IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10/11/2003 CORAM THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN and THE HONORUABLE MR.JUSTICE AR.RAMALINGAM A.S.400 of 1989 Kalidoss Pillai ... Appellant -Vs- 1. Palani Subban Pillai(died) 2. Arunachalam Pillai (died) 3. Sivananda Desigar 4. The Manager, Indian Overseas bank, Thirunallar. 5. The Manager, Food Corporation of India, Thirunallar. 6. Muthu Krishna Iyer 7. Selvaraj 8. Padmavathi 9. Ranjitkumar Satyadoss 10.Mrinalini 11.Salakshmi 12.Saradamani 13.Pushpakanthi 14.Thirumuruga Doss 15.Mrs.A.Rajeswari 16.Mr.A.Natarajan 17.Mrs.Vasanthi 18.Mrs. Saroja 19.Mr.A.Sivarajan 20.Mrs.Manoranjitham 21.Mr.Karthikeyan @ Jayabal 22.Mrs.Mallika ..... Respondents 8 to 14 are L.Rs. of the deceased first respondent. Respondents 15 to 22 are L.Rs. of the deceased second respondent. ... Respondents. Appeal filed against the judgment and decree in O.S.No.9 of 1988 on the file of the Additional District Judge of Pondicherry at Karaikkal, dated 6.1.1989. !For appellant : Mr.K.Yamunan ^For respondents: Mr.T.R.Rajagopalan, Sr.counsel for Mr.S.Rajagopalan, for R8 to 14 Mr.K.Chandramouli, Sr.counsel for Mr.S.Viswanathan for R15 to 22 :JUDGMENT N.V.BALASUBRAMANIAN,J. This is an appeal by the second defendant in the suit. The suit has been filed for partition. The suit was originally instituted on the file of Subordinate Judge's Court, Karaikkal in O.S.No.30 of 1977 and later transferred to the file of Additional District Judge of Pondicherry at Karaikkal. The plaintiff and defendants 1 and 2 are brothers. During the pendency of the suit before the learned Subordinate Judge, Karaikkal, it was represented by the second defendant that there was a compromise and hence, he filed an application to pass a decree in terms of the compromise entered into among the plaintiff and defendants 1 and 2 in the presence of mediators. The plaintiff, however, contended that there was no division and he never singed the memorandum of compromise. Learned Subordinate Judge, after enquiry found that there was a compromise which was reduced into writing and signed by the parties and accordingly, he passed a preliminary decree in terms of the compromise. 2. The preliminary decree passed by the learned Subordinate Judge was the subject matter of appeal before this Court in A.S.Nos.488 and 731 of 1980. Those appeals were heard along with C.R.P.Nos.1299 and 2 581 of 1980, and this Court, by judgment dated 23.9.1987, held that the conclusion of the learned Subordinate Judge that there was a concluded compromise among the parties which was reduced into writing could not stand and in this view of the matter, the judgment and decree of the trial Court was set aside and the matter was remitted to the Subordinate Judge's Court, Karaikkal for fresh consideration. 3. The suit was transferred to the Court of Additional District Judge, Pondicherry at Karaikkal and renumbered as O.S.No.9 of 1988. Learned Additional District Judge has passed a preliminary decree holding that the plaintiff and defendants 1 and 2 would be entitled to 1/3 rd share each in A-schedule properties described in the plaint and in item No.1 of B-schedule and in the movable properties described under schedule C-1 of the written statement. Learned Additional District Judge also held that the plaintiff and defendants 1 and 2 are not entitled to any share in the properties described as C-schedule of the plaint and in the house No.36, Thirunallar Road as they are the exclusive properties of the first defendant. Learned Additional District Judge also held that neither the first defendant,nor the second defendant could claim any share in the properties given to the plaintiff under Ex.A-10. It is against the judgment and preliminary decree passed by the learned Additional District Judge, Pondicherry at Karaikkal, the present appeal has been preferred by the second defendant. 4. Neither the plaintiff, nor the first defendant has filed any appeal, but the second respondent has filed this appeal against the judgment and decree of the learned Additional District Judge holding that the properties set out in the written statement of the defendants 1 and 2 are individual properties of the plaintiff and the defendants 1 and 2 cannot claim any share in the properties. The second defendant has also appealed against the decree holding that the properties standing in the name of the first defendant are absolute properties of the first defendant. His main case is that the rejection of the claim of a share made by the second respondent in respect of the properties set out in the schedule to the written statement is not correct. 5. In our view, it is not necessary to set out the averments made in the plaint in detail, but the necessary facts for the disposal of the appeal are as under:- One Vaithilingam Pillai had three sons the plaintiff being the eldest son and the defendants 1 and 2 are his second and third sons. Vaithilingam Pillai was residing at Thirunallar in Pondicherry. The case of the plaintiff, as seen from the plaint, is that the plaintiff and the defendants 1 and 2 were cultivating lands by joint exertion and they took lands from several persons on lease and out of the income earned by way of joint exertion, they jointly purchased immovable properties from time to time in the joint names of the plaintiff and the defendants 1 and 2. The plaintiff has described those properties as item Nos.1 to 6 in A-schedule to the plaint. They also purchased a tractor with trailor and an oil engine the details of which are given in B-schedule to the plaint. The plaintiff and the defendants 1 and 2 had another brother, by name, Appasamy and he died when he was young at the age of 18. The plaintiff's paternal aunt Sivapakkiathammal gave some cash to the first defendant and Appasamy and Vaithilingam Pillai purchased certain lands in the names of the first defendant and Appasamy which are described in Cschedule