C.M.P.Nos.16186 & 16187 of 2001 and M.P.No.5 of 2008 1.P.Ganesan (1st plaintiff) 2.P.Guruswamy (2nd plaintiff) ... Appellants vs. 1.Shanmughathai Ammal (D1) 2.P.Velayutham (D2) 3.Uma (D3) 4.Kumaravel (D4) 5.Ramarajan (D5) 6.Krishnaveni (D8) 7.S.Balasubramaniam (died) (D9) 8.S.Murugan (D10) 9.M.Venkateswari (D11) 10.S.Vijayalakshmi 11,Marikani (minor) 12.Abirami (minor) ... Respondents (R10 to R12 are brought on record as LRs of the deceased 7th respondent vide order of the Court dt 28.2.2008 made in MP.1 to 3 of 2008 in A.S.No.152 of 2001) Prayer This appeal has been filed under Section 96 of C.P.C., against the decree and Judgment dated 05.09.2000 in O.S.No.160 of 1995 on the file of the Court of Subordinate Judge, Srivilliputtur. !For Appellant ... Mr.S.C.Herold Singh, Advocate ^For Respondents ... Mr.M.Venkatachalapathy, Senior Counsel for P.Rajendran, Advocate (for RR2 to 6, 8 & 9) ----- :JUDGMENT
This appeal has been preferred against the decree and Judgment in
O.S.No.160 of 2005 on the file of the Court of Subordinate Judge,
Srivilliputtur. The plaintiffs are the appellants herein. The suit was filed
for partition of plaint schedule Item Nos.1 to 17 properties.
2.The brief facts of the plaint relevant for deciding this appeal are as
follows:-
The genealogy of the plaintiffs’ family is as follows:-
Punnavana Nadar
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Shanmugathai Ammal(wife -D1)
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Velayutham P.Ganesan P.Gurusamy Ramarajan Subbammal (died)
(D2) (Plaintiff-1) (plaintiff-2) (D5) (D6)i
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S.Seeniyappan (died)
Uma (wife of D2) (D7) (husband of D6)
(D3)
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i Krishnaveni(D8) S.Balasubramanian(D9) S.Murugan (D10)
(children of D6 & D7)
Kumaravel (D4)
(son of D2 & D3)
The first defendant is the wife of Punnavana Nadar, who died in 1984. The
plaintiffs, D2 and D5 are the sons of the said Punnavana Nadar. D6 is the
daughter of the said Punnavana Nadar. D3 is the wife of D2. D4 is the son of
D2 & D3. All of then constituted a joint Hindu family. All the properties
scheudled to the plaint are joint family properties belonging to the children of
Punnavana Nadar. Punnavana Nadar was a hardworking man, was residing at
Nathampatti Village, Srivilliputtur Taluk. The 2nd defendant is the eldest son.
All the sons were assisting the father. Properties were purchased in the name
of the father, mother as well as the defendants 2 to 4. Though the properties
were purchased in the name of the defendants 2 to 4, the said properties were
purchased with the funds of joint family and all joint family properties are
liable for division. The properties were treated as joint family properties.
The 2nd defendant was only a teacher and he could not have purchased the plaint
schedule properties with his funds. The properties were enjoyed in common by
all the co-sharers. Since the properties are acquired from the father’s funds
after the death of the father, the plaintiffs, D1, D2, D5 & D6 will be entitled
to equal share. Thus the plaintiffs claim 2/6th share in the plaint schedule
properties. The 2nd defendant is now attempting to sell the properties, which
stand in his name and in the name of his wife. Thus the plaintiffs thought it
fit to have separate possession of their shares in respect of the plaint
schedule properties. An attempt to divide the properties through mediators
proved futile. During the pendancy of the suit D6 died. D7 to D11 are added as
legal representatives of D6. At the instance of D11 he was permitted to implead
herself as LR of Subbammal-D6. Hence, the suit for partition.
3.D1 and D8 to D10 remained exparte. D11 submitted to the decree.
4.The 2nd defendant to 4th defendant filed a joint written statement
contending that the suit is bad for mis-joinder and non-joinder all parties. D3
and D4 are unnecessary parties to the suit. The properties which are not liable
for partition are also included in the plant schedule. The properties in the
hand of the plaintiffs have been purposely omitted to be included in the plaint
schedule. The Court has no territorial jurisdiction to entertain the suit since
several properties mentioned in the plaint schedule lie out side the
jurisdiction of the Court. D1 and D6 have colluded together in instituting the
suit. The suit claim is barred by limitation. Even according to the
plaintiffs, the partition opens in the year 1984. There was no material placed
before the Court to show that the parties were in joint possession of the plaint
schedule properties. The Court fee paid by the plaintiff is not correct for the
purpose of court fee and jurisdiction. The suit is hit by the provisions of
Benami Transaction (prohibition) Act 1988. The plaintiffs cannot ask for
partition of the properties separately belonging to these defendants, which are
their self-acquired properties. Punnavana Nadar died on 21.2.1984 at Madurai.
The suit properties were not purchased with the funds of joint family as alleged
in the plaint. The properties were not treated as joint family properties and
they ware now enjoyed in common. The plaintiffs are not entitled to 2/6th share
in the plaint schedule properties. There was no mediation took place during
March-1995 as alleged in the plaint. The plaintiffs have no cause of action to
file the suit. There was no sufficient funds or nucleus of the family to
purchase the plaint schedule properties. The landed property bearing S.No.322
also shown in Item No.14 of the plaint schedule, has been settled in favour of
the 2nd defendant and the 5th defendant by means of registered deed dated
26.8.1974 and also provided a considerable income for reaching the aim of the
2nd defendant. The 2nd defendant after completing his education with the help of
scholarship, had started his career as school teacher in 1964 in Kannamangalam
Village, North Arcot District. Out of his own efforts, he completed B.Ed., and
then joined service as a Teacher at Nagamalai Jeyaraj Nadar Higher Secondary
School. The marriage of the 2nd defendant took place on 11.12.1967 with a
daughter of a business magnet at Madurai. The 2nd defendant’s father-in-law
A.S.R.Somasundara Nadar was doing lucrative business in rice mill, which
provided an opportunity for the 2nd defendant to step into his aimed goal for
advancement in life. The 2nd defendant has also joined as a teacher in South
Gates Nadar School and his teaching profession provided enough time to
concentrate also in business side. The 2nd defendant entered into the business
field in the year 1968 itself with his own income and with the help of his
father-in-law. The business included conversion of paddy into rice and selling
the same in the wholesale market. Neither the plaintiffs nor the father or
other family members provided any monetary or physical help to the 2nd defendant
in his venture. The 2nd defendant worked as a teacher till the end of
31.5.1972 and he gradually entered into the business field with his own
investment and physical labour. The 2nd defendant with his personal income
also began to purchase properties from the year 1971. With the experience he
gained under his father-in-law, he began to establish his own rice mill at Gate
Lock Road, Madurai, after getting approval of the plan in his name and also
getting hulling licence etc., in his name. Both the wife of D2 and also D3 are
helpful in the business of the 2nd defendant. The 2nd defendant had also taken
a lease of the rice mill premises from one V.P.L.Perumal Naidu of Annuppanadi
Village. The 2nd defendant with the help of his wife was able to purchase the
leasehold premises itself and hulling licence was obtained in their name and had
obtained licence in their name and had lucrative business with his hard work.
