JUDGMENT
V. Kanagaraj, J.
1. The above appeal suit is directed against the judgment and decree dated 30.9.1987 made in O.S.No. 271 of 1983 by the Court of Subordinate Judge, Coimbatore, thereby partly allowing the suit instituted by the first respondent herein against the appellants and 40 others, for partition of all the suit properties falling under three items and allotting her 1/7th share in the suit properties and putting her in separate possession of such divided share and for costs.
2. The plaint averments of the suit as framed by the first respondent herein in the trial court are that the plaintiff’s father was one Krishnaswamy Naidu and her mother is the first defendant and defendants 2 to 4 are her brothers and defendants 5 and 6 are her sisters; that the suit properties were the self-acquired properties of her father, who died intestate on 18.9.1966 leaving behind him herself and defendants 1 to 6 as his legal heirs; that the plaintiff and defendants 1 to 6 are in common enjoyment of the suit schedule of properties, without any division and in the year 1978, quarrel arose among sharers to that extent as to become incapable of enjoying the suit properties in common any more. But the defendants 1 to 4 with the able assistance of defendants 5 and 6 and without the knowledge of the plaintiff held a partition among themselves and the same is not binding on the plaintiff and the defendants 1 to 4 have transferred the land portion to defendants 7 to 44 and those transfers are by way of sham and nominal sales effected in the years 1981 and 1982 and this has been done without the knowledge or notice to the plaintiff, who is entitled to a definite 1/7th share in the entire suit properties, and as such the partition and the sale held by defendants 1 to 6 are invalid and hence the suit.
3. The suit properties as given in the schedule under ‘description of properties’ are in three items. The first item of the suit properties is a fertile land falling under two survey numbers extending to Ac.2.10 cents; the second item of the suit schedule of properties is a house constructed in a site measuring Ac.O.07 cents, the constructed portion measuring 1980 sq.ft. and the third item of the suit properties is a dry land falling under two survey numbers totally measuring Ac.9.47 cents with all appurtenances, ease mentary and other rights.
4. In the written statement filed by the defendants 1 to 4, they have pleaded to the effect that it is false to say that the suit properties were the self-acquired properties of late Krishnaswamy Naidu-father of plaintiff and defendants 2 to 6 and husband of the first defendant; that the grand father of plaintiff and defendants 2 to 6 Rangaswamy Naidu had two sons i.e., Krishnaswamy Naidu and another Narayanaswamy Naidu and yet another daughter; that the said Rangaswamy Naidu passed away in the year 1948; that the said Rangaswamy Naidu purchased all the properties either in his name or in the name of his elder son Krishnaswamy Naidu and the said Rangaswamy Naidu conducted the marriage of his sons and daughter and the daughter lost her husband in a year or two after her marriage and thereafter she was living with her father. It is further contended that the second son of Rangaswamy i.e., Narayanaswamy Naidu was demanding partition of the properties from Rangaswamy Naidu and started agitating against his father and even attempted to commit patricide; that the said Narayanaswamy did not like his sister living with their father; that since Narayanaswamy was issueless, Rangaswamy thought it fit to give all his properties to the male descendants of his family and started buying properties in the name of his elder son Krishnaswamy Naidu, the consideration having been paid by Rangaswamy Naidu for whom there were the self-acquisitions; that neither the sons nor the daughter of Rangaswamy have got any right over the properties acquired by Rangaswamy since they were all his self-acquisitions; that in fact, the de-ceased-Rangaswamy also executed a will in respect of the properties that are standing in his name to be inherited by the male descendants of his family; that though the properties stood in the name of Krishnaswamy Naidu, the real owner was Rangaswamy Naidu; hence, the properties are not ancestral in character; that the second son of Rangaswamy namely Narayanaswamy had also executed a release deed, thereby relinquishing all his rights in the properties in favour of the defendants 2 to 4, in respect of some other family properties and since one Kondaswamy, to whom Rangaswamy advanced a loan, was not able to ‘repay the said loan, he sold the property in favour of Rangaswamy in item No. 1 of the suit properties, treating the loan as the sale consideration; that however, a sale deed was got in the name of Krishnaswamy and hence they are ancestral and not the self-acquisitions of Krishnaswamy Naidu, so also item No. 2 of the suit properties and hence the female descendants have no right over the properties.
