{"id":196764,"date":"2008-12-19T00:00:00","date_gmt":"2008-12-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-ganesan-1st-vs-shanmughathai-ammal-d1-on-19-december-2008"},"modified":"2016-10-22T09:02:11","modified_gmt":"2016-10-22T03:32:11","slug":"p-ganesan-1st-vs-shanmughathai-ammal-d1-on-19-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-ganesan-1st-vs-shanmughathai-ammal-d1-on-19-december-2008","title":{"rendered":"P.Ganesan (1St vs Shanmughathai Ammal (D1) on 19 December, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
P.Ganesan (1St vs Shanmughathai Ammal (D1) on 19 December, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated: 19\/12\/2008\n\nCoram\nTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN\n\nA.S.No.152 of 2001\nand\nC.M.P.Nos.16186 & 16187 of 2001 and M.P.No.5 of 2008\n\n1.P.Ganesan\t(1st plaintiff)\n2.P.Guruswamy\t(2nd plaintiff)\t\t\t\t... Appellants\n\nvs.\n\n1.Shanmughathai Ammal  (D1)\n2.P.Velayutham (D2)\n3.Uma (D3)\n4.Kumaravel (D4)\n5.Ramarajan (D5)\n6.Krishnaveni (D8)\n7.S.Balasubramaniam (died) (D9)\n8.S.Murugan (D10)\n9.M.Venkateswari (D11)\t\t\t\t\t\n10.S.Vijayalakshmi\n11,Marikani (minor)\n12.Abirami (minor)\t\t\t\t\t... Respondents\n(R10 to R12 are brought on record\n  as LRs of the deceased 7th respondent\n  vide order of the Court dt 28.2.2008\n  made in MP.1 to 3 of 2008 in\n  A.S.No.152 of 2001)\n\nPrayer\n\nThis appeal has been filed under Section 96 of C.P.C., against the\ndecree and Judgment dated 05.09.2000 in O.S.No.160 of 1995 on the file of the\nCourt of Subordinate Judge, Srivilliputtur.\n\n!For Appellant     ...   Mr.S.C.Herold Singh, Advocate\n^For Respondents   ...   Mr.M.Venkatachalapathy, Senior Counsel\n\t\t  \t for P.Rajendran, Advocate  (for RR2 to 6, 8 & 9)\n-----\n\n:JUDGMENT\n<\/pre>\n
\tThis appeal has been preferred against the decree and Judgment in
\nO.S.No.160 of 2005 on the file of the Court of Subordinate Judge,
\nSrivilliputtur.  The plaintiffs are the appellants herein.  The suit was filed
\nfor partition of plaint schedule Item Nos.1 to 17 properties.\n<\/p>\n
\t2.The brief facts of the plaint relevant for deciding this appeal are as
\nfollows:-\n<\/p>\n
\tThe genealogy of the plaintiffs’ family is as follows:-\n<\/p>\n
\t\t\t\tPunnavana Nadar
\n\t\t\t\t\ti
\n\t\t\t\t\ti
\n\t\t\tShanmugathai Ammal(wife -D1)
\n\t\t\t\t\ti
\n\t\t\t\t\ti
\ni                       i             i                       i                   i
\ni                       i             i                       i                   i
\nVelayutham         P.Ganesan         P.Gurusamy           Ramarajan           Subbammal (died)
\n (D2)\t\t  (Plaintiff-1)       (plaintiff-2)          (D5) \t\t(D6)<\/p>\n
\t\t\t\t\t\t\t\t\t\t  i
\n\t\t\t\t\t\t\t\t   \t\t  i
\ni
\ni
\n                                                                                 S.Seeniyappan (died)
\nUma (wife of D2)                                                                 (D7) (husband of D6)
\n(D3)
\n                                                                                  i
\ni \t\t\t\t\t\t\t\t\t\t  i
\ni
\ni
\ni                        —————————————————-\n<\/p><\/blockquote>\n
i                         Krishnaveni(D8)    S.Balasubramanian(D9)    \tS.Murugan (D10)
\n\t\t\t\t\t\t\t\t      (children of D6 & D7)\t<\/p>\n
Kumaravel (D4)
\n(son of D2 & D3)<\/p>\n
The first defendant is the wife of Punnavana Nadar, who died in 1984.  The
\nplaintiffs, D2 and D5 are the sons of the said Punnavana Nadar.  D6 is the
\ndaughter of the said Punnavana Nadar.  D3 is the wife of D2.  D4 is the son of
\nD2 & D3.  All of then constituted a joint Hindu family.  All the properties
\nscheudled to the plaint are joint family properties belonging to the children of
\nPunnavana Nadar.  Punnavana Nadar was a hardworking man, was residing at
\nNathampatti Village, Srivilliputtur Taluk.  The 2nd defendant is the eldest son.
\nAll the sons were assisting the father.  Properties were purchased in the name
\nof the father, mother as well as the defendants 2 to 4.   Though the properties
\nwere purchased in the name of the defendants 2 to 4, the said properties were
\npurchased with the funds of joint family and all joint family properties are
\nliable for division.   The properties were treated as joint family properties.
\nThe 2nd defendant was only a teacher and he could not have purchased the plaint
\nschedule properties with his funds.   The properties were enjoyed in common by
\nall the co-sharers.  Since the properties are acquired from the father’s funds
\nafter the death of the father, the plaintiffs, D1, D2, D5 & D6 will be entitled
\nto equal share.  Thus the plaintiffs claim 2\/6th share in the plaint schedule
\nproperties.  The 2nd defendant is now attempting to sell the properties, which
\nstand in his name and in the name of his wife.  Thus the plaintiffs thought it
\nfit to have separate possession of their shares in respect of the plaint
\nschedule properties.  An attempt to divide the properties through  mediators
\nproved futile.  During the pendancy of the suit D6 died. D7 to D11 are added as
\nlegal representatives of D6.  At the instance of D11 he was permitted to implead
\nherself as LR of Subbammal-D6.  Hence, the suit for partition.\n<\/p>\n
\t3.D1 and D8 to D10 remained exparte.   D11 submitted to the decree.\n<\/p>\n
\t4.The 2nd defendant to 4th defendant filed a joint written statement
\ncontending that the suit is bad for mis-joinder and non-joinder all parties.  D3
\nand D4 are unnecessary parties to the suit.  The properties which are not liable
\nfor partition are also included in the plant schedule.  The properties in the
\nhand of the plaintiffs have been purposely omitted to be included in the plaint
\nschedule.  The Court has no territorial jurisdiction to entertain the suit since
\nseveral properties mentioned in the plaint schedule lie out side the
\njurisdiction of the Court.  D1 and D6 have colluded together in instituting the
\nsuit.  The suit claim is barred by limitation.  Even according to the
\nplaintiffs, the partition opens in the year 1984.  There was no material placed
\nbefore the Court to show that the parties were in joint possession of the plaint
\nschedule properties.  The Court fee paid by the plaintiff is not correct for the
\npurpose  of court fee and jurisdiction.  The suit is hit by the provisions of
\nBenami Transaction (prohibition) Act 1988.   The plaintiffs cannot ask for
\npartition of the properties separately belonging to these defendants, which are
\ntheir self-acquired properties.  Punnavana Nadar died on 21.2.1984 at Madurai.