to the plaint and it is claimed that since Appasamy died intestate without leaving any heir, the plaintiff would be entitled to 1/3rd share in the 1/2 share owned by Appasamy in C-schedule properties. In the plaint, the plaintiff has set out the details regarding certain misunderstanding that arose between the brothers. The plaintiff has stated that the first defendant was liable to pay for the value of the paddy harvested for the year 1976-77. It is also stated that the first defendant sold a portion of the properties in C-schedule to the third defendant in the suit who is entitled to equitable relief. Other defendants 4 to 7 are not concerned with the properties, but they have been impleaded on the ground that they are occupying the properties. The suit has been filed on the ground that the plaintiff and the defendants 1 and 2 are joint owners of the suit properties and they are in joint possession and hence, the plaintiff claimed the relief of partition and also for a direction to the first defendant to pay the value of the paddy harvested in the year 1976-77 and for other reliefs. 6. The first defendant has filed a written statement. According to him, apart from the plaintiff and the defendants 1 and 2, there was another brother, by name, Paramasivam Pillai and he was living separately during the life time of Vaithilingam Pillai. According to the first defendant, the allegation in the plaint that the plaintiff and the defendants 1 and 2 formed members of the joint family and by their joint exertion, they cultivated the lands and they purchased the properties is false. His case was that they had an ancestral house in the village and the nucleus of the joint family was the earnings of the father and the mother of the parties and the children were educated. According to him, the first defendant took lands on lease from lessors. it is stated that he was a local M.L.A. and the plaintiff has deliberately omitted to mention some of the properties belonging to the joint family. The first defendant included in the written statement certain properties which were not included in the plaint. It is stated in the written statement that four items of the properties mentioned in the settlement deeds made by the plaintiff in favour of his sons, daughter and grandson are all joint family properties and the house was built even during the life of his father. His case was that other properties were acquired mainly from the income of the first defendant who earned income as a contractor and also as a lessee of the lands. It is also stated that C-schedule properties are concerned, they are also to be included in the joint family properties and all the members are entitled to 1/3rd share. His main case was that the plaintiff has omitted to include certain items of the joint family properties and the first defendant has given the details of those properties along with the written statement. 7. A reply statement was filed by the plaintiff on 12.3.1978 wherein the plaintiff has taken a plea that the plaintiff's maternal grandmother, Raja Kannu Achi executed a testament deed constituting the plaintiff as her universal legatee and bequeathed substantial portion of her properties to the plaintiff. According to him, whatever properties which he got otherwise than by his own exertion were only from his maternal grandmother and the same could not part-take the character of joint family properties. According to him, the second defendant was not given any property, but, on the other hand, his paternal aunt, Sivapakiathammal settled certain properties in favour of the first defendant and his deceased brother, Appasamy and those properties were individual properties of the respective parties. His case is that the parties never intended to mingle or pool the properties which they got from their female ancestors. He has denied the averment that the properties were joint family properties. 8. In response to the reply statement, an additional written statement was also filed by the first defendant on 26.7.1978. 9. It is also necessary to refer to the written statement of the second defendant who is the appellant herein. His case is that the plaintiff has not included all the properties belonging to the family. He has stated that the plaintiff was a municipal employee with a meagre salary of Rs.40/- per month. It is stated that out of the joint efforts several properties, which the plaintiff omitted to mention, were purchased in the names of the plaintiff and the first defendant. It is also stated that the house in which the plaintiff and the defendants 1 and 2 were living was constructed during the life time of their father and a lodging house and a pucca building in which Indian Overseas Bank Thirunallar is housed which was was constructed in 1963 has also been omitted. He has also given the list of properties standing in the names of the plaintiff and the first defendant which belong to the joint family and they should be included along with other family properties for partition. 10. The trial Court, on the above pleadings, framed as many as fifteen issues. Learned Additional District Judge, Pondicherry at Karaikkal held that in so far as the Union of Pondicherry is concerned, the Hindu Joint family system was not in vogue, but the system of ' Regime do la Co-proprieate Families' is in existence and the plaintiff and the defendants 1 and 2 are not the members of the joint family. He also held that the documents produced by the plaintiff in Exs.A-1 to A-6 showed that the plaint schedule properties are jointly owned properties of the plaintiff and the defendants 1 and 2. Learned trial Judge also relied upon Ex.A-10 and held that the plaintiff got properties under Ex.A-10 from his maternal grandmother Raja Kannu Achi and the defendants had no right over those properties. He also held that the plaintiff is the absolute owner of the properties covered in Ex.A-10 and neither the first