5. According to these defendants, krishnaswamy Naidu, his father-Rangaswamy and brother-Narayanaswamy are each entitled to 1/3rd share in the suit properties and the co-sharer Narayanaswamy also executed a release deed in favour of defendants 2 to 4 and thus they became entitled to 2/3 rd share of the suit properties and in the remaining 1/3rd share, these defendants to 4, plaintiff and defendants 5 and 6 would become entitled equally according to Law and hence the share claimed by the plaintiff is not correct; that since the plaintiff and defendants 5 and 6, after marriage are living separately with their husbands, they maintained no connection whatsoever with the family and never exercised any right of any kind much less being in possession of the suit properties and since the plaintiff never exercised any right over the suit property, even if there is any right, it is lost by the ‘doctrine of ouster’ and is not entitled to claim any right; that neither the plaintiff nor the defendants 5 and 6 have got any right to question the validity of the partition deed, held between themselves; that the defendants 31 to 47 are not the purchasers from these defendants and hence the suit is bad for mis-joinder of parties; that the suit is nothing short of a blackmail in order to extract money from these defendants; that there is no cause of action for the suit and hence these defendants would ultimately pray for dismissing the suit, with costs.
6. In the additional written statement filed by the third defendant and adopted by defendants 1,2 and 4 it is alleged that under a will executed by Rangaswamy, he bequeathed various items including the second item of the suit properties and as per the terms of the will, the properties are to be enjoyed by the male children for their lifetime and thereafter the male grand children alone should inherit the properties and hence in the light of the said will, the plaintiff cannot claim any share at all, further repeating that in the third item also, the plaintiff cannot claim any property; that at the time of the marriage of her daughter, the plaintiff was given a sum of Rs. 5,000 and at the time of marriage of her son a sum of Rs. 3,000 was provided with and she has not repaid that amount.
7. The defendants 5 and 6 in their written statements also claimed 1/7th share in all the suit properties, very like the plaintiff, thereby alleging that all the suit properties were the self-acquired properties of late Krishnaswamy Naidu.
8. In their written statement, the defendants 13, 15,19 and 22 would deny the claim of the plaintiff and would put the plaintiff in proof of her claim and her entitlement to the 1/7th share in the suit properties; that the division held in the suit properties among the defendants 1 to 4 is legal; that these defendants bona fide purchased some of the suit properties and even in the event of deciding that the plaintiff is entitled to a share, since those properties are purchased for value, provision should be made for those properties to fall to the share of defendants 1 to 4, from whom these defendants have purchased the properties and would pray for dismissing the suit.
9. The 14th defendant in his written statement would plead that he has purchased Ac.0.05 1/2 cents of land from the defendants 1 to 4 comprised in item No. l of the suit properties by means of a registered sale deed dated 2.6.1981 and after purchasing the said properties, by spending one lakh rupees he constructed a building in it and would pray for allotting that property to the share of defendants 1 to 4 in case the court comes to the conclusion that the plaintiff would become entitled to a share in the suit properties.
10. In the written statement filed by the 44th defendant, he would contend that he purchased a portion of the first item of suit properties on 2.6.1981 from defendants 2 to 4 and it was a bona fide purchase for value and hence provision should be made for this property to be allotted to him.
11. In the reply statement, besides denying the averments of the defendants 1 to 4 pleaded in their written statement, it would be asserted by the plaintiff that the suit properties were the self-acquired properties of late Krishnaswamy; that there was no difference of opinion between Rangaswamy Naidu and Narayanaswamy and that the plaintiff will put these defendants in proof of such allegations. She would specifically deny as false allegation that the plaintiff is entitled to 1/3 rd share along with defendants 5 and 6 further denying that she got separated from the family after the marriage and was not in possession of the suit properties etc. The plaintiff will account for her residence with her husband only at Coimbatore, thereby repeating the said allegation as false. Likewise, she would also deny the allegations of the defendants 13, 14, 15, 19, 22 and 44 further putting these defendants also to strict proof of their contentions. She would further allege that prior to the purchase of the properties, they ought to have scrutinized the title deeds hence they are not entitled to any relief, branding further the sale executed in their favour is in no manner binding on the plaintiff.