\nThe suit properties were not purchased with the funds of joint family as alleged
\nin the plaint.   The properties were not treated as joint family properties and
\nthey ware now enjoyed in common.  The plaintiffs are not entitled to 2\/6th share
\nin the plaint schedule properties.  There was no mediation took place during
\nMarch-1995 as alleged in the plaint.  The plaintiffs have no cause of action to
\nfile the suit.  There was no sufficient funds or nucleus of the family to
\npurchase the plaint schedule properties.  The landed property bearing S.No.322
\nalso shown in Item No.14 of the plaint schedule, has been settled in favour of
\nthe 2nd defendant and the 5th defendant by means of registered deed dated
\n26.8.1974  and also provided a considerable income for reaching the aim of the
\n2nd defendant. The 2nd defendant after completing his education with the help of
\nscholarship, had started his career as school teacher in 1964 in Kannamangalam
\nVillage, North Arcot District.  Out of his own efforts, he completed B.Ed., and
\nthen joined service as a Teacher at Nagamalai Jeyaraj Nadar Higher Secondary
\nSchool.  The marriage of the 2nd defendant took place on 11.12.1967 with a
\ndaughter of a business magnet at Madurai.  The 2nd defendant’s father-in-law
\nA.S.R.Somasundara Nadar was doing lucrative business in rice mill, which
\nprovided an opportunity for the 2nd defendant to step into his aimed goal for
\nadvancement in life.   The 2nd defendant has also joined as a teacher in South
\nGates Nadar School and his teaching profession provided enough time to
\nconcentrate also in business side.  The 2nd defendant entered into the business
\nfield in the year 1968 itself with his own income and with the help of his
\nfather-in-law.  The business included conversion of paddy into rice and selling
\nthe same in the wholesale market.  Neither the plaintiffs nor the father or
\nother family members provided any monetary or physical help to the 2nd defendant
\nin his venture.   The 2nd defendant worked as a teacher till the end of
\n31.5.1972 and he gradually entered into the business field with his own
\ninvestment and physical labour.   The 2nd defendant with his personal income
\nalso began to purchase properties from the year 1971.  With the experience he
\ngained under his father-in-law, he began to establish his own rice mill at Gate
\nLock Road, Madurai, after getting approval of the plan in his name and also
\ngetting hulling licence etc., in his name.  Both the wife of D2 and also D3 are
\nhelpful in the business of the 2nd defendant.  The 2nd defendant had also taken
\na lease of the rice mill premises from one V.P.L.Perumal Naidu of Annuppanadi
\nVillage.  The 2nd defendant with the help of his wife was able to purchase the
\nleasehold premises itself and hulling licence was obtained in their name and had
\nobtained licence in their name and had lucrative business with his hard work.
\nThe rice mill owned by him was also named as “Vathiyar Rice Mill”.  He had also
\npurchased landed properties at Chinna Anuppanadi in the name of D2 to D4 for the
\npurpose of establishing another mill on account of their interest to get
\nagricultural produces.   The properties purchased by these defendants stood in
\ntheir respective names and they have also paid tax, kist etc., to the
\nproperties.  The assessment of property tax and income tax also stood in their
\nrespective names.    Land acquisition proceedings were taken in respect of the
\nlands owned by these defendants.  The residential house purchased by the third
\ndefendant exclusively belongs to her.  In the properties purchased by these
\ndefendants the plaintiffs have no iota of rights.   Plaint schedule Item No.1
\nwas purchased as vacant site from out of the personal income of D2 and he
\nconstructed a new building over the site.  Punnavana Nadar never exercised any
\nright or control over the said property and to his knowledge, he was only a name
\nlender.  Items 2 to 6 are the portions of the rice mill premises called
\n“Vathiyar Rice Mill” at 2-B, Gate Lock Road, Madurai.  Those properties are
\nprivate properties of the defendants  2 to 4.  They have obtained licence for
\nrunning the rice mill and electric service connection for the said industry.
\nThey are also paying the house tax, urban tax in respect of the said properties.
\nLikewise plaint schedule Item Nos.7, 8 & 9 properties are agricultural lands
\nstanding in the name of the defendants 2 to 4 respectively and they are also
\nunder their  personal cultivation.   The revenue records also stand in their
\nname, besides the electric service connection.   They are also paying land tax
\nfor those properties.  These defendants have also proposed to establish another
\nmodern rice mill in the said land after a portion of the land was acquired for
\nthe formation of Ring Road.  The 2nd defendant was instrumental for purchasing
\nthose properties from out of his self earning and also from out of these
\ndefendant’s personal money.  Though plaint schedule Item No.9 was purchased in
\nthe name of Punnavana Nadar for the benefit of the                   2nd
\ndefendant in trust, the father or the 2nd defendant did not contribute any money
\nor exertion.   Taking into consideration the name of the father as lucky one,
\nthe 2nd defendant purchased the above said property in the name of Punnavana
\nNadar.  In respect of plaint schedule item Nos.9 & 12 the father of D2 viz.
\nPunnavana Nadar had executed a Will dated 19.10.1983 bequeathing those two
\nproperties in favour of D4, the sons of D2, who in turn had executed a
\nsettlement deed in favour of the 2nd defendant.  Now Item Nos.9 & 12 stand in
\nthe name of the  2nd defendant.  Item No.13 of the suit property is used as
\n“Kalam” for the modern rice mill. Which stands in the name of the 4th defendant.
\n0.34.0 ares of land comprised in S.No.322 absolutely belongs to the 2nd
\ndefendant and the 5th defendant by means of settlement deed executed by
\nMayakrishna Nadar.   The ancestral properties namely 0.19.0 Ares of land and
\n0.18.0 Ares of land in Yar Nathampatti Village comprised in S.No.320\/3-B-2 and
\n265\/2-B-1 respectively.  The properties bearing S.No.310\/1 (0.05.5 ares) and
\nS.No.310\/2 (0.19.0 ares) and S.No.321 (0.81.0 Ares) sand in the name of the 1st
\ndefendant.  Item No.15 mentioned in the plaint schedule is also a self-acquired
\nproperty of Punnavana Nadar and it is used for the residence of the family
\nmembers.   Likewise ItemNo.16 which is also self-acquired property of Punnavana
\nNadar is now used as godown.  Item No.17 mentioned in the plaint schedule is an
\nancestral property.   There is no cause of action to file the suit.  No demand
\nfor partition was made to these defendants.  Hence, the suit is liable to be
\ndismissed.\n<\/p>\n
\t5.The 5th defendant in his written statement would contend as follows:-
\n\t\tThe suit is not maintainable.  The suit is bad for mis-joinder and
\nnon-joinder of necessary parties and also on account of mis-joinder of cause of
\naction.  The suit is barred by time.   The Court fee paid on the plaint is not
\ncorrect.  The suit is hit by the provisions of Benami Transaction (Prohibition)
\nAct, 1988.  The 5th defendant adopted the written statement filed by D2 in all
\nfactual aspects. The plaintiffs are not entitled to any share much less 2\/6th
\nshare in the plaint schedule properties.  The father of the plaintiffs, D2, D5
\nand D6 viz., Punnavana Nadar had not contributed anything for the purchase of
\nthe plaint schedule properties.  The 2nd defendant had purchased the properties
\nfrom out of his own funds as per the registered settlement deed dated 26.8.1974.
\nThe 2nd defendant had settled landed properties in favour of D5.  The 5th
\ndefendant also able to acquire plaint schedule Item No.13 property by his own
\nefforts, which was later transferred in the name of the 4th defendant.  This
\ndefendant was also assessed to taxes.  The properties available for partition as
\nancestral as well as as the properties exclusively belonging to this defendant’s
\nfather are scheduled to the plaint.   The plaintiffs are assessed to taxes.
\nFrom the income derived from the ancestral and self-acquired properties of
\nPunnavana Nadar, the plaintiffs have purchased the plaint schedule properties.
\nThe plaintiffs have no other source of income for acquiring wealth in their
\nhand.  Hence, the suit is liable to be dismissed.\n<\/p>\n
\t6.The defendants 2 to 4 in their additional written statement would
\ncontend that from the year 1964, D2 is living separately and D2 was working as a
\nteacher from the year 1964 in various places.  He got married in the year 1964
\nand his father-in-law Somasundara Nadar was having rice mill at Madurai.  With
\nthe income he derived from the avocation of teacher profession, as well as from
\nthe rice mill business, D2 purchased the plaint schedule Item No.2 under a
\nregistered sale deed dated 29.01.1974 for a sum of Rs.9,000\/-, as a vacant site.
