IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.06.2008 CORAM : THE HON’BLE MR. JUSTICE S.TAMILVANAN A.S.No.931 of 1997 A.S.No.26 of 2001 and Tr.A.S.No.265 of 2007 A.S.No.931 of 1997 S.Muthu .... Appellant/Plaintiff vs. 1. R.Chandramohan 2. P.Thangaraju .... Respondents/Defendants Appeal filed against the Judgment and Decree, dated 29.08.1997 made in O.S.No.8662 of 1995 on the file of the VII Assistant Judge, City Civil Court, Chennai. For Appellant : Mr.A.Abdullah Ahamed For Respondents : Mr.S.Natanarajan for R1 A.S.No.26 of 2001 S.Muthu .... Appellant/Plaintiff vs. 1. R.Chandramohan 2. R.C.Sivakumaran .... Respondents/Defendants Appeal filed against the Judgment and Decree, dated 28.06.2000 made in O.S.No.2967 of 1998 on the file of the VII Additional Judge, City Civil Court, Chennai. For Appellant : Mr.A.Abdullah Ahamed For Respondents : Mr.S.Natanarajan for R1 https://hcservices.ecourts.gov.in/hcservices/ Tr.A.S.No.265 of 2007 R.Chandramohan .... Appellant/Ist Defendant vs. 1. S.Muthu 2. P.Thangaraju .... Respondents/Plaintiff & Defendant. Appeal filed against the Final Decree, dated 01.04.2005 made in I.A.No.959 of 2002 in O.S.No.8662 of 1995 on the file of the VII Assistant Judge, City Civil Court, Chennai. For Appellant : Mr.S.Natanarajan For Respondents : Mr.Abdullah Ahamed for R1 COMMON JUDGMENT The appeal in A.S.No.931 of 1997 is preferred by the plaintiff in O.S.No.8662 of 1995 against the Judgment and Decree, dated 29.08.1997 made in the said suit on the file of the VII Assistant Judge, City Civil Court, Chennai. 2. The appeal in A.S.No.26 of 2001 is preferred by the plaintiff in O.S.No.2967 of 1998 against the Judgment and Decree, dated 28.06.2000 made in the said suit, on the file of the VII Additional Judge, City Civil Court, Chennai. 3. Tr.A.S.No.265 of 2007 is preferred against the Final Decree, dated 01.04.2005 made in I.A.No.959 of 2002 in O.S.No.8662 of 1995 on the file of the VII Assistant Judge, City Civil Court, Chennai. The appellant herein was the first defendant in the suit in O.S.No.8662 of 1995. 4. In all these appeals, for the sake of convenience, the appellant in A.S.No.931 of 1997 is referred to as appellant and the first respondent in A.S.No.931 of 1997 is referred to as first respondent. 5. The suit in O.S.No.8662 of 1995 is the first suit filed by the appellant in A.S.No.931 of 1997 and the appeal in A.S.No.26 of 2001 is also preferred by the appellant against his brother Chandramohan and another, seeking partition of half share in the schedule mentioned property therein. In the schedule of properties, there are six items and out of which, the first item is a residential house, situated in Sillukkuvarpatti village, Nilakottai Taluk, Dindugal District. The second item is a wet land with a well, https://hcservices.ecourts.gov.in/hcservices/ pumpset, which is being cultivated by the second respondent in the appeal. Item 3 to 6 are the properties situated at Chennai. According to the appellant / plaintiff, the first and second items of properties, situated at Sillukkuvarpatti village are the ancestral properties of himself and his brother, the first respondent herein and item Nos. 3 to 6 are the properties purchased by the first respondent from and out of the income of the ancestral properties at Chennai. 6. According to the first respondent, when the appellant was a four year old boy, his father and mother expired and the first respondent was at the age of 12 years. When the first respondent was 15 years old, he came to Madras and did coolie work at the flower market, Chennai, and out of his own income and hardwork, started business at flower market, since the property at Sillukkuvarpatti was already mortgaged by his father, for a sum of Rs.350/- to one Kuruvammal at Sillukkuvarpatti and the agricultural lands were enjoyed by the said Kuruvammal till 1960. After 1960, since the said Kuruvammal told the first respondent to redeem the mortgage, the first respondent approached the second respondent and redeemed the mortgage from Kuruvammal, after getting money from the second respondent and thereby transferred the mortgage in favour of the second respondent. Out of his hard work, he brought up the appellant and provided education up to B.A., and also a law degree, so as to get a job in the State Secretariat, Chennai, and also arranged his marriage and that the appellant and the first respondent were living separately. 7. The first respondent has further stated that his wife, Mrs.M.Kamatchiammal, purchased the property mentioned as Item Number 4 by her earning in vegetable vending business and the third and sixth items of properties were purchased jointly by himself and his uncle, K.Alagarsamy from and out of the income of their partnership business. The fifth item of property was purchased in the name of his son as self-acquired property and therefore, the appellant is not entitled to claim any share in items 3 to 6 of the schedule mentioned properties, as the same were not the joint family properties of the appellant. 