12. Based on the above pleadings, the trial court framing 8 issues for determination pertaining to all the questions raised in the whole of the suit, has ordered for the trial, in which, on the part of the plaintiff, she got into the box as P.W.I and has deposed to the effect of the suit filed by her and the relief sought for and on the part of the defence, the first defendant has testified as D.W.I, the second defendant as D.W 2 and the defendant No. 14 one of the purchasers of a bit of property from the defendants 1 to 4 as D.W.3 for oral evidence. For documentary evidence, on the part of the plaintiff, 10 documents have been marked as Exs.A-1 to A-10, Ex.A-1 being the sale deed dated 18.7.1940 executed by one Kondaswamy in favour of Krishnaswamy; Ex. A-2 being the sale deed dated 22.3.1934 executed in favour of Krishnaswamy by Rangaswamy; Ex.A-3 being the paper publication dated 26.5.1982 by the plaintiff’s lawyer effected in ‘Maalai Murasu’; Ex.A-4 being the publication effected in ‘The Hindu’ dated 20.3.1987, Ex.A-5 being the notice dated 26.8.1984 issued by the Tahsildar, Coimbatore to the plaintiff and Ex.A-6 dated 3.9.1986 is the reply by the plaintiff to Ex.A-5; Ex.A-7 being the acknowledgment dated 8.9.1986 for receipt of Ex.A-6, Ex.A-8 being the sale deed dated 14.9.1925 registered in favour of Rangaswamy Naidu; that Ex.A-9 dated 4.6.1986 being the encumbrance certificate and Ex.A-10 dated 6.4.1930 is the mortgage deed executed by Rangaswamy in favour of Kondaswamy.
13. So far as the defendants’ exhibits are concerned they are 8 in number in Exhibit ‘B’ series’ Ex.B-1 is the Will dated 26.3.1934 executed by Rangaswamy in favour of Krishnaswamy and others; Ex.B-2 dated 22.3.1934 is the sale deed executed by Rangaswamy in favour of Krishnaswamy Ex.B-3 is the rent receipt dated 7.9.1929; Ex.B-4 is the rent receipt dated 24.4.1933 issued by Rangaswamy in favour of Kondaswamy; Ex.B-5 is the sale deed dated 18.7.1940 executed by Kondaswamy in favour of Krishnaswamy; Ex.B-6 is the letter dated 12.6.1984 written by one Kanchana to the third defendant; Ex.B-7 is the partition deed dated 12.9.1979 effected in between defendants 1 to 4 and Ex.B-8 is the sale deed dated 2.6.1981 executed in favour of the 14th defendant.
14. The trial court in consideration of the above evidence, in the context of the pleadings by parties and appreciating the evidence placed on record, has ultimately arrived at the conclusion to decree the suit passing a preliminary decree directing the partition of item numbers 1 and 3 of the suit schedule and allotting 1/7th share to the plaintiff and to each of the defendants 5 and 6 in the same ratio and putting them in separate possession of such divided shares in the suit properties; further providing for appointment of a Commissioner to execute the same and rejecting the other contentions of the plaintiff.