\nThereafter, he had constructed a rice mill and the same was reopened on
\n26.11.1972.  Thereafter, D2 resigned his teacher job and indulged in the rice
\nmill business.  The 2nd defendant has also taken lease of Item No.11 rice mill
\nas per the lease agreement dated 20.10.1972.  Thus from 20.10.1972 D2 was doing
\nrice business in two rice mills and had lucrative income from those two rice
\nmills.  From out of the income earned, the  2nd defendant had purchased the rice
\nmill in plaint schedule item No.11 from his owner under a registered sale deed
\ndated 11.12.1974.  From out of the income derived from the above said two rice
\nmills, the 2nd defendant had also purchased Item No.7 under a registered sale
\ndeed dated 25.6.1975 for a sum of Rs.15,000\/-.  The 2nd defendant also purchased
\nthe plaint schedule Item No.6 under a registered sale deed dated 21.4.1980 from
\none Lakshmi Ammal from out of his independent income.  Under two registered
\nsettlement deeds dated 15.7.1994  plaint schedule Item No.12 and plaint schedule
\nItem No.9 were purchased by the 2nd defendant from D4.  The 2nd defendant has
\nalso named his rice mill in plaint schedule Item No.11 as “Vathiyar Rice Mill”
\nand also has obtained rice mill license in his name besides obtaining telephone
\nconnection.  The 2nd defendant has mordenized his rice mill in plaint schedule
\nItem No.11 by spending Rs.30 lakhs.  He has also provided a drying yard at
\nplaint schedule Item No.6 by spending Rs.50 lakhs and has also improved the
\nplaint schedule Item No.7 by spending Rs.25 lakhs.  In plaint schedule item
\nNo.7, the 2nd defendant had also constructed a godown and also a paddy dyring
\nyard by spending Rs.3 lakhs.  Of the above said properties, the 2nd defendant is
\npaying wealth tax as well as income tax from the year 1974.  The plaint schedule
\nItem Nos.2, 6, 7, 9, 11 & 12 are all belonging to the 2nd defendant.  He is in
\npossession and enjoyment of the above said properties for the past 28 years,
\nwithout any interference from any quarter.  The total value of item No.2, 6, 7,
\n9, 11 & 12 is Rs.96 lakhs.  Item No.4 was purchased in the name of D3, who is
\nthe wife of D2, from out of the cash provided by this defendant’s father-in-law.
\nThe 3rd defendant has also purchased the plaint schedule item No.8 under a
\nregistered sale deed dated 25.06.1975.  The 3rd defendant also purchased plaint
\nschedule Item No.10 on 15.03.1979 under a registered sale deed for a sum of
\nRs.45,000\/-.  The 3rd defendant also purchased plaint schedule item No.5 on
\n21.4.1980.  So, the plaint schedule item Nos.4,5,8 & 10 belong to D3.  The
\nplaint schedule item No.4 property was purchased by D3 on 11.3.1974 and he has
\nalso installed a rice mill in the said property and the licence was also
\nobtained in the name of D3 for the said property.  The said rice mill was
\nconstructed in the year 1980.  Both the plaint schedule Item Nos.4 & 5 are
\nsituated side by side.   In the plaint schedule Item No.10 a portico was
\nconstructed by spending Rs.9 lakhs.  The 3rd defendant was paying income tax and
\nwealth tax.  The value of the plaint schedule Item Nos.4, 8, 10 & 5, which
\nbelonged to the 3rd defendant, is Rs.30 lakhs.   In the above said D3’s
\nproperties no one was in joint possession.  The plaint schedule Item No.3
\nproperty was purchased by D4 on 11.3.1974 under a registered sale deed.  Plaint
\nschedule Item No.13 belongs to the 4th defendant under a registered sale deed
\ndated 23.12.1992.  So the plaint schedule Item Nos.3 & 13 are the self-acquired
\nproperties of D4.  The plaintiffs have no right or title in respect of the
\nplaint schedule Item Nos.3 & 13.  The plaint schedule Item No.3 worth Rs.1 lakh.
\nPlaint schedule Item No.13 also worth Rs.1 lakh.  The   4th defendant is also
\npaying income tax and wealth tax.  The remaining properties are the plaint
\nschedule Item Nos.1, 14, 15, 16 and 17.  In plaint schedule Item No.14 the item
\nNo.71 is S.No.322 measuring 84 cents which belonged to Mayakrishnan Nadar, who
\nhad executed a settlement deed dated 26.8.1974 in favour of D2 & D5.  The
\nplaintiffs have no right or title in respect of the plaint schedule Item No.17.
\nSo Item No.17 in the plaint schedule Item No.14 ie., 84 cents in S.No.322
\nbelongs to D2 & D5 under the settlement deed dated 26.08.1974.  The said
\nPunnavana Nadar died on 21.02.1984 leaving plaintiffs, D5 & D6 as his LRs.  So
\nthe plaintiffs will be entitled to a share in Item Nos.14 to 17 only.  The
\nplaint schedule Item Nos.1, 9 & 12 properties were purchased by D2 Benami in the
\nname of his father Punnavana Nadar.  The sale consideration for the above said
\nthree sale deeds were paid only by D2.  The 2nd defendant has helped a lot to
\nhis father Punnavana Nadar and his family.  So as a gratuitous gesture Punnavana
\nNadar had executed a Will dated 19.10.1983 in respect of Plaint schedule Item
\nNo.9 & 12 in favour of D4, the son of D2.  Punnavana Nadar died on 21.2.1984. So
\nafter his death the said Will came into force.  As per the above said Will,
\nplaint schedule Item No.9 & 12 belonged to D4.  In respect of plaint schedule
\nItem No.12 the Government has taken land acquisition proceedings.  The land
\ncompensation was also awarded (a sum of Rs.1,60,010\/-) in the name of D4 on
\n24.12.1992 by the Government.  The 4th defendant had executed two settlement
\ndeeds dated 15.7.1994 in respect of plaint schedule Item Nos.9 & 12 in favour of
\nthis father D2.  So the plaint schedule Item No.9 & 12 also belonged to D2. The
\nplaint schedule Item No.1 was purchased in the name of Punnavana Nadar by D2.