defendant, nor the second defendant had any right in those properties. Learned Judge also found that the first defendant acquired certain properties in his name. So also, the second defendant who is the appellant herein acquired certain properties in his name and the plaintiff and the first defendant were alone the earning members and the second defendant was young boy at the time of acquisition. He also found that there were no ancestral properties and the father of the plaintiff and defendants 1 and 2 died in the year 1941 and there is no evidence to show that the plaintiff acquired the properties in his name from and out of the income of the joint family properties. Learned Judge also found that the paternal aunt Sivapakiathammal had settled certain properties in favour of the first defendant and his brother Appasamy and came to the conclusion that there were no ancestral properties from which the members acquired the properties individually. He therefore held that the neither the plaintiff, nor the second defendant/appellant could have any right in the properties given to the first defendant by his paternal aunt, Sivapakiathammal. He also held that in the property in house No.36, the rice mill and the colony of houses in the South Street, Thirunallar which were acquired under Exs.B-1 to B-4 by the first defendant, the plaintiff and the second defendant can have no share. As far as the properties standing in the name of the plaintiff are concerned, learned trial Judge held that the properties were given in favour of he plaintiff by the testament of Raja Kannu Achi. He also relied upon Ex.A-12, release deed and held that neither the first defendant, nor the second defendant could claim any share in the properties given to the plaintiff under Ex.A-10. He held that the first item of the plaint B-schedule properties was available for partition and the second item had already been sold. He held that the C-schedule properties of the plaint are personal properties of the first defendant. In so far as the properties described in the written statements filed by the first and second defendants are concerned, learned Judge held that A and B schedule properties are individual properties of the plaintiff and the first defendant and therefore, the second defendant could not claim any share in those properties. In so far as the movable properties which are described in C-1 schedule to the written statement are concerned, the trial Judge held that the plaintiff and the defendants 1 and 2 would be entitled to 1/3rd share each which would be ascertained at the time of passing of the final decree. He also held that the plaintiff has not received any amount from the jointly owned properties. He held that the plaintiff is not liable to render any account. He held that the jewellery described in C-schedule to the written statement is not available for partition. In so far as insurance policies are concerned, the trial Judge held that the persons in whose names the insurance policies were taken would be entitled to receive the insurance amount on maturity. As far as the value of the paddy harvested in the year 1976-77 is concerned, learned trial Judge held that neither the plaintiff, nor the second defendant would have any right to claim any share in the paddy harvested by the first defendant in the year 1976-77, as the lease stood in the name of the first defendant and the first defendant alone paid the lease amount to the landlords. In the result, learned trial Judge held that the plaintiff and the defendants 1 and 2 would be entitled to 1/3rd share in A-schedule properties of the plaint and in item No.1 of B-schedule properties of the plaint and in the movable properties described in C-1 schedule to the written statement. The trial Judge also held that the plaintiff and the second defendant are not entitled to any share in the properties described in C-schedule to the plaint and in the house No.36, Thirunallar Road and the parties are not entitled to any share in any other properties. It is against the judgment and decree, the present appeal has been preferred. 11. During the pendency of the appeal, the first respondent/ plaintiff died and his legal representatives were brought on record as respondents 8 to 14. So also, the second respondent/first defendant died pending appeal and his legal representatives were brought on record as respondents 15 to 22. 12. Mr.K.Yamunan, learned counsel appearing for the appellant/ second defendant submitted that the trial Court was not correct in granting the decree for partition in respect of the properties described in A and B schedule to the written statements of the defendants 1 and 2. Learned counsel referred to the averments made in the plaint and submitted that the plaintiff has categorically admitted that there was joint cultivation of the land by the plaintiff and by the defendants 1 and 2 and only by way of joint exertion, the plaintiff and the defendants 1 and 2 purchased the lands in the individual names of the plaintiff and the defendants. He also referred to the averments made in paragraph-6 of the plaint and submitted that the plaintiff and the defendants 1 and 2 were cordial having common mess and the expenses were met from out of the earnings by way of joint exertion. He therefore submitted that when there was joint exertion by the plaintiff and the defendants 1 and 2, the trial Court was not correct in holding that the properties described in the schedule to the written statements filed by the appellant/second defendant and the first defendant are not joint properties. Learned counsel, in his fairness, brought to the attention of this Court the decision of this Court in MANIAMMAL v. MANGALAKSHMY (1986 I MLJ 160) wherein it was held that the joint family system is not applicable to Pondicherry. He submitted that if the property is acquired by the major son during the Regime De la Co-propriate Familiale, it has got to be