15. It is only challenging the said decree and judgment, as passed by the trial court, the appellants/defendants 1 to 4 have come forward to prefer the above appeal on grounds such as, (1) that the evidence placed on record clearly establish that all the properties were purchased by Rangaswamy in his name as well as in the name of his elder son Krishnaswamy Naidu and as such the suit properties are the joint family properties; (2) that the court below failed to see that since Rangaswamy was not satisfied with the conduct of his second son Narayanaswamy, who was issueless, decided to give the properties to the male descendants of his family and hence purchased some of the suit properties in the name of Krishnaswamy; (3) that the court below failed to see that the Will executed by Rangaswamy is revealing his intention that the properties should be inherited by the male descendants of the family; (4) that the court below failed to see that even the properties are standing in the name of Krishnaswamy, the real owner is only his father Rangaswamy and therefore they are the joint family properties; (5) that the court below further failed to see that the loan due to Rangaswamy was not paid by Kondaswamy and due to that, the property was sold by Kondaswamy in favour of Krishnaswamy as desired by Rangaswamy and hence it is revealed that the properties though stand in the name of Krishnaswamy are only the properties of Rangaswamy and therefore they are ancestral in ‘character; that since the intention of Rangaswamy was that the properties should be inherited by the male descendants, the said intention has been revealed by the subsequent conduct of parties, as such, neither the plaintiff nor the defendants 5 and 6 have any right over the suit properties; (6) that the court below has failed to appreciate and apply the principle* of Law regarding the ancestral and joint family properties to the facts of the case; (7) that the reasons assigned by the lower court for up-holding the claim of the plaintiff are palpably wrong, both in Law and facts; (8) that the court below has failed- to see that in any event, the plaintiff along with the defendants can claim a share from only 1/3rd share of the suit properties; (9) that the lower court failed to see that the daughters of the said Krishnaswamy Naidu never exercised any right over the property and it could not be held that they are in joint possession of the same, and (10) that the lower court has failed to see that the rights, if any, for the daughters of Krishnaswamy Naidu over the suit properties have been lost by the ‘doctrine of ouster’, thus becoming disentitled to claim any share to the suit properties.
16. During arguments, the learned Senior Counsel S.V. Jayaraman, appearing for the appellants/ defendants 1 to 4, would submit that though the plaintiff cannot deny her share, it all depends on the fact whether the properties are separate properties or the joint family properties of Krishnaswamy and whether she is entitled to 1/ 7th share from all the suit properties or 1/28th share; that there are three items in the suit properties, first item being the landed property measuring Ac.2.10 cents; the second item being the house property constructed in a site measuring 7 cents and the constructed area being 1980 sq.ft. and the third item being the landed property measuring Ac.9.47 cents, which is the subject matter of the land acquisition proceedings; that the trial court granted the decree in respect of items 1 and 3 and part of item No. 2 in all giving the 1/7th share in favour of the plaintiff and defendants 5 and 6 against which the appellants/ defendants 1 to 4 have preferred the above appeal, but the same conclusion could be arrived at only in determining whether those properties are the self-acquired properties of the father of the plaintiff and defendants 2 to 6 and husband of the first defendant namely Krishnaswamy Naidu or the joint family properties.
17. Citing from the reply statement, pleadings of the plaint and the written statements of the contesting defendants, the learned senior counsel would continue to argue that the general presumption is that the family is a joint family, but it does not extend to properties also; that we cannot presume that the properties are joint family properties, such presumptions become operative, if only it is shown that the family had joint nucleus with the help of which, they could have purchased in the name of any member of the joint family; that therefore, in this particular case, the appellants have to prove that the plaintiff’s grand-father had properties and at the time of relevant purchases who was actually managing the properties.
18. Continuing to argue, the learned senior counsel would point out with reference to the existence of the joint family properties and further as to who was in management and would contend that it was naturally the son Krishnaswamy; that properties purchased by the Manager could be construed as joint family properties and the burden to establish that without the joint family funds, the said Krishnaswamy Naidu had independent source to purchase the properties; that there is no proof that he had any independent source of nucleus to purchase these items, therefore, the primary aspect that the grand-father had no property at all should also be established. It would further be argued by the learned Senior Counsel that including the name of Krishnaswamy in the presence of the second son-Narayanaswamy by the father-Rangaswamy would show that the father wanted to purchase the properties in the name of the first son namely Krishnaswamy the father of the plaintiff and defendants 2 to 6 and husband of the first defendant; that since Rangaswamy sold item Nos.2 and 3 of the suit properties to his first son Krishnaswamy, the existence of the properties in the hands of Rangaswamy is not to be doubted; that to ward off the claim by the second son Narayanaswamy, Ex.B-2 sale deed had been executed by the said Rangaswamy in favour of Krishnaswamy; the other documentary evidence in support of the contentions of the appellants is that the said Rangaswamy had properties as seen in Ex.B-1 i.e., the Will dated 26.3.1934 executed by Rangaswamy in favour of Krishnaswamy and others; that apart from the properties mentioned in Exs.B-1 and B-2, he has also sold some items other than what is contained in Ex.B-1 and therefore, these two documents are sufficient to prove the existence of the joint family property in the hands of the plaintiff’s grand father; hence, it is not as if Krishnaswamy did not have any ancestral properties. As such, when suit properties namely item numbers 1 to 3 were purchased by Krishnaswamy Naidu, it shows that he had nucleus of joint family in his hands as the Manager, in which event, the burden is on the plaintiff to prove that Krishnaswamy purchased the properties from out of his funds.