\nBut no document was executed in respect of plaint schedule Item No.1 by the said
\nPunnavana Nadar.  In the sale deed taken in the name of D3 & D4, Punnavana Nadar
\nhas also signed as a witness.   So, these defendants have no objection for
\npassing a preliminary decree for partition in respect of the plaint schedule
\nItem Nos.1, 14 to 17.  In respect of the other plaint schedule properties the
\nsuit is liable to be dismissed.\n<\/p>\n
\t7.The 4th defendant in his additional written statement would contend that
\nin the plaint the market value of the plaint schedule Item No.14 is shown as
\nRs.5,25,000\/-.  The said valuation is not correct.  The plaint schedule Item
\nNo.17 in plaint schedule Item No.14 ie., 0.34.0 Ares in S.No.322 belonged to
\nMayakrishnan, who had executed a settlement deed dated 26.8.1974 in favour of D2
\nand D5.  So in respect of the said property, the plaintiffs cannot claim any
\nright.  The plaint schedule Item Nos.15 & 16 were purchased by Punnavana Nadar
\nfrom out of the joint family nucleus and  he had dug up a well and installed a
\nmotor pump set.  Punnavana Nadar had mortgaged the plaint schedule item No.14
\nwith Tharani Sugar Mills and raised mortgage loan of Rs.33,200\/-.  This fact
\nitself will go to show that there was no income derived by Punnavana Nadar from
\nthe plaint schedule Item No.14.  In plaint schedule Item Nos.15 & 16 an house
\nwas also constructed by Punnavana Nadar from out of the income derived from his
\nagricultural lands.  The plaint schedule item No.13 belongs to D5 as per the
\nsale deed dated 11.12.1974 at the time of purchase of the said sale deed D5 was
\nstudying as a student in Senthilkumar College, Virudhunagar.  For the said sale
\ndeed, sale price was paid by D2 from out of his own income.  Later D5 executed a
\nsale deed dated 23.12.1992 in respect of the said property in favour of D4.  So
\nin plaint schedule Item No.13 the plaintiffs cannot claim any share.  This
\ndefendant is not entitled to any share in plaint schedule Item Nos.2 to 13.  In
\nplaint schedule item No.12 and also in plaint schedule Item No.1, D2 had
\nconstructed three floor building by spending Rs.6 lakhs and has also named the
\nsaid building in the name of his son’s name as “kumaravel Illam”.  The Will
\ndated 19.10.1983 in respect of the plaint schedule item Nos.9 & 12 executed by
\nPunnavana Nadar in favour of D4 came in to effect.   As per the said Will,
\nplaint schedule Item Nos.9 & 12 belong to D4.  In the plaint schedule Item No.1
\nD5 is also entitled to 1\/6th share.  Like that in plaint schedule Item Nos.14 to
\n17 also D5 is entitled to 1\/6th share.  The 5th defendant has paid Court feet
\nfor partition of his 1\/6th share in plaint schedule Item Nos.1, 14 to 17.\n<\/p>\n
\t8.The 1st plaintiff in his reply statement would deny the averments in the
\nwritten statement of the contesting defendants.  There was a partition entered
\ninto between Punnavana Nadar and his brother Mookaiya Nadar on 8.8.1950. The
\njoint family of Punnavana Nadar was getting Rs.60,000\/- to Rs.70,000\/- per month
\ntowards agricultural income from the landed properties belonged to the joint
\nfamily. The land bearing S.No.322 in plaint schedule Item No.14 belonged to
\nPunnavana Nadar’s uncle’s son Mayakrishnan Nadar.  Under an exchange arrangement
\nPunnavana Nadar’s sons D2 to D5 got S.No.322 undeer a settlement ded dated
\n26.08.1974.  But possession was not handed over to D2 to D5.  But the said
\nproperty  was enjoyed as a joint family property.  No sufficient income was
\nderived by D2 through his avocation as a teacher to purchase the plaint schedule
\nproperties.  There was no Will dated 19.10.1983 executed by Punnavana Nadar in
\nrespect of plaint schedule Item Nos.9 & 12 as alleged in the written statement.
\nThe alleged Will is a forged document.\n<\/p>\n
\t9.On the above pleadings the learned trial Judge has framed 15 issues and
\ntwo additional issues for trial.   On the side of the plaintiffs P.W.1 to P.W.4
\nwere examined and Ex.A.1 to Ex.A.30 were marked.   On the side of the defendant
\nD.W.1 to D.W.6 were examined and Ex.B.1 to Ex.B.201 were marked.  Ex.X.1 was
\nalso marked by the Court as a third party document.  After scanning the evidence
\nmeticulously the learned trial Judge has come to a conclusion that only in
\nrespect of plaint schedule Item Nos.1, 14 to 17 plaintiffs are entitled to 2\/6th
\nshare (each 1\/6th share) and D5 was also granted a preliminary decree for
\npartition of 1\/6th share in plaint schedule Item Nos.1, 14 to 17. In respect of
\nthe plaint schedule Item Nos.2 to 13 the suit was dismissed.  Aggrieved by the
\nfindings of the learned trial Judge, the plaintiffs have preferred this appeal.\n<\/p>\n
\t10.Now the points for determination in this appeal are ;\n<\/p>\n
\t\t(1)Whether the plaintiffs are together entitled to 2\/6th share in
\nplaint schedule item Nos.2 to 17 or they are the exclusive properties of D2 to
\nD4?\n<\/p>\n
\t\t(2)Whether the 2nd defendant is entitled to plaint schedule Item
\nNos.9  & 12 as per the settlement deed executed by D4 under Ex.B.155 and under
\nEx.B.156?\n<\/p>\n
\t\t(3)Whether the 4th defendant got any right or title in respect of
\nthe plaint schedule Item Nos.9 & 12 under the alleged Will dated 19.10.1983 said
\nto have been executed by Punnavana Nadar?\n<\/p>\n
\t\t(4)Whether the decree and Judgment in O.S.No.160 of 1995 on the file
\nof the Court of Subordinate Judge, Srivilliputtur, is liable to be set aside for
\nthe reasons stated in the memorandum of appeal?\n<\/p>\n
\t11.Point No.1 Admitted facts are one Punnavana Nadar had four sons viz.,
\n2nd defendant, 1st plaintiff, 2nd plaintiff and 5th defendant and one daughter
\nviz. 6th defendant.  The two sons of Punnavana Nadar have filed this suit for
\npartition of the plaint schedule properties viz., Item No.1 to 17 claiming that
\nall the plaint schedule properties are purchased from out of the income derived
\nfrom the joint nucleus of the Hindu joint family property of Punnavana Nadar,
\nthe plaintiffs, D2 & D5.  The learned trial Judge after going through the
\ndocumentary and oral evidence has held that the plaint schedule Item Nos.1, 14
\nto 17 alone are the Hindu joint family properties of Punnavana Nadar and his
\nsons has decreed the suit accordingly by passing a preliminary decree for
\npartition of plaintiffs 2\/6th share in the plaint schedule properties.
\nPunnavana Nadar is no more as seen from Ex.P.139.  His wife Shanmgathai Ammal –
\nD1 in the suit remained exparte, but she was examined as P.W.2 on the side of
\nthe plaintiffs.  With regard to the findings that the plaint schedule Item No.1
\nand plaint schedule item Nos.14 to 17 are the Hindu joint family properties,
\nthere is no cross-appeal preferred by the contesting defendants.  Hence, so far
\nas the plaint schedule Item Nos.1, 14 to 17 are concerned the decree and
\nJudgment of the learned trial Judge as to the finding that they are Hindu joint
\nfamily properties of late Punnavana Nadar has become final.  With regard to
\nplaint schedule item No.2, the 2nd defendant, the contesting defendant before
\nthe trial Court as D.W.1 would depose that the plaint schedule Item Nos, 2, 3,
\n5, 8 & 9 were purchased in the name of his father late Punnavana Nadar and that
\nhis father was an agriculturalist and there was no other source of income for
\nhim.  He would depose that he is the only educated member of the Hindu joint
\nfamily of late Punnavana Nadar and that he joint in service as a teacher after
\ncompleting B.Sc, B.Ed., decree and that he got married in the year 1967 and his
\nfather-in-law was A.S.R.Somasundara Nadar, who was in an affluent position and
\nthat his father-in-law was having a rice mill of his own and that from February
\n1968 onwards he was looking after his father-in-law’s rice mill and indulged in
\nrice mill business besides his regular avocation.  It is the case of the
\ncontesting 2nd defendant that from out of his own income he had purchased the
\nplaint schedule Item No.2 on 29.01.1971 under Ex.B.8-sale deed from one
\nKondalsamy Naidu for a sum of Rs.9,000\/-.\n<\/p>\n
\t 11(a)The learned counsel appearing for the appellants\/plaintiffs would
\ncontend that even though the 2nd defendant would claim that he had paid the sale
\nconsideration for Ex.B.8-sale deed, in fact the sale consideration was paid by
\nhis father-in-law Somasundara Nadar as admitted by him.  The defendant’s father-
\nin-law Somasundara Nadar was examined as D.W.4, who would admit that D2 is his
\nson-in-law and that he gave his daughter in marriage to D2 in the year 1967 and
\nthat he was doing rice mill business and that he is the owner of two rice mills.