The rice mill owned by him was also named as “Vathiyar Rice Mill”. He had also
purchased landed properties at Chinna Anuppanadi in the name of D2 to D4 for the
purpose of establishing another mill on account of their interest to get
agricultural produces. The properties purchased by these defendants stood in
their respective names and they have also paid tax, kist etc., to the
properties. The assessment of property tax and income tax also stood in their
respective names. Land acquisition proceedings were taken in respect of the
lands owned by these defendants. The residential house purchased by the third
defendant exclusively belongs to her. In the properties purchased by these
defendants the plaintiffs have no iota of rights. Plaint schedule Item No.1
was purchased as vacant site from out of the personal income of D2 and he
constructed a new building over the site. Punnavana Nadar never exercised any
right or control over the said property and to his knowledge, he was only a name
lender. Items 2 to 6 are the portions of the rice mill premises called
“Vathiyar Rice Mill” at 2-B, Gate Lock Road, Madurai. Those properties are
private properties of the defendants 2 to 4. They have obtained licence for
running the rice mill and electric service connection for the said industry.
They are also paying the house tax, urban tax in respect of the said properties.
Likewise plaint schedule Item Nos.7, 8 & 9 properties are agricultural lands
standing in the name of the defendants 2 to 4 respectively and they are also
under their personal cultivation. The revenue records also stand in their
name, besides the electric service connection. They are also paying land tax
for those properties. These defendants have also proposed to establish another
modern rice mill in the said land after a portion of the land was acquired for
the formation of Ring Road. The 2nd defendant was instrumental for purchasing
those properties from out of his self earning and also from out of these
defendant’s personal money. Though plaint schedule Item No.9 was purchased in
the name of Punnavana Nadar for the benefit of the 2nd
defendant in trust, the father or the 2nd defendant did not contribute any money
or exertion. Taking into consideration the name of the father as lucky one,
the 2nd defendant purchased the above said property in the name of Punnavana
Nadar. In respect of plaint schedule item Nos.9 & 12 the father of D2 viz.
Punnavana Nadar had executed a Will dated 19.10.1983 bequeathing those two
properties in favour of D4, the sons of D2, who in turn had executed a
settlement deed in favour of the 2nd defendant. Now Item Nos.9 & 12 stand in
the name of the 2nd defendant. Item No.13 of the suit property is used as
“Kalam” for the modern rice mill. Which stands in the name of the 4th defendant.
0.34.0 ares of land comprised in S.No.322 absolutely belongs to the 2nd
defendant and the 5th defendant by means of settlement deed executed by
Mayakrishna Nadar. The ancestral properties namely 0.19.0 Ares of land and
0.18.0 Ares of land in Yar Nathampatti Village comprised in S.No.320/3-B-2 and
265/2-B-1 respectively. The properties bearing S.No.310/1 (0.05.5 ares) and
S.No.310/2 (0.19.0 ares) and S.No.321 (0.81.0 Ares) sand in the name of the 1st
defendant. Item No.15 mentioned in the plaint schedule is also a self-acquired
property of Punnavana Nadar and it is used for the residence of the family
members. Likewise ItemNo.16 which is also self-acquired property of Punnavana
Nadar is now used as godown. Item No.17 mentioned in the plaint schedule is an
ancestral property. There is no cause of action to file the suit. No demand
for partition was made to these defendants. Hence, the suit is liable to be
dismissed.
5.The 5th defendant in his written statement would contend as follows:-
The suit is not maintainable. The suit is bad for mis-joinder and
non-joinder of necessary parties and also on account of mis-joinder of cause of
action. The suit is barred by time. The Court fee paid on the plaint is not
correct. The suit is hit by the provisions of Benami Transaction (Prohibition)
Act, 1988. The 5th defendant adopted the written statement filed by D2 in all
factual aspects. The plaintiffs are not entitled to any share much less 2/6th
share in the plaint schedule properties. The father of the plaintiffs, D2, D5
and D6 viz., Punnavana Nadar had not contributed anything for the purchase of
the plaint schedule properties. The 2nd defendant had purchased the properties
from out of his own funds as per the registered settlement deed dated 26.8.1974.
The 2nd defendant had settled landed properties in favour of D5. The 5th
defendant also able to acquire plaint schedule Item No.13 property by his own
efforts, which was later transferred in the name of the 4th defendant. This
defendant was also assessed to taxes. The properties available for partition as
ancestral as well as as the properties exclusively belonging to this defendant’s
father are scheduled to the plaint. The plaintiffs are assessed to taxes.
From the income derived from the ancestral and self-acquired properties of
Punnavana Nadar, the plaintiffs have purchased the plaint schedule properties.
The plaintiffs have no other source of income for acquiring wealth in their
hand. Hence, the suit is liable to be dismissed.
6.The defendants 2 to 4 in their additional written statement would
contend that from the year 1964, D2 is living separately and D2 was working as a
teacher from the year 1964 in various places. He got married in the year 1964
and his father-in-law Somasundara Nadar was having rice mill at Madurai. With
the income he derived from the avocation of teacher profession, as well as from
the rice mill business, D2 purchased the plaint schedule Item No.2 under a
registered sale deed dated 29.01.1974 for a sum of Rs.9,000/-, as a vacant site.