19. The further case of the appellant is that one of the items had been purchased in the name of Krishnaswamy by his father Rangaswamy from one Kondawami; that in spite of Rangaswamy purchasing the property, he directed the vendor to execute the sale deed in favour of Krishnaswamy; that due to the misunderstanding between the father and the second son, the father Rangaswamy purchased the properties in the name of his first son Krishnaswamy; that the properties in Ex.A-1 were sold in the year 1940 for Rs. 1,500 and the properties in Ex.A-2 were sold on 23.3.1934 for Rs. 2,500 that all the witnesses admit that Krishnaswamy was in management of the property, but not the said Rangaswamy, thus, the property was purchased by Krishnaswamy, in the capacity of Manager of the family only and therefore the presumption arises that these properties are also the joint family properties. The learned Counsel would then point out that except the evidence of P.W.1, there is no other evidence in support of her case, about the capacity of Krishnaswamy to purchase the properties that D.W.1 wife of Krishnaswamy is the competent person to speak about all those things and the learned Counsel would cite the evidence on record i.e., Ex.B-3. The learned Counsel would end up his argument saying that Krishnaswamy along with his three sons-defendants 2 to 4 will have only 1/4th share in all the properties and therefore the plaintiff will be entitled to 1/7th share in the 1/4th share of Krishnaswamy and not 1/7th share in all as it is claimed by the plaintiff.
20. In reply, Mr. Sarvabhauman, the learned senior counsel appearing for the respondents 1 to 3 would submit that regarding the properties of Rangaswamy, he had willed away all his properties some of which were ancestral for him and the others are self-acquired; building the case on the pleadings that since Krishnaswamy Naidu was a co-parcener, regarding the so-called joint family properties, the presumption that he acted as the Manager of the family properties does not arise; that Rangaswamy made specific recitals in Ex.B-1 will with reference to the properties purchased by him and his son-Krishnaswamy that item No. 2 of the suit properties has been shown in Ex.B-1 and even according to Rangaswamy, they were treated separately; that the story spoken about in para No. 7 of the written statement filed by the defendants 1 to 4 is directly and diametrically opposed to the real situation, wherein the father, even according to him, wanted to separate the two sons; that the whole case has to be looked into from the angle that the father-Rangaswamy did not take anything; that the suit properties were purchased in the years 1934 and 1950 and the defendants 1 to 4 have not pleaded for what purpose Krishnaswamy Naidu was the Manager of the family during the lifetime of his father Rangaswamy and therefore the presumption that they were joint family properties cannot arise at all; that normally, the father being the head of the family would be the Manager and he died only in 1948 and while so, the junior co-parcener Krishnaswamy Naidu acting as the Manager of the family in the presence of their father Rangaswamy Naidu, who is the senior coparcener and head of the family holds no water and there was no pleading to that effect by the defendants 1 to 4 and hence there is no reason to form the presumption.