\nAccording to him, D2 had resigned his avocation in the year 1972 and indulged in
\nrice mill business along with him after taking a rice mill on lease.  In the
\ncross-examination he would admit that at the time of registration of Ex.B.8-sale
\ndeed he also accompanied D2 to the Sub-Registrar’s office and the sale
\nconsideration of Rs.9,000\/-  under Ex.B.8-sale deed was paid by him after
\nreceiving the said amount of Rs.9,000\/- from his son-in-law ie., the 2nd
\ndefendant.  In categorical terms he would depose that the said sum of Rs.9,000\/-
\nbelongs to D2 only.  Bassing his reliance on Ex.A.13 to Ex.A.28 – bills for the
\nsale of chillies and cotton, the learned counsel for the appellant would contend
\nthat the Hindu joint family of late Punnavana Nadar was getting sufficient
\nincome from the agricultural lands owned by the Hindu joint family and only from
\nthat amount, the sale consideration for Ex.B.8 was paid by D2 and hence, plaint
\nschedule Item No.2 is to be construed as a joint family property of late
\nPunnavana Nadar.   But to my surprise not even a single bill out of Ex.A.13 to
\nEx.A.28 relates to the year 1971 on which year Ex.B.8 – sale deed dated
\n29.1.1971 was taken by the 2nd defendant in his name.  In Ex.A.13 is torn.  The
\nEnglish year is not found therein.  But the corresponding Tamil year 1152 is
\nseen in Ex.A.13, which relates to the year 1977.  Ex.A.14 is of the year 1976,
\nEx.A.15 is of the year 1977, Ex.A.16 is of the year 1977, Ex.A.17 is of the year
\n1983. Ex.A.18 is of the year 1977, Ex.A.19 is of the year 1977, Ex.A.20 is of
\nthe year 1977,  Ex.A.21 is of the year 1978, Ex.A.22 is of the year 1977,
\nEx.A.23 is of the year 1977,  Ex.A.24 is of the year 1977, Ex.A.25 is of the
\nyear 1977, Ex.A.26 is of the year 1978.  Ex.A.27 is of the year 1978,  Ex.A.28
\nis of the year 1983,  Exs.A.15, 16, 19, 20, 22, 23, 24, 26 are Bills relating to
\nthe sale of Chillies. Exs.A.17, 18, 21, 25, 27 & 28 are relating to the sale of
\ncotton.  From the above bills which are relating to the year from 1976 to 1983
\nthe total earning of the joint family comes to below Rs.30,000\/- only.  Even
\nthough it was contended on behalf of the plaintiffs that apart from the income
\nunder Ex.A.13 to Ex.A.23, the Hindu joint family was deriving sufficient income
\nfrom the sale of paddy and sugar, there is no material placed before the trial
\nCourt to show that the Hindu joint family of late Punnavana Nadar was getting
\nsubstantial income from the Hindu joint family properties of late Punnavana
\nNadar.   D.W.1 (D2) would further depose that in the vacant site of 22 . cents
\npurchased by him under Ex.B.8, he had installed a rice mill and Ex.B.9 is the
\ninvitation card printed by him for the reopening of the rice mill.  He has also
\nproduced Exs.B.10, 35, 36, & 37 to show that the said rice mill was named by him
\nas “Vathiyar Rice Mill” and that licence also stands in his name.  The plaint
\nschedule Item No.2 is 16 . cents in T.S.No.2390 Old Annupandi Road, Gate Lock
\nRoad, Madurai Twon.  According to D.W.6, Kumaravel-D4 and his parents had
\npurchased the said property in his name when he was minor through his mother and
\nguardian V.Uma (D3) under Ex.B.131 (wrongly typed in the deposition of D.W.6 as
\nEx.B.137).  So far the plaintiffs have not taken any steps to set aside
\nEx.B.131-sale deed, which stands in the name of D4 on the ground that the said
\nproperty belongs to the Hindu joint family of late  Punnavana Nadar and not to
\nD4.  The plaint schedule Item No.4 is 16 . cents in T.S.No.2390 Gate Lock Road,
\nMadurai Town.  The 2nd defendant in his evidence would depose that D3 is his
\nwife and plaint schedule Item No.4 was purchased by his wife on 11.3.1974 under
\nEx.B.82-sale deed.  It is not the claim of the plaintiff that the plaint
\nschedule item No.4 was purchased from out of the joint family income of late
\nPunnavana Nadar in the name of D3.  The plaint schedule Item No.5 is 20 cents
\nout of 56 cents in T.S.No.2399 of Annupandi Village,   Madurai Town.  According
\nto  D2, the plaint schedule Item No.5 was purchased by his wife D3 on 21.4.1980
\nunder Ex.B.100-sale deed for a sum of Rs.8,000\/-.  It is not the case of the
\nplaintiff that the property purchased under Ex.B.100 in the name of D3 on
\n21.4.1980 from out of the joint family income derived from the joint family
\nnucleus of the joint family property of late Punnavana Nadar.  According to D2,
\nthe plaint schedule Item No.6,  11 . cents out of   56 cents in T.S.No.2399 of
\nAnnupandi, Madurai Town,  was purchased on 21.4.1980 by D2 under Ex.B.73 for a
\nsum of Rs.9,500\/- and the plaint schedule Item No.7 measuring 3 acres 9 cents in
\nS.No.82\/2, 85\/2 and 82\/1 in Annupandi Village, Madurai Town, along with five
\nhorse power electric motor pump set and well was purchased for Rs.15,000\/- by D2
\non 25.6.1975 under Ex.B.56-sale deed.  The plaint schedule Item No.8 measuring 3
\nacres 39 cents in S.Nos.82\/10, 82\/9, 82\/8,  82\/3 & 82\/4 in Annupandi Vilalge,
\nMadurai Town, was purchased in the name of D3 on 25.10.1975 for a sum of
\nRs.10,000\/- under Ex.B.101.  There is no material placed before the trial Court
\nto show that the sale consideration for Ex.B.56 and Ex.B.73 was paid from out of
\nthe income derived from the nucleus of the Hindu joint family properties of late
\nPunnavana  Nadar.\n<\/p>\n
\t11(b)The plaint schedule Item No.10 is a house in T.S.No.329\/18 New
\nNo.3193 to 96 Block No.68 at Devarajan Street, Thriumgal Nagar, Pangajam Colony,
\nin Madurai Town.   According to D.W.1 (D2), Item No.10 was purchased by his wife
\non 15.03.1979 for Rs.45,000\/- under Ex.B.114-sale deed.  Corporation tax was
\nlevied on her under Ex.B.115, Ex.B.116 and Ex.B.117.  Under Ex.B.118 to Ex.B.120
\nthree separate electricity meter connections were obtained to the meter
\ninstalled in the said property.  Exs.B.121 to 123 are the electricity
\nconsumption charges for those meters.  Under Ex.B.124 water charge for the said
\nproperty has been paid by D2’s wife D3.  There is also no material placed before
\nthe trial Court to show that the sale consideration for Ex.B.114-sale deed was
\npaid from out of the joint nucleus of the Hindu joint family of late Punnavana
\nNadar.\n<\/p>\n
\t11(c)Item No.11 to the plaint schedule was purchased under Ex.B.38-sale
\ndeed dated 11.12.1974 in favour of P.Velayutham (D2).  Under Ex.B.191 water
\nconnection was also given in the name of D2.\n<\/p>\n
\t11(d)Item No.13 to the plaint schedule is a building bearing Door NO.41 in
\nTNS.467 of Madurai town.  D.W.5 (D5 – Ramarajan in his evidence would admit that
\nItem No.13 to the plaint schedule was purchased in his name by his brother D2
\nand that subsequently he had sold the plaint schedule Item No.13 in favour of
\nKumaravel (D4) under sale deed dated 23.12.1992.  D.W.1 (D2) would depose that
\nItem No.13 was purchased by him in the name of his brother Ramarajan (D5) under
\nEx.B.40-sale deed.  Under Ex.B.153, D4 had paid land tax for plaint schedule
\nItem Nos.12 & 13.  D5 in turn had executed Ex.B.199-sale deed dated 23.12.1992
\nin favour of D4 in respect of plaint schedule Item No.13.  There is absolutely
\nno material placed before the trial Court to show that Item No.13 was purchased
\nfrom out of the income derived from the joint family properties of late
\nPunnavana Nadar.\n<\/p>\n
\t11(e) As far as plaint schedule item Nos.14 to 17 are concerned the
\ndefendants have no dispute as to the fact that they belong to the Hindu joint
\nfamily of late Punnavana Nadar along with the plaint schedule Item No.1.\n<\/p>\n
\t11(f)The learned counsel appearing for the respondents relying on AIR 2007
\nSupreme Court 218 (Appasaheb Peerappa Chandgade Vs. Devendra Peerappa Chandgade
\n& others) would contend that the burden of proof is heavily on the plaintiffs
\nwho have approached the Court for partition of the plaint schedule properties
\nclaiming that the properties are joint family properties.  The exact observation