Thereafter, he had constructed a rice mill and the same was reopened on
26.11.1972. Thereafter, D2 resigned his teacher job and indulged in the rice
mill business. The 2nd defendant has also taken lease of Item No.11 rice mill
as per the lease agreement dated 20.10.1972. Thus from 20.10.1972 D2 was doing
rice business in two rice mills and had lucrative income from those two rice
mills. From out of the income earned, the 2nd defendant had purchased the rice
mill in plaint schedule item No.11 from his owner under a registered sale deed
dated 11.12.1974. From out of the income derived from the above said two rice
mills, the 2nd defendant had also purchased Item No.7 under a registered sale
deed dated 25.6.1975 for a sum of Rs.15,000/-. The 2nd defendant also purchased
the plaint schedule Item No.6 under a registered sale deed dated 21.4.1980 from
one Lakshmi Ammal from out of his independent income. Under two registered
settlement deeds dated 15.7.1994 plaint schedule Item No.12 and plaint schedule
Item No.9 were purchased by the 2nd defendant from D4. The 2nd defendant has
also named his rice mill in plaint schedule Item No.11 as “Vathiyar Rice Mill”
and also has obtained rice mill license in his name besides obtaining telephone
connection. The 2nd defendant has mordenized his rice mill in plaint schedule
Item No.11 by spending Rs.30 lakhs. He has also provided a drying yard at
plaint schedule Item No.6 by spending Rs.50 lakhs and has also improved the
plaint schedule Item No.7 by spending Rs.25 lakhs. In plaint schedule item
No.7, the 2nd defendant had also constructed a godown and also a paddy dyring
yard by spending Rs.3 lakhs. Of the above said properties, the 2nd defendant is
paying wealth tax as well as income tax from the year 1974. The plaint schedule
Item Nos.2, 6, 7, 9, 11 & 12 are all belonging to the 2nd defendant. He is in
possession and enjoyment of the above said properties for the past 28 years,
without any interference from any quarter. The total value of item No.2, 6, 7,
9, 11 & 12 is Rs.96 lakhs. Item No.4 was purchased in the name of D3, who is
the wife of D2, from out of the cash provided by this defendant’s father-in-law.
The 3rd defendant has also purchased the plaint schedule item No.8 under a
registered sale deed dated 25.06.1975. The 3rd defendant also purchased plaint
schedule Item No.10 on 15.03.1979 under a registered sale deed for a sum of
Rs.45,000/-. The 3rd defendant also purchased plaint schedule item No.5 on
21.4.1980. So, the plaint schedule item Nos.4,5,8 & 10 belong to D3. The
plaint schedule item No.4 property was purchased by D3 on 11.3.1974 and he has
also installed a rice mill in the said property and the licence was also
obtained in the name of D3 for the said property. The said rice mill was
constructed in the year 1980. Both the plaint schedule Item Nos.4 & 5 are
situated side by side. In the plaint schedule Item No.10 a portico was
constructed by spending Rs.9 lakhs. The 3rd defendant was paying income tax and
wealth tax. The value of the plaint schedule Item Nos.4, 8, 10 & 5, which
belonged to the 3rd defendant, is Rs.30 lakhs. In the above said D3’s
properties no one was in joint possession. The plaint schedule Item No.3
property was purchased by D4 on 11.3.1974 under a registered sale deed. Plaint
schedule Item No.13 belongs to the 4th defendant under a registered sale deed
dated 23.12.1992. So the plaint schedule Item Nos.3 & 13 are the self-acquired
properties of D4. The plaintiffs have no right or title in respect of the
plaint schedule Item Nos.3 & 13. The plaint schedule Item No.3 worth Rs.1 lakh.
Plaint schedule Item No.13 also worth Rs.1 lakh. The 4th defendant is also
paying income tax and wealth tax. The remaining properties are the plaint
schedule Item Nos.1, 14, 15, 16 and 17. In plaint schedule Item No.14 the item
No.71 is S.No.322 measuring 84 cents which belonged to Mayakrishnan Nadar, who
had executed a settlement deed dated 26.8.1974 in favour of D2 & D5. The
plaintiffs have no right or title in respect of the plaint schedule Item No.17.
So Item No.17 in the plaint schedule Item No.14 ie., 84 cents in S.No.322
belongs to D2 & D5 under the settlement deed dated 26.08.1974. The said
Punnavana Nadar died on 21.02.1984 leaving plaintiffs, D5 & D6 as his LRs. So
the plaintiffs will be entitled to a share in Item Nos.14 to 17 only. The
plaint schedule Item Nos.1, 9 & 12 properties were purchased by D2 Benami in the
name of his father Punnavana Nadar. The sale consideration for the above said
three sale deeds were paid only by D2. The 2nd defendant has helped a lot to
his father Punnavana Nadar and his family. So as a gratuitous gesture Punnavana
Nadar had executed a Will dated 19.10.1983 in respect of Plaint schedule Item
No.9 & 12 in favour of D4, the son of D2. Punnavana Nadar died on 21.2.1984. So
after his death the said Will came into force. As per the above said Will,
plaint schedule Item No.9 & 12 belonged to D4. In respect of plaint schedule
Item No.12 the Government has taken land acquisition proceedings. The land
compensation was also awarded (a sum of Rs.1,60,010/-) in the name of D4 on
24.12.1992 by the Government. The 4th defendant had executed two settlement
deeds dated 15.7.1994 in respect of plaint schedule Item Nos.9 & 12 in favour of
this father D2. So the plaint schedule Item No.9 & 12 also belonged to D2. The
plaint schedule Item No.1 was purchased in the name of Punnavana Nadar by D2.
But no document was executed in respect of plaint schedule Item No.1 by the said
Punnavana Nadar. In the sale deed taken in the name of D3 & D4, Punnavana Nadar
has also signed as a witness. So, these defendants have no objection for
passing a preliminary decree for partition in respect of the plaint schedule
Item Nos.1, 14 to 17. In respect of the other plaint schedule properties the
suit is liable to be dismissed.
7.The 4th defendant in his additional written statement would contend that
in the plaint the market value of the plaint schedule Item No.14 is shown as
Rs.5,25,000/-. The said valuation is not correct. The plaint schedule Item
No.17 in plaint schedule Item No.14 ie., 0.34.0 Ares in S.No.322 belonged to
Mayakrishnan, who had executed a settlement deed dated 26.8.1974 in favour of D2
and D5. So in respect of the said property, the plaintiffs cannot claim any
right. The plaint schedule Item Nos.15 & 16 were purchased by Punnavana Nadar
from out of the joint family nucleus and he had dug up a well and installed a
motor pump set. Punnavana Nadar had mortgaged the plaint schedule item No.14
with Tharani Sugar Mills and raised mortgage loan of Rs.33,200/-. This fact
itself will go to show that there was no income derived by Punnavana Nadar from
the plaint schedule Item No.14. In plaint schedule Item Nos.15 & 16 an house
was also constructed by Punnavana Nadar from out of the income derived from his
agricultural lands. The plaint schedule item No.13 belongs to D5 as per the
sale deed dated 11.12.1974 at the time of purchase of the said sale deed D5 was
studying as a student in Senthilkumar College, Virudhunagar. For the said sale
deed, sale price was paid by D2 from out of his own income. Later D5 executed a
sale deed dated 23.12.1992 in respect of the said property in favour of D4. So
in plaint schedule Item No.13 the plaintiffs cannot claim any share. This
defendant is not entitled to any share in plaint schedule Item Nos.2 to 13. In
plaint schedule item No.12 and also in plaint schedule Item No.1, D2 had
constructed three floor building by spending Rs.6 lakhs and has also named the
said building in the name of his son’s name as “kumaravel Illam”. The Will
dated 19.10.1983 in respect of the plaint schedule item Nos.9 & 12 executed by
Punnavana Nadar in favour of D4 came in to effect. As per the said Will,
plaint schedule Item Nos.9 & 12 belong to D4. In the plaint schedule Item No.1
D5 is also entitled to 1/6th share. Like that in plaint schedule Item Nos.14 to
17 also D5 is entitled to 1/6th share. The 5th defendant has paid Court feet
for partition of his 1/6th share in plaint schedule Item Nos.1, 14 to 17.