presumed that he would not have acquired it out of any independent and separate source of his and the property must have got merged with the family patrimony. He also submitted that the plaintiff in his pleadings has admitted that there was joint exertion and the plaintiff was employed as a Secretary in Thirunallar Municipality on a paltry sum of Rs.40/- per month and he was suspended from service in 1969. He further submitted that the trial Court was not correct in placing reliance on Ex.A-10 to come to the conclusion that the properties described in A and B schedule to the written statements were obtained by the plaintiff from his maternal grandmother, Raja Kannu Achi as Ex.A-10 does not contain any list of the properties. After referring to Ex.A-12, learned counsel submitted that Ex.A-12 does not advance the case of the plaintiff in any manner as there is no mention in Ex.A-12 of the properties bequeathed in favour of the plaintiff. Learned counsel also referred to Ex. B-20 and submitted that neither Ex.A-10, nor A-12, nor B-20 sets out any property bequeathed in favour of the plaintiff. Learned counsel further submitted that house properties bearing Door Nos.37 and 38, North Street, Thirunallar were built by the plaintiff's father, Vaithilingam Pillai during his life time and hence, the house properties should be treated as joint family properties. Learned counsel submitted that the plaintiff was born in 1940 and the buildings in Door No.3 7 and 38, North Street, Thirunallar were put up after 1960 and there is absolutely no evidence of his contribution for the construction of the buildings. He strongly placed reliance on the admission made by the plaintiff in the plaint and submitted that there is no document in favour of the plaintiff and the will does not mention any property and in the partition also there is no mention of properties. He also submitted that there is no evidence of enjoyment. He further submitted that Ex.B-16 clearly shows that the patta was joint. He also referred to the account books and submitted that the accounts were maintained and written by the second defendant for the family. He also submitted that there was no independent income for the plaintiff to purchase the properties in his individual name. He referred to the averments made in the plaint wherein the plaintiff has admitted the joint living and joint enjoyment of properties and submitted that the trial Court should have treated all the properties as joint family properties. He therefore submitted that the judgment of the trial Court holding that the properties standing in the names of the plaintiff and the first defendant are their separate properties is not sustainable on the facts of the case. 13. Mr.T.R.Rajagopalan, learned senior counsel appearing for the first respondent/plaintiff referred to the evidence of the second defendant as D.W.2 and submitted that the second defendant in his chiefexamination admitted that the basic document for the house property at Thirunallar is the testament of the year 1925 executed by the second defendant's maternal grandmother, Raja Kannu Achi. He also referred to the evidence of the second defendant wherein he has stated that except the testament of the year 1925, there is no other document to show his title to the suit properties. He also referred to the deposition of the second defendant wherein he has stated that the sites in which the houses in Door Nos.37 and 38 were constructed were not purchased by any one of them and the backyard of the houses were purchased by the first defendant and he did not know in whose name the title for the sites in Door Nos.37 and 38 stand. He also referred to the evidence of the second defendant wherein he has stated that he did not give any money for the purchase of the house properties and he did not have the document of title in respect of the house property in North Street, Thirunallar. He also referred to the various portions of the deposition of the second defendant and submitted that his evidence is clear that he has not discharged the burden cast upon him to show that the the properties were purchased out of joint earnings. He submitted that the second defendant has established that there was no ancestral nucleus in the name of the father of the plaintiff and the defendants 1 and 2. As far as joint exertion is concerned, he submitted that the appellant has not established that there was joint exertion out of the which the plaintiff purchased the properties in his own name. He submitted that the claim made for partition has to fail as the appellant has failed to prove that the properties were purchased out of joint income and in the absence of any proof of availability of income from joint exertion, it is not open to the second defendant to claim that the properties standing in the name of the second defendant are available for partition. He further submitted that the admission made in the plaint was only to the effect that out of joint exertion, the properties were purchased jointly and there was no admission to the effect that the properties were purchased in the individual names of the first defendant or the second defendant out of joint exertion. He submitted that on the facts of the case the claim of the plaintiff has to fail as he has admitted that Ex.A-10 is the basic document of title of the properties standing in the name of the plaintiff. As far as pattas are concerned, he submitted that various pattas do not prove the case of the appellant. 14. Mr.K.Chandra Mouli, learned senior counsel submitted that no property was left by the father on his death and according to him, the properties came only under Exs.A-10 and B-20. He submitted that the properties in door No.37 and 38, North Street, Thirunallar came to the hands of the plaintiff under Ex.A-10. He referred to the evidence of D.W.2 and submitted that the father did not gift any property and the properties covered in Exs.A1 to A-6