\nin the above said ratio of the Honourable Apex Court is as follows:-
\n\t“So far the legal proposition is concerned, there is no gainsaying that
\nwhenever a suit for partition and determination of share and possession thereof
\nis filed, then the initial burden is on the plaintiff to show that the entire
\nproperty was a joint Hindu family property and after initial discharge of the
\nburden, it shifts on the defendants to show that the proeprty claimed by them
\nwas not purchased out of the joint family nucleus andit was purchased
\nindependent of them.  This settled proposition emerges from various decisions of
\nthis Court right from 1954 onwards.\n<\/p>\n
\tIn the case of Srinivas Krishnarao Kango V. Narayan Devji Kango & Ors,<\/a>
\nreported in AIR 1954 SC 379, there Lordships held that proof of the existence of
\na joint family does not lead to the presumption that property held by any member
\nof the family is joint, and the burden rests upon anyone asserting that any item
\nof property was joint to establish the fact.   But where it is established that
\nthe family possessed some joint property which from its nature and relative
\nvalue may have formed the nucleus from which the property in question may have
\nbeen acquired, the burden shifts to the party alleging self-acquisition to
\nestablish affirmatively that the property was acquired without the aid of the
\njoint family property. Therefore, so far as the proposition of law is concerned,
\nthe initial burden is on the person who claims that is was joint family property
\nbut after initial discharge of the burden, it shifts to the property who claims
\nthat the property has been purchased by him through his own source and not from
\nthe join family nucleus.  Same proposition has been followed in the case of
\nMst.Rukhmabai Vs. Lala Laxminarayan & Ors, report in AIR 1960 SC 335 wherein it
\nwas observed as follows:-\n<\/p>\n
\t“There is a presumption in Hindu Law that family is joint. There can be a
\ndivision in status among the members of a joint Hindu family by definement of
\nshares which is technically called “division of status”. Or an actual division
\namong them by allotment of specific property to each one of them which is
\ndescribed as “division by metes and bounds”.  A member need not receive any
\nshare in the joint estate but may renounce his interest therein; his
\nrenunciation merely extinguishes his interest in the estate but does not affect
\nthat status of the remaining members vis-a-vis the family property.  A division
\nin status can be effected by an unambiguous declaration to become divided from
\nthe others and that intention can be expressed by any process.  Though prima
\nfacie a document clearly expressing the intention to divide brings about a
\ndivision in status, it is open to a party to prove that the said document was a
\nsham or a nominal one not intended to be acted upon but was conceived and
\nexecuted for an ulterior purpose.  But there is no presumption that any
\nproperty, whether moveable or immoveable, held by a member of a joint Hindu
\nfamily, is joint family property.   The burden lies upon the person who asserts
\nthat a particular property is joint family property to establish that fact.  But
\nif he proves that there was sufficient joint family nucleus from and out of
\nwhich the said property could have been acquired, the burden shifts to the
\nmember of the family    setting up the claim that it is his personal property to
\nestablish that the said property has been acquired without any assistance from
\nthe joint family property.”\n<\/p>\n
Similarly, in the case of Achuthan Nair Vs. Chinnammu Amma & Ors, reported in
\nAIR 1966 SC 411,  their Lordships held as follows:-\n<\/p>\n
“Under Hindu Law, when a property stands in the name of a member of a joint
\nfamily, it is incumbent upon those asserting that it is a joint family property
\nto establish it.  When it proved or admitted that a family possessed sufficient
\nnucleus with the adi of which the member might have made the acquisition, the
\nlaw raises a presumption that it is a joint family property and the onus is
\nshifted to the individual member to establish that the property was acquired by
\nhim without the aid of the said nucleus.  This is a well settled proposition of
\nlaw”.\n<\/p>\n
Similarly, in the case of Bhagwant P.Sulakhe Vs. Digambar Gopal Sulakhe & Ors.
\nReported in AIR 1986 SC 79, their Lordships have held that the character of any
\njoint family proeprty does not change with the severance of the status of the
\njoint family and a joint family property continues to retain its joint family
\ncharacter so long as the joint family property is in existence and is not
\npartitioned amongst the co-sharers.  By a unilateral act it is not open to any
\nmember of the joint family to covert any joint family property into his personal
\nproperty.\n<\/p>\n
\tIn the case of Surendra Kumar Vs. Phoolchand (dead) through LRs & Anr,
\nreported in (1996)2 SCC 491 their Lordships held as follows:-
\n\t“It is no doubt true that there is no presumption that a family because it
\nis joint possessed joint property and therefore the person alleging that
\nproperty to be joint has to establish that the family was possessed of some
\nproperty with the income of which the property cold have been acquired.  But
\nsuch a presumption is a presumption of fact which can be rebutted.  But where it
\nis established or admitted that the family which possessed joint property which
\nfrom its nature and relative value may have formed sufficient nucleus from which
\nthe property in question may have been acquired, the property and the burden
\nshifts to the party alleging self-acquisition to establish affirmatively that
\nthe property was acquired without the aid of the joint family.”
\nTherefore, on survey of the aforesaid decisions what emerges is that there is no
\npresumption of a joint Hindu family but on the evidence if it is established
\nthat the property was joint Hindu family property and the other properties were
\nacquired out of that nucleus, if the initial burden is discharged by the person
\nwho claims joint Hindu family, then the burden shifts to the party alleging
\nself-acquisition to establish affirmatively that the property was acquired
\nwithout the aid of the joint family property by cogent and necessary evidence.”
\nin the case on hand, the plaintiffs have miserably failed to establish that the
\nplaint schedule properties except Item Nos.1 & 14 to 17 have been purchased by
\nthe defendants only from out of the joint family nucleus.   As I have already
\nreferred to that  Ex.A.13 to Ex.A.28  receipts for the sale by cotton and
\nchilies for the period from 1976 to 1983 to an amount about Rs.30,000\/- is not
\nenough to derive us to come to a conclusion that the other properties which
\nstood in the name of the defendants also were purchased from out of the income
\nderived from the joint family properties.  On the other hand, it is in evidence
\nthat D2 had separated from the joint family even in the year 1964 and was
\nworking as a teacher in various places till his marriage and after his marriage
\nwith the help of his father-in-law who was a rice mill owner established another
\nrice mill and derived income from two rice mills and from out of the income
\nderived, D2 had purchased the other properties except Item Nos.1 & 14 to 17 to
\nthe plaint schedule.\n<\/p>\n
\t11(g)The relevant observation in the dictum in AIR 2003 KARNATAKA 245
\n(V.K.Thimmaiah and others Vs. Smt.V.K.Parvathi and others) relied on by the
\nlearned counsel for the respondents is that:-\n<\/p>\n
\t“Any properties acquired by the kartha of the joint family is presumed to
\nbe the joint family properties.  If any one of the co-parcener asserts and
\nclaims that the property is his self acquired property the burden is on him to
\nprove that the said property is his self acquired property.”\n<\/p>\n
\t11(h)Relying on AIR 2002 ORISSA 110 (Harihar Sethi and another Vs.