8.The 1st plaintiff in his reply statement would deny the averments in the
written statement of the contesting defendants. There was a partition entered
into between Punnavana Nadar and his brother Mookaiya Nadar on 8.8.1950. The
joint family of Punnavana Nadar was getting Rs.60,000/- to Rs.70,000/- per month
towards agricultural income from the landed properties belonged to the joint
family. The land bearing S.No.322 in plaint schedule Item No.14 belonged to
Punnavana Nadar’s uncle’s son Mayakrishnan Nadar. Under an exchange arrangement
Punnavana Nadar’s sons D2 to D5 got S.No.322 undeer a settlement ded dated
26.08.1974. But possession was not handed over to D2 to D5. But the said
property was enjoyed as a joint family property. No sufficient income was
derived by D2 through his avocation as a teacher to purchase the plaint schedule
properties. There was no Will dated 19.10.1983 executed by Punnavana Nadar in
respect of plaint schedule Item Nos.9 & 12 as alleged in the written statement.
The alleged Will is a forged document.
9.On the above pleadings the learned trial Judge has framed 15 issues and
two additional issues for trial. On the side of the plaintiffs P.W.1 to P.W.4
were examined and Ex.A.1 to Ex.A.30 were marked. On the side of the defendant
D.W.1 to D.W.6 were examined and Ex.B.1 to Ex.B.201 were marked. Ex.X.1 was
also marked by the Court as a third party document. After scanning the evidence
meticulously the learned trial Judge has come to a conclusion that only in
respect of plaint schedule Item Nos.1, 14 to 17 plaintiffs are entitled to 2/6th
share (each 1/6th share) and D5 was also granted a preliminary decree for
partition of 1/6th share in plaint schedule Item Nos.1, 14 to 17. In respect of
the plaint schedule Item Nos.2 to 13 the suit was dismissed. Aggrieved by the
findings of the learned trial Judge, the plaintiffs have preferred this appeal.
10.Now the points for determination in this appeal are ;
(1)Whether the plaintiffs are together entitled to 2/6th share in
plaint schedule item Nos.2 to 17 or they are the exclusive properties of D2 to
D4?
(2)Whether the 2nd defendant is entitled to plaint schedule Item
Nos.9 & 12 as per the settlement deed executed by D4 under Ex.B.155 and under
Ex.B.156?
(3)Whether the 4th defendant got any right or title in respect of
the plaint schedule Item Nos.9 & 12 under the alleged Will dated 19.10.1983 said
to have been executed by Punnavana Nadar?
(4)Whether the decree and Judgment in O.S.No.160 of 1995 on the file
of the Court of Subordinate Judge, Srivilliputtur, is liable to be set aside for
the reasons stated in the memorandum of appeal?
11.Point No.1 Admitted facts are one Punnavana Nadar had four sons viz.,
2nd defendant, 1st plaintiff, 2nd plaintiff and 5th defendant and one daughter
viz. 6th defendant. The two sons of Punnavana Nadar have filed this suit for
partition of the plaint schedule properties viz., Item No.1 to 17 claiming that
all the plaint schedule properties are purchased from out of the income derived
from the joint nucleus of the Hindu joint family property of Punnavana Nadar,
the plaintiffs, D2 & D5. The learned trial Judge after going through the
documentary and oral evidence has held that the plaint schedule Item Nos.1, 14
to 17 alone are the Hindu joint family properties of Punnavana Nadar and his
sons has decreed the suit accordingly by passing a preliminary decree for
partition of plaintiffs 2/6th share in the plaint schedule properties.
Punnavana Nadar is no more as seen from Ex.P.139. His wife Shanmgathai Ammal –
D1 in the suit remained exparte, but she was examined as P.W.2 on the side of
the plaintiffs. With regard to the findings that the plaint schedule Item No.1
and plaint schedule item Nos.14 to 17 are the Hindu joint family properties,
there is no cross-appeal preferred by the contesting defendants. Hence, so far
as the plaint schedule Item Nos.1, 14 to 17 are concerned the decree and
Judgment of the learned trial Judge as to the finding that they are Hindu joint
family properties of late Punnavana Nadar has become final. With regard to
plaint schedule item No.2, the 2nd defendant, the contesting defendant before
the trial Court as D.W.1 would depose that the plaint schedule Item Nos, 2, 3,
5, 8 & 9 were purchased in the name of his father late Punnavana Nadar and that
his father was an agriculturalist and there was no other source of income for
him. He would depose that he is the only educated member of the Hindu joint
family of late Punnavana Nadar and that he joint in service as a teacher after
completing B.Sc, B.Ed., decree and that he got married in the year 1967 and his
father-in-law was A.S.R.Somasundara Nadar, who was in an affluent position and
that his father-in-law was having a rice mill of his own and that from February
1968 onwards he was looking after his father-in-law’s rice mill and indulged in
rice mill business besides his regular avocation. It is the case of the
contesting 2nd defendant that from out of his own income he had purchased the
plaint schedule Item No.2 on 29.01.1971 under Ex.B.8-sale deed from one
Kondalsamy Naidu for a sum of Rs.9,000/-.
11(a)The learned counsel appearing for the appellants/plaintiffs would
contend that even though the 2nd defendant would claim that he had paid the sale
consideration for Ex.B.8-sale deed, in fact the sale consideration was paid by
his father-in-law Somasundara Nadar as admitted by him. The defendant’s father-
in-law Somasundara Nadar was examined as D.W.4, who would admit that D2 is his
son-in-law and that he gave his daughter in marriage to D2 in the year 1967 and
that he was doing rice mill business and that he is the owner of two rice mills.