21. The learned senior counsel would then question as to how the father would reconcile with the effect to avoid the other son-Narayanaswamy, while the father was purchasing the properties in the name of one son and that pleading is not put forward and hence the lower court has held against such proposition; that D-1 to D-4 have entered into an invalid partition deed under Ex.B-7, ignoring the plaintiff and the defendants 5 and 6, who are not parties to the partition deed; that there is absolutely no question of ancestral nucleus or acting as the Manager and that the properties belonged to Krishnaswamy; that the property in item number 2 of the suit schedule of properties has been purchased by Krisrmasvvamy Naidu from his father Rangaswamy under Ex.A-2. The learned Counsel would then point out from the evidence of D.W.2, who admitted the contents of Exs.B-2 and B-5. He would further argue that so far as the motive created on the part of the defendants 1 to 4 is concerned, it has not been established at all; that Rangaswamy Naidu is an attestor of Ex.B-5, which is a document of the year 1940; that in Ex.B-1 Will, in the description of property, the property belonging to Krishnaswamy is shown as the boundary that is item No. 2 obtained under Ex.B-2; that in the partition deed under Ex.B-7, executed in between defendants 1 to 4, ignoring the plaintiff and the defendants 5 and 6, the mother has joined the sons to fight against the daughters; that the arguments of the other side and the deposition of D.W.1 are all false; that in Ex.B-7, it has been termed as ‘Pidru Rajyam’, as though belonging to both father and grand father. The learned Counsel would also point out from the evidence of D.W.2 saying that the suit properties have nothing to do with Narayanaswamy; that the release of Narayanaswamy is only with reference to the properties of Rangaswamy and not with reference to the properties of Krishnaswamy and that the suit properties are properties of Krishnaswamy either by purchase under Exs.B-2 and B-5 or under Ex.B-1.
22. The learned senior counsel would then argue that even regarding possession, D.W.2 has admitted that the suit properties were in possession of Krishnaswamy Naidu till his death; that the lower court makes a correct assessment so far as Exs.B-2 and B-5 are concerned and would read out the relevant passage from the judgment of the lower court from paragraphs 30, 32, 33 and 36; that the younger brother of Krishnaswamy namely Narayanaswamy died in the year 1978 and he never had any claim till his death and the learned Counsel would further contend that human conduct is effective and would ask then where is the question of these properties being treated as the joint family properties?
23. Having regard to the facts and circumstances of the case, the following points arise for determination of the appeal:
1. Whether there is any joint family nucleus forming the basis of the suit properties proved in evidence, so as to treat the suit properties as properties of the Hindu joint family?
2. Whether the first respondent/plaintiff is entitled to 1/7th share in item Nos.1 and 3 and 1/7th share in a portion of the item No. 2 of the suit properties, as decided by the lower court?
3. Whether the lower court is right in deciding that the plaintiff and defendants 1 to 6 are each entitled to 1/7th share in item Nos. 1 and 3 and in a portion of the item No. 2 of the suit properties?
4. What relief, if any, the appellants are entitled to?
24. Point Nos. 1 and 2: Prior to entering to answer this point, it is relevant to state here that it is a family dispute among brothers and sisters, wherein the plaintiff is one of the sisters, first defendant is her mother, the defendants 2 to 4 as arrayed in the plaintiff are her brothers and defendants 5 and 6 are her sisters. The suit is for partition of the suit properties into seven equal shares and to allot One such divided share in favour of the plaintiff and put her in separate possession of the same, thereby praying to pass a preliminary decree, further making a provision to appoint a commission to divide the suit properties and allot the respective shares of the parties, according to their rights declared. The lower court has almost granted the relief of the plaintiff as sought for excepting to curtail the 1/ 7th share in the second schedule of the suit properties for the plaintiff and 5th and 6th defendant from only a portion of it and not from the entire 2nd schedule. From out of the long list of defendants, shown before the lower court, the first defendant is none other than the mother of the plaintiff and she joined hands with her sons defendants 2 to 4 and they all would speak in equal voice to the effect that the properties were ancestral in nature having joint family nucleus and only the defendants 1 to 4 are entitled to inherit and neither the plaintiff nor the defendants 5 and 6 the female children born for the deceased-Krishnaswamy and the first defendant-are not in any manner entitled to any share in the suit properties and under such circumstances, the defendants 1 to 4 among themselves would enter into a partition of the suit properties and would also sell away some of the suit properties in favour of different third parties, who are defendants 7 to 44, out of whom defendants 13, 14, 15, 19, 22 and 44 are the contesting defendants the rest of them having been set ex parte by the lower court.