\nLadukishore Sethi and Others), the learned counsel for the respondents would
\ncontend that a Hindu, even if be joint, may possess separate property and such
\nproperty belongs exclusively to him.    The exact observation on which the
\nreliance was placed by the learned Senior counsel for the respondents is as
\nfollows:-\n<\/p>\n
\t“However, it is no more res integra that a senior member of the family may
\ngive up his right and a junior member of the family can act as Karta with
\nconsent of all the other members.  In the present case, the defendants who
\nputforth a claim that the plaintiff acted as Karta of the family, though he is
\nnot the eldest member, have totally failed to prove the said fact by adducing
\ncogent evidence.  In the absence of any evidence, it is not possible to accept
\nthe contention raised by the appellants that the plaintiff, though he was not
\nthe senior member of the family, acted as the Karta.  The decision cited by the
\nappellants do not apply to the facts of the present case.  Law as enumerated
\nunder Article 222 of Mulla Hindu Law is well settled that a Hindu, even if be
\njoint, may possess separate property.  Such property belongs exclusively to him.
\nNo other member of the coparcenary not even his male issue, acquires any
\ninterest in it by birth, and on his death intestate, it passes by succession to
\nhis heirs, and not by survivorship to the surviving coparceners.
\n\tAlso there can be no presumption that the family,  because it is joint,
\npossesses joint properties.  In a suit for partition a party who claims that a
\nparticular item of property is joint family property, the burden of proving that
\nit is so, rests on the party asserting it.”\n<\/p>\n
For the same proposition of law reliance was placed on the ratio in 1999(3) SCC
\n240 [Subramania Reddi (dead) Vs. Venkatasubba Reddi (dead) and  others], wherein
\nit has been held by the Honourable Apex Court as follows:-\n<\/p>\n
\t“The question of blending of properties was not considered by the High
\nCourt on the basis that there was no such plea.  The learned counsel for the
\nappellant relied upon B.Shah Vs. Presiding Officer, Labour Court, Coimbatore
\n1977(4) SCC 384 to submit that no specific plea of blending is required. We will
\nassume for the purpose of this case that this legal position is correct.  Even
\nso, theresult will not be different because there is no evidence of blending of
\nseparate property in the joint family property.  Again the whole matter rests on
\nappreciation of evidence. When there are concurrent findings on the question of
\nfact we do not think we can reappreciate the same.  Indeed the appellant wanted
\nthat even properties inheritted by the first defendant under a Will should also
\nbe included in the joint family properties and should be treated as having got
\nblended with other properties. We do not think such a course in permissible at
\nall and there was no reason for the first defendant to bring in the properties
\ninherited by him from his relations on his maternal side to blend with the
\nproperty of the joint family.”\n<\/p>\n
\t11(i)The learned senior counsel appearing for the respondents also relied
\non AIR 2002 MADRAS 402 (P.M.Mani Vs. P.S.Mohankumar and others) for the same
\npoint, on the following observations:-\n<\/p>\n
\t“When a person claiming that a particular property was ancestral or it
\nbelonged to the joint family, the burden of proving the same lies on him.  He
\nmust show initially that there was sufficient nucleus.  A presumption that a
\nproperty in the hands of an individual coparcener was joint family property can
\nbe drawn only if it is shown that there was a nucleus of the joint family
\nproperty, from which it might fairly be said to have grown.  If such nucleus is
\nproved by sufficient evidence or admitted by the opposite party, only then, the
\nonus of proving separate acquisition on the coparcener alleging the same would
\narise.  In the instant case, a careful analysis of the evidence, both oral and
\ndocumentary would reveal that the plaintiffs have not discharged the burden of
\nproof, showing that the suit properties were ancestral properties.”
\nThe other ratio on which reliance was placed by the learned senior counsel for
\nthe respondents is 2002 (3) CTC 141 (M.Saminatha Vellalar and three others Vs.
\nGovindaraju and seven others), wherein a Devision Bench of this Court has held
\nas follows:-\n<\/p>\n
\t“In G.Narayana Raju Vs. Chamaraju, AIR 1968 SC 1276, the Supreme Court has
\nreiterated the principle that it is well settled that there is no presumption
\nunder Hindu Law that a business standing in the name of any member of the joint
\nfamily is a joint family business even if that member is the manager of the
\njoint family, and that unless it could be shown that the business in the hands
\nof the coparcener grew up with the assistance of the joint family property or
\njoint family funds or that the earnings of the business were blended with the
\njoint family estate, the business remains free and separate.
\n……………..\n<\/p>\n
\tIn Chattanatha Vs. Ramachandra, AIR 1955 SC 799, the Supreme Court has
\nheld that under the Hindu Law, there is no presumption that a business standing
\nin the name of any member is a joint family one even when that member is the
\nmanager of the family, and it makes no difference in this respect that the
\nmanager is the father of the coparceners.\n<\/p>\n
……………\n<\/p>\n
\tIn Ramayya Vs. Kolanda, AIR 1939 Mad. 911, a Division Bench of this Court
\nhas held that in this case there is every reason for thinking that the
\nacquisitions by the brothers were as much the result of their own industry and
\nthrift as they were the natural product of the land itself, that the
\nacquisitions claimed represent savings extending over a fairly long period, that
\nyers after the allotment and years after the acquisition it is scarcely just or
\nequitable that the acquirer should be forced to share the product of his thrift
\nand industry with, it may be, an indolent or ease-loving coparcener, and that
\nthere is no principle of Hindu law which tends to the perpetuation of such gross
\ninjustice.\n<\/p>\n
……………..\n<\/p>\n
\tIn Rathinam Vs. Thangasami Pillai, 1967 (I) MLJ 360, a Division Bench of
\nthis Court held that mere proof of the existence of the joint family owning some
\njoint family property does not give rise to any presumptions and that it must be
\nestablished that the family possessed some joint property which from its very
\nnature and relative value may have formed the nucleus sufficient and adequate in
\ncharacter so as to impress the acquisitions with the character of the joint
\nfamily property.”\n<\/p>\n
\t11(j)The relevant observation on which the reliance was placed by the
\nlearned senior counsel for the respondents in AIR 1969 SC 1076 (Mudigowda
\nGowdappa Sankh and others Vs. Ramchandra Revgowda Sankh (dead) by  his legal
\nrepresentatives and another) is as follows:-\n<\/p>\n
\t“There is no presumption that a Hindu family merely because it is joint,
\npossesses any joint property.  The burden of proving that any particular
\nproperty is joint family property, is, therefore, in the first instance upon the
\nperson who claims it as coparcenary property.  But if the possession of a
\nnucleus of the joint family property is either admitted or proved, any
\nacquisition made by a member of the joint family is presumed to be joint family
\nproperty.  This is however subject to the limitation that the joint family
\nproperty must be such as with its aid the property in question could have been
\nacquired.  It is only after the possession of an adequate nucleus is shown, that
\nthe onus shifts on to the person who claims the property as self-acquisition to
\naffirmatively make out that the property was acquired without any aid from the
\nfamily estate.”\n<\/p>\n
The same principle was reiterated in 19995 (1) MLJ 336 (K.Sengodan Vs.
\nK.Dharmalingam and others),  as follows:-\n<\/p>\n
\t“The appellant’s attempt has been to shift the burden of proving that the
\nproperties involved are the self-acquisitions of the defence.  It can, however,
\nnot be denied that the initial burden is only on the one who contends that the
\nproperty belongs to an undivided Hindu family, and only where the initial burden
\nis discharged by the one who is setting up such a claim, then the other side who
\ncontends to the contrary be called upon to establish his case.  The law on the
\nsubject has never been in doubt.  The appellant has failed to prove the
\nexistence of such ancestral nucleus which by itself, is not sufficient but
\navailability of the ancestral nucleus or its adequacy of the same to fund the
\nlater acquisitions, are also essential requisites for an answer in favour of his
\ncontention.”\n<\/p>\n
The learned senior counsel appearing for the respondents relying on 1994(4) SCC
\n294 (Kenchegowda Vs. Siddegowda) would contend that a suit for partial partition
\nwhen all the joint family properties not made the subject-mate of the suit nor
\nthe co-sharers impleaded, is not maintainable.  But as far as the case on hand
\nis concerned the defendants have not produced any material to show that some of
\nthe joint family properties were left to be included for partition. The learned
\nsenior counsel relying on Ex.X.1 would contend that in the plaint schedule Item
\nNo.2 there is a rice mill put up by the 2nd defendant, but the same was not
\nincluded for partition, hence, the suit itself is bad for partial partition.