According to him, D2 had resigned his avocation in the year 1972 and indulged in
rice mill business along with him after taking a rice mill on lease. In the
cross-examination he would admit that at the time of registration of Ex.B.8-sale
deed he also accompanied D2 to the Sub-Registrar’s office and the sale
consideration of Rs.9,000/- under Ex.B.8-sale deed was paid by him after
receiving the said amount of Rs.9,000/- from his son-in-law ie., the 2nd
defendant. In categorical terms he would depose that the said sum of Rs.9,000/-
belongs to D2 only. Bassing his reliance on Ex.A.13 to Ex.A.28 – bills for the
sale of chillies and cotton, the learned counsel for the appellant would contend
that the Hindu joint family of late Punnavana Nadar was getting sufficient
income from the agricultural lands owned by the Hindu joint family and only from
that amount, the sale consideration for Ex.B.8 was paid by D2 and hence, plaint
schedule Item No.2 is to be construed as a joint family property of late
Punnavana Nadar. But to my surprise not even a single bill out of Ex.A.13 to
Ex.A.28 relates to the year 1971 on which year Ex.B.8 – sale deed dated
29.1.1971 was taken by the 2nd defendant in his name. In Ex.A.13 is torn. The
English year is not found therein. But the corresponding Tamil year 1152 is
seen in Ex.A.13, which relates to the year 1977. Ex.A.14 is of the year 1976,
Ex.A.15 is of the year 1977, Ex.A.16 is of the year 1977, Ex.A.17 is of the year
1983. Ex.A.18 is of the year 1977, Ex.A.19 is of the year 1977, Ex.A.20 is of
the year 1977, Ex.A.21 is of the year 1978, Ex.A.22 is of the year 1977,
Ex.A.23 is of the year 1977, Ex.A.24 is of the year 1977, Ex.A.25 is of the
year 1977, Ex.A.26 is of the year 1978. Ex.A.27 is of the year 1978, Ex.A.28
is of the year 1983, Exs.A.15, 16, 19, 20, 22, 23, 24, 26 are Bills relating to
the sale of Chillies. Exs.A.17, 18, 21, 25, 27 & 28 are relating to the sale of
cotton. From the above bills which are relating to the year from 1976 to 1983
the total earning of the joint family comes to below Rs.30,000/- only. Even
though it was contended on behalf of the plaintiffs that apart from the income
under Ex.A.13 to Ex.A.23, the Hindu joint family was deriving sufficient income
from the sale of paddy and sugar, there is no material placed before the trial
Court to show that the Hindu joint family of late Punnavana Nadar was getting
substantial income from the Hindu joint family properties of late Punnavana
Nadar. D.W.1 (D2) would further depose that in the vacant site of 22 . cents
purchased by him under Ex.B.8, he had installed a rice mill and Ex.B.9 is the
invitation card printed by him for the reopening of the rice mill. He has also
produced Exs.B.10, 35, 36, & 37 to show that the said rice mill was named by him
as “Vathiyar Rice Mill” and that licence also stands in his name. The plaint
schedule Item No.2 is 16 . cents in T.S.No.2390 Old Annupandi Road, Gate Lock
Road, Madurai Twon. According to D.W.6, Kumaravel-D4 and his parents had
purchased the said property in his name when he was minor through his mother and
guardian V.Uma (D3) under Ex.B.131 (wrongly typed in the deposition of D.W.6 as
Ex.B.137). So far the plaintiffs have not taken any steps to set aside
Ex.B.131-sale deed, which stands in the name of D4 on the ground that the said
property belongs to the Hindu joint family of late Punnavana Nadar and not to
D4. The plaint schedule Item No.4 is 16 . cents in T.S.No.2390 Gate Lock Road,
Madurai Town. The 2nd defendant in his evidence would depose that D3 is his
wife and plaint schedule Item No.4 was purchased by his wife on 11.3.1974 under
Ex.B.82-sale deed. It is not the claim of the plaintiff that the plaint
schedule item No.4 was purchased from out of the joint family income of late
Punnavana Nadar in the name of D3. The plaint schedule Item No.5 is 20 cents
out of 56 cents in T.S.No.2399 of Annupandi Village, Madurai Town. According
to D2, the plaint schedule Item No.5 was purchased by his wife D3 on 21.4.1980
under Ex.B.100-sale deed for a sum of Rs.8,000/-. It is not the case of the
plaintiff that the property purchased under Ex.B.100 in the name of D3 on
21.4.1980 from out of the joint family income derived from the joint family
nucleus of the joint family property of late Punnavana Nadar. According to D2,
the plaint schedule Item No.6, 11 . cents out of 56 cents in T.S.No.2399 of
Annupandi, Madurai Town, was purchased on 21.4.1980 by D2 under Ex.B.73 for a
sum of Rs.9,500/- and the plaint schedule Item No.7 measuring 3 acres 9 cents in
S.No.82/2, 85/2 and 82/1 in Annupandi Village, Madurai Town, along with five
horse power electric motor pump set and well was purchased for Rs.15,000/- by D2
on 25.6.1975 under Ex.B.56-sale deed. The plaint schedule Item No.8 measuring 3
acres 39 cents in S.Nos.82/10, 82/9, 82/8, 82/3 & 82/4 in Annupandi Vilalge,
Madurai Town, was purchased in the name of D3 on 25.10.1975 for a sum of
Rs.10,000/- under Ex.B.101. There is no material placed before the trial Court
to show that the sale consideration for Ex.B.56 and Ex.B.73 was paid from out of
the income derived from the nucleus of the Hindu joint family properties of late
Punnavana Nadar.
11(b)The plaint schedule Item No.10 is a house in T.S.No.329/18 New
No.3193 to 96 Block No.68 at Devarajan Street, Thriumgal Nagar, Pangajam Colony,
in Madurai Town. According to D.W.1 (D2), Item No.10 was purchased by his wife
on 15.03.1979 for Rs.45,000/- under Ex.B.114-sale deed. Corporation tax was
levied on her under Ex.B.115, Ex.B.116 and Ex.B.117. Under Ex.B.118 to Ex.B.120
three separate electricity meter connections were obtained to the meter
installed in the said property. Exs.B.121 to 123 are the electricity
consumption charges for those meters. Under Ex.B.124 water charge for the said
property has been paid by D2’s wife D3. There is also no material placed before
the trial Court to show that the sale consideration for Ex.B.114-sale deed was
paid from out of the joint nucleus of the Hindu joint family of late Punnavana
Nadar.
11(c)Item No.11 to the plaint schedule was purchased under Ex.B.38-sale
deed dated 11.12.1974 in favour of P.Velayutham (D2). Under Ex.B.191 water
connection was also given in the name of D2.
11(d)Item No.13 to the plaint schedule is a building bearing Door NO.41 in
TNS.467 of Madurai town. D.W.5 (D5 – Ramarajan in his evidence would admit that
Item No.13 to the plaint schedule was purchased in his name by his brother D2
and that subsequently he had sold the plaint schedule Item No.13 in favour of
Kumaravel (D4) under sale deed dated 23.12.1992. D.W.1 (D2) would depose that
Item No.13 was purchased by him in the name of his brother Ramarajan (D5) under
Ex.B.40-sale deed. Under Ex.B.153, D4 had paid land tax for plaint schedule
Item Nos.12 & 13. D5 in turn had executed Ex.B.199-sale deed dated 23.12.1992
in favour of D4 in respect of plaint schedule Item No.13. There is absolutely
no material placed before the trial Court to show that Item No.13 was purchased
from out of the income derived from the joint family properties of late
Punnavana Nadar.