25. In short, the case of the plaintiff is that the suit properties were the self-acquired properties of her father deceased- Krishnaswamy and since he died intestate on 18.9.1966, the first defendant being his wife, defendants 2 to 4 being his sons, the plaintiff and defendants 5 and 6 being the daughters of the deceased-Krishnaswamy and the first defendant, they are all equally entitled to have equally share in the suit properties and hence the plaintiff is entitled to 1/7th share in the suit properties and would-pray for declaration to that effect and for partition of her 1/ 7th share in all the suit properties and to be put in separate possession of such divided 1/7th share of the suit properties.
26. On the contrary, the contentions of the defendants 1 to 4 are many fold, out of which the main contention is that the suit properties are not the self-acquired properties of deceased-Krishnaswamy, but they are joint family properties, in the sense that it was Rangaswamy, who is the father of Krishnaswamy, who purchased the suit properties not only in his name but also in the name of his elder son Krishnaswamy since he was ill-disposed of with his second son Narayanaswamy as found in Exs.B-2 and B-5, by paying the sale consideration from out of his pocket and that the said Krishnaswamy did not have the capacity to acquire the suit properties on his own. The defendants would further contended that since the properties are having the joint family nucleus and since Krishnaswamy was only acting as the Manager of the joint family, he would not have become entitled to more than 1/3 rd share in the whole of the suit properties, thus sharing along with his father-Rangaswamy and his younger brother Narayanaswamy and Krishnaswamy along with his three sons-defendants 2 to 4 will have only 1/4th share in all the suit properties and therefore the plaintiff will be entitled to l/7th share in the 1/4th share of Krishnaswamy and not 1/ 7th share in all as falsely claimed by the plaintiff.
27. The main argument advanced on the part of the appellants is that these properties have a joint nucleus from Rangaswamy and that the general presumption in such cases is that the family is joint and the properties would also extend to the joint family and the only condition for the presumption that it is a joint family that is to be proved on the part of the appellants is that the family had joint nucleus, with the help of which, they could have been purchased in the name of any one, much less Krishnaswamy. It is hence admitted on the part of the appellants that they have to prove that the grandfather Rangaswamy had properties with evidence to the existence of the joint family properties, coupled with the fact, as to who was the Manager of the joint family. It is their further case that the joint family nucleus existed in their grandfather Rangaswamy has properties with evidence to the existence of the joint family properties, coupled with the fact, as to who was the Manager of the joint family. It is their further case that the joint family nucleus existed in their grandfather Rangaswamy and he had the capacity to purchase many items of properties in his own name and in the name of Krishnaswamy the elder son of Rangaswamy as found in Exs.B-2 and B-3 and the rest of the suit properties were also not purchased by Krishnaswamy from out of his self earnings and hence they should be treated only as the joint family properties and in such event, the plaintiff is not entitled to get 1/7th share in all the suit properties, but only 1/7th share in the 1/4th share of Krishnaswamy.