\nBut in Ex.X.1 it is seen that from out of the property viz, ‘Vathiya Rice Mill’
\nthe 2nd defendant shall take 60% and D5 shall take 25% and first appellate-
\nGanesan shall take 15% of the total income.  It is not the case of the parties
\nthat there was denial of the agreed shares in the profits of the rice mill by
\nD2-Velayutham since there is already arrangement for sharing the profits from
\nthe rice mill in plaint schedule item No.2 viz., ‘Vathiyar Rice Mill”.   Point
\nNo.1 is answered accordingly.\n<\/p>\n
\t12.Point Nos.2 & 3:- With regard to Item No.9 and 12  of the plaint
\nschedule it is admitted case of D.W.1 that they belonged to his father Punnavana
\nNadar, who had executed a Will dated 19.10.1983 in favour of his son Kumaravel
\n(D4) and that in pursuance of the said Will patta has been transferred in favour
\nof his son D4 under Ex.B.141 and a portion of the property in Item No.9 was
\nacquired by the Government for the formation of Ring Road and the Tahsildar had
\nalso issued notice under Ex.B.142 to his son to receive the compensation and
\nEx.B.143 is another notice calling upon him to attend the enquiry and Ex.B.144
\nis the enquiry proceedings of the Tahsildar and Ex.B.145 is the award passed in
\nthe Land acquisition proceedings and the compensation was fixed as Rs.180\/- per
\ncent and that he had filed LAOP.No.74\/1993 for enhancement of the compensation
\nin which  a judgment was passed under Ex.B.146.  But a perusal of Ex.B.146 will
\ngo to show that the claimant viz., Kumaravel (D4) has not claimed that the
\nacquired land belonged to him under the alleged Will executed by Punnavana
\nNadar.  It is the case of the respondents – defendants that the Will dated
\n19.10.1983 was produced before the Tahsildar, Madurai City, for obtaining patta
\nin the name of D4.  But the said Will was not get back from the said Tahsildar.
\nD.W.1 (D2) would admit in his evidence that the said Will was an unregistered
\none.  The said Tahsildar was examined as D.W.2 – Narayanan.  He would admit that
\nhe had issued Ex.B.141 – patta in favour of D4.  But a perusal of Ex.B.141 –
\npatta will go to show that patta for Item No.9 alone was granted for item No.12,
\nwhich is in TS.No.552\/1.  Further, D.W.1 (D2) would also admit in his evidence
\nthat against the order passed in LAOP.No.74 of 1993 under Ex.B.146 there is an
\nappeal pending before this Court.   For Item No.12   D2 has also produced
\nEx.B.151 for change of mutation in favour of D4 and Ex.B.152 is the tax receipt
\nfor Item No.12 and urban land tax is also Ex.B.153.  He would further contend
\nthat his son D4 had executed Ex.B.155 and Ex.B.156, settlement documents in
\nrespect of Item Nos.9 and 12 respectively executed by D4 in favour of him.
\nEx.B.158 and Ex.B.159 are the tax receipts.  In Ex.B.157 is the order of the
\nTahsildar for effecting mutation in respect of Item Nos.9 and 12 in favour of
\nD2.  But it is the definite case of D2 that the plaint schedule Item Nos.9 and
\n12 originally belonged to Punnavana Nadar and that he had bequeathed the plaint
\nschedule item Nos.9 & 12 under the sale deed dated 19.10.1983 in favour of D4.
\nBut the said Will was not produced before the trial Court.  An attempt was made
\nby the defendants to mark a xerox copy of the alleged Will through D.W.2-
\nNarayanan.  But the said xerox copy of the Will was not exhibited before the
\ntrial Court by the learned trial Judge since it was objected to by the other
\nside.   But a reading of the cross-examination of D.W.1 throws no details on the
\nalleged Will.  Further, D.W.2 is not competent to issue any xerox copy for a
\nWill.  D.W.2 has also not stated in his evidence who are all the attestors to
\nthe alleged Will.  D.W.6-Kumaravel (D4), who is the son of D2, has deposed that
\nhis grand-father Punnavana Nadar had executed a Will in respect of Item Nos.9
\nand 12 in favour of him.  But he has also not stated who are all the attestors
\nto the alleged Will.  D.W.5 -P.Ramaraj (D5) has not deposed in the chief-
\nexamination that he has attested the alleged Will executed by Punnavana Nadar.
\nBut he would state in the chief-examintion that he knows about the execution of
\nthe alleged Will in respect of the plaint schedule Item Nos.9 & 12 executed by
\nhis father Punnavana Nadar on 19.10.1983.  Only in the cross-examination of D2
\nto D4 he would depose that his father Punnavana Nadar had executed the Will on
\n19.10.1983 and the scribe of the Will is one Natarajan Pillai.  But the said
\nNatarajan Pillai was not examined as a witness on the side of the defendants.
\nExcept the ipsi-dixit of D.W.5 there is absolutely no evidence to prove that a
\nWill was executed by Punnavana Nadar in favour of D4.  Under Section 68 of the
\nIndian Evidence Act, the Will is to be proved atleast by examining one of the
\nattestors to the Will.  Here absolutely there is no evidence to show who are all
\nthe attestors to the said Will.  It is in evidence that the said Will was
\ndestroyed by the revenue officials  as seen from Ex.B.201.   Even in Ex.B.201
\nthere is no specific averment that the alleged Will was destroyed.  Only in
\nEx.B.200 there is a reference in the enclosure for the return of the document
\nand there is a mention about the Will.  So it cannot be said that plaint
\nschedule item Nos.9 & 12 are the exclusive properties of D4 or D2 sine the
\nalleged Will in favour of D4 was not proved as required under Section 68 of the
\nIndian Evidence Act, it is to be presumed that Item Nos.9 & 12 are the joint
\nfamily properties of late Punnavana Nadar.  Hence, I hold on Point Nos.2 & 3
\nthat the plaintiffs are entitled to 2\/6th  share in the plaint schedule Item
\nNos.9 & 12 also along with Item Nos.1 & 14 to 17.\n<\/p>\n
\t13.Point No.4:- In view of my findings and discussions in the earlier
\nparagraphs I hold on Point No.4 that the appeal is to be allowed and the decree
\nand Judgment of the learned trial Judge in O.S.No.160 of 1995 is to be modified.\n<\/p>\n
\t14.In fine, the appeal is allowed and the decree and Judgment of the
\nlearned trial Judge in O.S.No.160 of 1995 on the file of the Court of
\nSubordinate Judge, Srivilliputtur, is modified as follows:- The plaintiffs are
\nentitled to 2\/6th share in plaint schedule item Nos.1, 9, 12 & 14 to 17  and D5
\nis also entitled to 1\/6th share in the above said properties. Preliminary Decree
\nis passed to that effect.  In respect of other items in the plaint schedule
\nproperties,  the appeal is dismissed, thereby confirming the findings of the
\nlearned trial judge.  No costs. Connected Petitions are closed.\n<\/p>\n
ssv<\/p>\n
To,
\nThe Subordinate Judge, Srivilliputtur.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court P.Ganesan (1St vs Shanmughathai Ammal (D1) on 19 December, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-196764","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nP.Ganesan (1St vs Shanmughathai Ammal (D1) on 19 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/p-ganesan-1st-vs-shanmughathai-ammal-d1-on-19-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P.Ganesan (1St vs Shanmughathai Ammal (D1) on 19 December, 2008 - 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