11(e) As far as plaint schedule item Nos.14 to 17 are concerned the
defendants have no dispute as to the fact that they belong to the Hindu joint
family of late Punnavana Nadar along with the plaint schedule Item No.1.
11(f)The learned counsel appearing for the respondents relying on AIR 2007
Supreme Court 218 (Appasaheb Peerappa Chandgade Vs. Devendra Peerappa Chandgade
& others) would contend that the burden of proof is heavily on the plaintiffs
who have approached the Court for partition of the plaint schedule properties
claiming that the properties are joint family properties. The exact observation
in the above said ratio of the Honourable Apex Court is as follows:-
“So far the legal proposition is concerned, there is no gainsaying that
whenever a suit for partition and determination of share and possession thereof
is filed, then the initial burden is on the plaintiff to show that the entire
property was a joint Hindu family property and after initial discharge of the
burden, it shifts on the defendants to show that the proeprty claimed by them
was not purchased out of the joint family nucleus andit was purchased
independent of them. This settled proposition emerges from various decisions of
this Court right from 1954 onwards.
In the case of Srinivas Krishnarao Kango V. Narayan Devji Kango & Ors,
reported in AIR 1954 SC 379, there Lordships held that proof of the existence of
a joint family does not lead to the presumption that property held by any member
of the family is joint, and the burden rests upon anyone asserting that any item
of property was joint to establish the fact. But where it is established that
the family possessed some joint property which from its nature and relative
value may have formed the nucleus from which the property in question may have
been acquired, the burden shifts to the party alleging self-acquisition to
establish affirmatively that the property was acquired without the aid of the
joint family property. Therefore, so far as the proposition of law is concerned,
the initial burden is on the person who claims that is was joint family property
but after initial discharge of the burden, it shifts to the property who claims
that the property has been purchased by him through his own source and not from
the join family nucleus. Same proposition has been followed in the case of
Mst.Rukhmabai Vs. Lala Laxminarayan & Ors, report in AIR 1960 SC 335 wherein it
was observed as follows:-
“There is a presumption in Hindu Law that family is joint. There can be a
division in status among the members of a joint Hindu family by definement of
shares which is technically called “division of status”. Or an actual division
among them by allotment of specific property to each one of them which is
described as “division by metes and bounds”. A member need not receive any
share in the joint estate but may renounce his interest therein; his
renunciation merely extinguishes his interest in the estate but does not affect
that status of the remaining members vis-a-vis the family property. A division
in status can be effected by an unambiguous declaration to become divided from
the others and that intention can be expressed by any process. Though prima
facie a document clearly expressing the intention to divide brings about a
division in status, it is open to a party to prove that the said document was a
sham or a nominal one not intended to be acted upon but was conceived and
executed for an ulterior purpose. But there is no presumption that any
property, whether moveable or immoveable, held by a member of a joint Hindu
family, is joint family property. The burden lies upon the person who asserts
that a particular property is joint family property to establish that fact. But
if he proves that there was sufficient joint family nucleus from and out of
which the said property could have been acquired, the burden shifts to the
member of the family setting up the claim that it is his personal property to
establish that the said property has been acquired without any assistance from
the joint family property.”
Similarly, in the case of Achuthan Nair Vs. Chinnammu Amma & Ors, reported in
AIR 1966 SC 411, their Lordships held as follows:-
“Under Hindu Law, when a property stands in the name of a member of a joint
family, it is incumbent upon those asserting that it is a joint family property
to establish it. When it proved or admitted that a family possessed sufficient
nucleus with the adi of which the member might have made the acquisition, the
law raises a presumption that it is a joint family property and the onus is
shifted to the individual member to establish that the property was acquired by
him without the aid of the said nucleus. This is a well settled proposition of
law”.
Similarly, in the case of Bhagwant P.Sulakhe Vs. Digambar Gopal Sulakhe & Ors.
Reported in AIR 1986 SC 79, their Lordships have held that the character of any
joint family proeprty does not change with the severance of the status of the
joint family and a joint family property continues to retain its joint family
character so long as the joint family property is in existence and is not
partitioned amongst the co-sharers. By a unilateral act it is not open to any
member of the joint family to covert any joint family property into his personal
property.
In the case of Surendra Kumar Vs. Phoolchand (dead) through LRs & Anr,
reported in (1996)2 SCC 491 their Lordships held as follows:-
“It is no doubt true that there is no presumption that a family because it
is joint possessed joint property and therefore the person alleging that
property to be joint has to establish that the family was possessed of some
property with the income of which the property cold have been acquired. But
such a presumption is a presumption of fact which can be rebutted. But where it
is established or admitted that the family which possessed joint property which
from its nature and relative value may have formed sufficient nucleus from which
the property in question may have been acquired, the property and the burden
shifts to the party alleging self-acquisition to establish affirmatively that
the property was acquired without the aid of the joint family.”
Therefore, on survey of the aforesaid decisions what emerges is that there is no
presumption of a joint Hindu family but on the evidence if it is established
that the property was joint Hindu family property and the other properties were
acquired out of that nucleus, if the initial burden is discharged by the person
who claims joint Hindu family, then the burden shifts to the party alleging
self-acquisition to establish affirmatively that the property was acquired
without the aid of the joint family property by cogent and necessary evidence.”
in the case on hand, the plaintiffs have miserably failed to establish that the
plaint schedule properties except Item Nos.1 & 14 to 17 have been purchased by
the defendants only from out of the joint family nucleus. As I have already
referred to that Ex.A.13 to Ex.A.28 receipts for the sale by cotton and
chilies for the period from 1976 to 1983 to an amount about Rs.30,000/- is not
enough to derive us to come to a conclusion that the other properties which
stood in the name of the defendants also were purchased from out of the income
derived from the joint family properties. On the other hand, it is in evidence
that D2 had separated from the joint family even in the year 1964 and was
working as a teacher in various places till his marriage and after his marriage
with the help of his father-in-law who was a rice mill owner established another
rice mill and derived income from two rice mills and from out of the income
derived, D2 had purchased the other properties except Item Nos.1 & 14 to 17 to
the plaint schedule.
11(g)The relevant observation in the dictum in AIR 2003 KARNATAKA 245
(V.K.Thimmaiah and others Vs. Smt.V.K.Parvathi and others) relied on by the
learned counsel for the respondents is that:-
“Any properties acquired by the kartha of the joint family is presumed to
be the joint family properties. If any one of the co-parcener asserts and
claims that the property is his self acquired property the burden is on him to
prove that the said property is his self acquired property.”
11(h)Relying on AIR 2002 ORISSA 110 (Harihar Sethi and another Vs.