28. Though the arguments advanced on the part of the learned senior counsel appearing for the appellants pertaining to the presumption of the joint family nucleus is true, it is settled that even such presumption cannot be all of a sudden form unless preliminarily the existence of the joint family and the joint family properties having everything in common, such as common abode, common meal and the Manager for the joint family etc., are proved. Fundamentally, it is a question that is to be solved, whether those basic requirements have been proved, so as to give way for such presumption to come into existence at all. It should be admitted that in proof of such factors, no adequate evidence has been made available on the part of the appellants and hence it should be held that such a presumption cannot at all be formed, especially as against the strong documentary evidence placed on record in the form of Exs.A-2 and B-2 dated 22 3.1934, when Krishnaswamy purchased the portion of the suit properties from his own father. The pleadings therein would not give way for any ray of doubt regarding the purchase of the said property for value and in a genuine manner by Krishnaswamy and the other property purchased under Exs.A-1 and B-5, dated 18.7.1940. Even regarding the purchase of this property from one Kondaswamy, it would be argued on the part of the appellants that Kondaswamy in lieu of a loan that he created with Rangaswamy and being unable to clean the loan, he came forward to sell the property in favour of Rangaswamy and that Rangaswamy purchased the same in the name of Krishnaswamy, treating the loan amount given to Kondaswamy by Rangaswamy as the sale consideration. The big question that arises here is that why should Rangaswamy be so averse towards his second son as it depicted, so as to arrive at the conclusion that no fraction of the properties that he purchased went in favour of his second son? No sufficient evidence has been placed to bring out the said factor. The reason that is alleged on the part of the appellants is that Rangaswamy felt that these properties should go to the male descendants and purchased the properties in the name of Krishnaswamy and that Krishnaswamy was acting as the Manager of the family. There does not seem to be any differences between the brothers. If at all a brother gets aggrieved against, it would not be with his father, but only with his brother, especially when the properties get involved. But, Narayanaswamy is not at all alleged to have become aggrieved against Krishnaswamy and no tangible reason is assigned in this regard. The appellants have come forward to say that Narayanaswamy released his properties in favour of others and the said Narayanaswamy admittedly lived upto 1978, but he did not make the least attempt to claim any fraction of the suit properties. Therefore, it can be concluded that the appellants projected Narayanaswamy to defend their case as a shield and no clinching evidence made is available to believe the contentions of the appellants regarding the joint family or joint family nucleus in existence for the suit properties.
29. For describing Krishnaswamy as the Manager of the joint family properties also there is no proof. The question posed by the learned Counsel for the first respondent that how could a junior co-parcener the son, act as the Manager of the family, during the lifetime of the senior co-parcener the father is not without meaning. Hence, it could only be concluded that Krishnaswamy did not do anything regarding the suit properties in his capacity as the Manager and hence basically when all these questions are not proved in evidence, there is no point informing the presumption of the joint family nucleus for the suit properties for burdening the plaintiff/first respondent to the proof of self-acquisition. Hence, on this point, it has to be decided that there is no joint family nucleus in existence nor has it been proved in evidence, thus deciding point number one in favour of the first respondent/plaintiff and against the appellants.
30. Point No. 3; The court below had a wide discussion in the light of evidence and has arrived at the right conclusion regarding all the points, such as the question of joint family nucleus, the question of gaining title by way of adverse possession and the question of the plaintiff and the defendants 5 and 6 not being in possession of the suit properties and would ultimately decide that evidence is lacking in all such pleas taken on the part of the appellants and would ultimately decide all these questions against them.
31. The lower court would also consider the case of the 14th defendant who purchased a bit of those properties under Ex.A-8 and is said to have constructed a house therein, spending Rs. 1,00,000. In the light of the judgment reported in S.A. Haleema Bivi Ammal v. S.A. Fathima Bivi and Ors., wherein it has been held that purchasing a property from one party without the knowledge of the other party having a right over it cannot be said to be a bona fide purchase and would dismiss the plea of the 14th defendant also to the effect that he is not a bona fide purchaser, but however opining that if the portion of the property, said to have been purchased by this defendant from defendants 1 to 4 to be allotted to them at the time of division is a better one, would declare the relief sought by this defendant also.
32. In the above circumstances there is absolutely no need or necessity for this Court to interfere with the judgment and decree passed by the above discussions held and in view of the said discussions, what the lower court has decided is quite legal and on the right line of appreciation of evidence and there is no patent errors of law nor perversity in approach, so far as the decision arrived at by the court below, in the above case is concerned so as to warrant interference by this Court. Hence, this Court is not inclined to interfere with the well considered and well merited judgment and degree passed by the Court of Subordinate Judge, Coimbatore in O.S.No. 271 of 1983 in any manner.
33. Point No. 4: In result, the above appeal suit fails and the same is dismissed with costs of the first respondent/plaintiff and respondents 2 and 3/defendants 5 and 6 through. The judgment and decree dated 30.9.1987 made in O.S.No. 271 of 1983 by the Court of Subordinate Judge, Coimbatore is hereby confirmed. Since the C.M.P.No. 18754 of 1995 has already been ordered, no second order need be necessary and the said C.M.P. is thus disposed of.