Ladukishore Sethi and Others), the learned counsel for the respondents would
contend that a Hindu, even if be joint, may possess separate property and such
property belongs exclusively to him. The exact observation on which the
reliance was placed by the learned Senior counsel for the respondents is as
follows:-
“However, it is no more res integra that a senior member of the family may
give up his right and a junior member of the family can act as Karta with
consent of all the other members. In the present case, the defendants who
putforth a claim that the plaintiff acted as Karta of the family, though he is
not the eldest member, have totally failed to prove the said fact by adducing
cogent evidence. In the absence of any evidence, it is not possible to accept
the contention raised by the appellants that the plaintiff, though he was not
the senior member of the family, acted as the Karta. The decision cited by the
appellants do not apply to the facts of the present case. Law as enumerated
under Article 222 of Mulla Hindu Law is well settled that a Hindu, even if be
joint, may possess separate property. Such property belongs exclusively to him.
No other member of the coparcenary not even his male issue, acquires any
interest in it by birth, and on his death intestate, it passes by succession to
his heirs, and not by survivorship to the surviving coparceners.
Also there can be no presumption that the family, because it is joint,
possesses joint properties. In a suit for partition a party who claims that a
particular item of property is joint family property, the burden of proving that
it is so, rests on the party asserting it.”
For the same proposition of law reliance was placed on the ratio in 1999(3) SCC
240 [Subramania Reddi (dead) Vs. Venkatasubba Reddi (dead) and others], wherein
it has been held by the Honourable Apex Court as follows:-
“The question of blending of properties was not considered by the High
Court on the basis that there was no such plea. The learned counsel for the
appellant relied upon B.Shah Vs. Presiding Officer, Labour Court, Coimbatore
1977(4) SCC 384 to submit that no specific plea of blending is required. We will
assume for the purpose of this case that this legal position is correct. Even
so, theresult will not be different because there is no evidence of blending of
separate property in the joint family property. Again the whole matter rests on
appreciation of evidence. When there are concurrent findings on the question of
fact we do not think we can reappreciate the same. Indeed the appellant wanted
that even properties inheritted by the first defendant under a Will should also
be included in the joint family properties and should be treated as having got
blended with other properties. We do not think such a course in permissible at
all and there was no reason for the first defendant to bring in the properties
inherited by him from his relations on his maternal side to blend with the
property of the joint family.”
11(i)The learned senior counsel appearing for the respondents also relied
on AIR 2002 MADRAS 402 (P.M.Mani Vs. P.S.Mohankumar and others) for the same
point, on the following observations:-
“When a person claiming that a particular property was ancestral or it
belonged to the joint family, the burden of proving the same lies on him. He
must show initially that there was sufficient nucleus. A presumption that a
property in the hands of an individual coparcener was joint family property can
be drawn only if it is shown that there was a nucleus of the joint family
property, from which it might fairly be said to have grown. If such nucleus is
proved by sufficient evidence or admitted by the opposite party, only then, the
onus of proving separate acquisition on the coparcener alleging the same would
arise. In the instant case, a careful analysis of the evidence, both oral and
documentary would reveal that the plaintiffs have not discharged the burden of
proof, showing that the suit properties were ancestral properties.”
The other ratio on which reliance was placed by the learned senior counsel for
the respondents is 2002 (3) CTC 141 (M.Saminatha Vellalar and three others Vs.
Govindaraju and seven others), wherein a Devision Bench of this Court has held
as follows:-
“In G.Narayana Raju Vs. Chamaraju, AIR 1968 SC 1276, the Supreme Court has
reiterated the principle that it is well settled that there is no presumption
under Hindu Law that a business standing in the name of any member of the joint
family is a joint family business even if that member is the manager of the
joint family, and that unless it could be shown that the business in the hands
of the coparcener grew up with the assistance of the joint family property or
joint family funds or that the earnings of the business were blended with the
joint family estate, the business remains free and separate.
……………..
In Chattanatha Vs. Ramachandra, AIR 1955 SC 799, the Supreme Court has
held that under the Hindu Law, there is no presumption that a business standing
in the name of any member is a joint family one even when that member is the
manager of the family, and it makes no difference in this respect that the
manager is the father of the coparceners.
……………
In Ramayya Vs. Kolanda, AIR 1939 Mad. 911, a Division Bench of this Court
has held that in this case there is every reason for thinking that the
acquisitions by the brothers were as much the result of their own industry and
thrift as they were the natural product of the land itself, that the
acquisitions claimed represent savings extending over a fairly long period, that
yers after the allotment and years after the acquisition it is scarcely just or
equitable that the acquirer should be forced to share the product of his thrift
and industry with, it may be, an indolent or ease-loving coparcener, and that
there is no principle of Hindu law which tends to the perpetuation of such gross
injustice.
……………..
In Rathinam Vs. Thangasami Pillai, 1967 (I) MLJ 360, a Division Bench of
this Court held that mere proof of the existence of the joint family owning some
joint family property does not give rise to any presumptions and that it must be
established that the family possessed some joint property which from its very
nature and relative value may have formed the nucleus sufficient and adequate in
character so as to impress the acquisitions with the character of the joint
family property.”
11(j)The relevant observation on which the reliance was placed by the
learned senior counsel for the respondents in AIR 1969 SC 1076 (Mudigowda
Gowdappa Sankh and others Vs. Ramchandra Revgowda Sankh (dead) by his legal
representatives and another) is as follows:-
“There is no presumption that a Hindu family merely because it is joint,
possesses any joint property. The burden of proving that any particular
property is joint family property, is, therefore, in the first instance upon the
person who claims it as coparcenary property. But if the possession of a
nucleus of the joint family property is either admitted or proved, any
acquisition made by a member of the joint family is presumed to be joint family
property. This is however subject to the limitation that the joint family
property must be such as with its aid the property in question could have been
acquired. It is only after the possession of an adequate nucleus is shown, that
the onus shifts on to the person who claims the property as self-acquisition to
affirmatively make out that the property was acquired without any aid from the
family estate.”
The same principle was reiterated in 19995 (1) MLJ 336 (K.Sengodan Vs.
K.Dharmalingam and others), as follows:-
“The appellant’s attempt has been to shift the burden of proving that the
properties involved are the self-acquisitions of the defence. It can, however,
not be denied that the initial burden is only on the one who contends that the
property belongs to an undivided Hindu family, and only where the initial burden
is discharged by the one who is setting up such a claim, then the other side who
contends to the contrary be called upon to establish his case. The law on the
subject has never been in doubt. The appellant has failed to prove the
existence of such ancestral nucleus which by itself, is not sufficient but
availability of the ancestral nucleus or its adequacy of the same to fund the
later acquisitions, are also essential requisites for an answer in favour of his
contention.”
The learned senior counsel appearing for the respondents relying on 1994(4) SCC
294 (Kenchegowda Vs. Siddegowda) would contend that a suit for partial partition
when all the joint family properties not made the subject-mate of the suit nor
the co-sharers impleaded, is not maintainable. But as far as the case on hand
is concerned the defendants have not produced any material to show that some of
the joint family properties were left to be included for partition. The learned
senior counsel relying on Ex.X.1 would contend that in the plaint schedule Item
No.2 there is a rice mill put up by the 2nd defendant, but the same was not
included for partition, hence, the suit itself is bad for partial partition.
But in Ex.X.1 it is seen that from out of the property viz, ‘Vathiya Rice Mill’
the 2nd defendant shall take 60% and D5 shall take 25% and first appellate-
Ganesan shall take 15% of the total income. It is not the case of the parties
that there was denial of the agreed shares in the profits of the rice mill by
D2-Velayutham since there is already arrangement for sharing the profits from
the rice mill in plaint schedule item No.2 viz., ‘Vathiyar Rice Mill”. Point
No.1 is answered accordingly.
12.Point Nos.2 & 3:- With regard to Item No.9 and 12 of the plaint
schedule it is admitted case of D.W.1 that they belonged to his father Punnavana
Nadar, who had executed a Will dated 19.10.1983 in favour of his son Kumaravel
(D4) and that in pursuance of the said Will patta has been transferred in favour
of his son D4 under Ex.B.141 and a portion of the property in Item No.9 was
acquired by the Government for the formation of Ring Road and the Tahsildar had
also issued notice under Ex.B.142 to his son to receive the compensation and
Ex.B.143 is another notice calling upon him to attend the enquiry and Ex.B.144
is the enquiry proceedings of the Tahsildar and Ex.B.145 is the award passed in
the Land acquisition proceedings and the compensation was fixed as Rs.180/- per
cent and that he had filed LAOP.No.74/1993 for enhancement of the compensation
in which a judgment was passed under Ex.B.146. But a perusal of Ex.B.146 will
go to show that the claimant viz., Kumaravel (D4) has not claimed that the
acquired land belonged to him under the alleged Will executed by Punnavana
Nadar. It is the case of the respondents – defendants that the Will dated
19.10.1983 was produced before the Tahsildar, Madurai City, for obtaining patta
in the name of D4. But the said Will was not get back from the said Tahsildar.
D.W.1 (D2) would admit in his evidence that the said Will was an unregistered
one. The said Tahsildar was examined as D.W.2 – Narayanan. He would admit that
he had issued Ex.B.141 – patta in favour of D4. But a perusal of Ex.B.141 –
patta will go to show that patta for Item No.9 alone was granted for item No.12,
which is in TS.No.552/1. Further, D.W.1 (D2) would also admit in his evidence
that against the order passed in LAOP.No.74 of 1993 under Ex.B.146 there is an
appeal pending before this Court. For Item No.12 D2 has also produced
Ex.B.151 for change of mutation in favour of D4 and Ex.B.152 is the tax receipt
for Item No.12 and urban land tax is also Ex.B.153. He would further contend
that his son D4 had executed Ex.B.155 and Ex.B.156, settlement documents in
respect of Item Nos.9 and 12 respectively executed by D4 in favour of him.
Ex.B.158 and Ex.B.159 are the tax receipts. In Ex.B.157 is the order of the
Tahsildar for effecting mutation in respect of Item Nos.9 and 12 in favour of
D2. But it is the definite case of D2 that the plaint schedule Item Nos.9 and
12 originally belonged to Punnavana Nadar and that he had bequeathed the plaint
schedule item Nos.9 & 12 under the sale deed dated 19.10.1983 in favour of D4.
But the said Will was not produced before the trial Court. An attempt was made
by the defendants to mark a xerox copy of the alleged Will through D.W.2-
Narayanan. But the said xerox copy of the Will was not exhibited before the
trial Court by the learned trial Judge since it was objected to by the other
side. But a reading of the cross-examination of D.W.1 throws no details on the
alleged Will. Further, D.W.2 is not competent to issue any xerox copy for a
Will. D.W.2 has also not stated in his evidence who are all the attestors to
the alleged Will. D.W.6-Kumaravel (D4), who is the son of D2, has deposed that
his grand-father Punnavana Nadar had executed a Will in respect of Item Nos.9
and 12 in favour of him. But he has also not stated who are all the attestors
to the alleged Will. D.W.5 -P.Ramaraj (D5) has not deposed in the chief-
examination that he has attested the alleged Will executed by Punnavana Nadar.
But he would state in the chief-examintion that he knows about the execution of
the alleged Will in respect of the plaint schedule Item Nos.9 & 12 executed by
his father Punnavana Nadar on 19.10.1983. Only in the cross-examination of D2
to D4 he would depose that his father Punnavana Nadar had executed the Will on
19.10.1983 and the scribe of the Will is one Natarajan Pillai. But the said
Natarajan Pillai was not examined as a witness on the side of the defendants.
Except the ipsi-dixit of D.W.5 there is absolutely no evidence to prove that a
Will was executed by Punnavana Nadar in favour of D4. Under Section 68 of the
Indian Evidence Act, the Will is to be proved atleast by examining one of the
attestors to the Will. Here absolutely there is no evidence to show who are all
the attestors to the said Will. It is in evidence that the said Will was
destroyed by the revenue officials as seen from Ex.B.201. Even in Ex.B.201
there is no specific averment that the alleged Will was destroyed. Only in
Ex.B.200 there is a reference in the enclosure for the return of the document
and there is a mention about the Will. So it cannot be said that plaint
schedule item Nos.9 & 12 are the exclusive properties of D4 or D2 sine the
alleged Will in favour of D4 was not proved as required under Section 68 of the
Indian Evidence Act, it is to be presumed that Item Nos.9 & 12 are the joint
family properties of late Punnavana Nadar. Hence, I hold on Point Nos.2 & 3
that the plaintiffs are entitled to 2/6th share in the plaint schedule Item
Nos.9 & 12 also along with Item Nos.1 & 14 to 17.
13.Point No.4:- In view of my findings and discussions in the earlier
paragraphs I hold on Point No.4 that the appeal is to be allowed and the decree
and Judgment of the learned trial Judge in O.S.No.160 of 1995 is to be modified.
14.In fine, the appeal is allowed and the decree and Judgment of the
learned trial Judge in O.S.No.160 of 1995 on the file of the Court of
Subordinate Judge, Srivilliputtur, is modified as follows:- The plaintiffs are
entitled to 2/6th share in plaint schedule item Nos.1, 9, 12 & 14 to 17 and D5
is also entitled to 1/6th share in the above said properties. Preliminary Decree
is passed to that effect. In respect of other items in the plaint schedule
properties, the appeal is dismissed, thereby confirming the findings of the
learned trial judge. No costs. Connected Petitions are closed.
ssv
To,
The Subordinate Judge, Srivilliputtur.