8. On the side of the appellant, he was examined as P.W.1. A Copy of the partition agreement between the appellant and the first respondent, dated 02.03.1994 was marked as Ex.A.1 and a copy of the legal notice sent to the first respondent was marked as Ex.A.2. On the side of the first respondent, he himself was examined as D.W.1 and no document was marked on the side of the respondents. The trial court, considering the oral and documentary evidence and also the arguments advanced by both sides, held that the appellant / plaintiff was entitled to half share in items 1 and 2 of the schedule of https://hcservices.ecourts.gov.in/hcservices/ property. Accordingly,a preliminary decree for partition was passed. With regard to item 3 to 6 of the schedule of property, the claim of the appellant was negatived by the court below. Aggrieved by which, this appeal in A.S.No.931 of 1997 has been preferred by the plaintiff in the suit. 9. The aforesaid appellant / plaintiff, Muthu has filed another suit in O.S.No.2967 of 1998 against the first respondent and his son for partition and separate possession, by setting out two other items of properties. According to the appellant / plaintiff, the first respondent, out of the income of the joint family property, purchased two shops at Kamarajar flower market, Koyambedu, Chennai, one in the name of the first respondent and the other item in the name of the second respondent in this appeal. 10. The respondents herein contended that the aforesaid flower shops were purchased out of their own income and hard labour and that the said properties were not joint family properties, hence, the appellant is not entitled to partition in the said properties. The trial court held that the properties described in the plaint schedule are self-acquired properties of the respondents and hence, the appellant has no right in the said property, and accordingly, the suit was dismissed. Aggrieved by which, the plaintiff in the suit has preferred the appeal in A.S.No.26 of 2001. 11. Tr.A.S.No.265 of 2007 has been preferred against the final decree, dated 01.04.2005 made in I.A.No.959 of 2002 in O.S.No.8662 of 1995 on the file of the VII Assistant Judge, City Civil Court, Chennai, by the first defendant in the suit. Pursuant to the preliminary decree, dated 29.08.1997, in order to divide the properties by meets and bounds, an Advocate-Commissioner was appointed to inspect the properties with the help of a Surveyor. Based on the Commissioner's Report, under Order 26 Rule 18 CPC, final decree was passed by the court below. Aggrieved by which, the first defendant in the suit has preferred this Tr.A.S.No.265 of 2007, challenging the final decree passed by the court below. 12. In the grounds of appeal, the appellant / first defendant has stated that under the guise of carrying out amendment for incorporating the boundaries of Item No.2, the plaintiff has added different new properties, which were not stated already in the plaint and that the objection raised by the appellant was not considered by the court below. With the above averments, the first defendant in the suit, as appellant has pleaded for allowing the appeal and to set aside the final decree passed by the trial court. 13. The points for determination in these appeals are https://hcservices.ecourts.gov.in/hcservices/ 1. Whether the appellant / plaintiff is entitled to partition and separate possession of item 3 to 6 of the plaint schedule mentioned properties in O.S.No.8662 of 1995, relating to A.S.No.931 of 1997 ? 2. Whether the final decree, dated 01.04.2005 passed by the trial court has to be set aside on the grounds raised by the appellant in Tr.A.S.No.265 of 2007 ? 3. Whether the appellant herein is not entitled to claim partition and separate possession of the schedule mentioned property in O.S.No.2967 of 1998, relating to A.S.No.26 of 2001, as decided by the trial court ? 14. Mr.Abdullah Ahamed, learned counsel appearing for the appellant in A.S.No.931 of 1997 submitted that the appellant herein is entitled to partition for the entire six items of properties, specified in the schedule of the plaint in O.S.No.8662 of 1995. According to him, there is ancestral nucleus to decide the properties specified in item Nos. 3 to 6 and hence, the suit could have been decreed, as prayed for and the trial court should not have allowed the suit in part, holding that the appellant is entitled to partition only for items 1 and 2 of the schedule mentioned properties. 15. Per contra, Mr.S.Natanarajan, learned counsel appearing for the first respondent would contend that items 3 to 6 of the schedule mentioned properties are self-acquired properties, purchased at Chennai, only by the hard earning of the first respondent and his family members and the appellant is nothing to do with the same. Even he did not know the details and other particulars of the said properties, that is why, the appellant had furnished incorrect particulars about the said properties, which are available at Chennai, though the properties 1 and 2 are far away from Dindugal District, where the ancestral properties are available. The learned counsel further contended that there is no ancestral nucleus to decide item Nos. 3 to 6 of the schedule mentioned properties as joint family properties of the appellant. He has further contended that the first item of property is at Sillukkuvarpatti village, Nilakottai Taluk, it being an ancestral house left by the father of the appellant and the first respondent, the appellant is entitled to half share in the property, for which, the first respondent has no objection. 16. According to the learned counsel for the first respondent, so far as the second item of property, wet land is concerned, the appellant as plaintiff has not furnished any details, he has simply stated as 10 acres of land with coconut trees being cultivated by the second respondent, without any details and in the cross-examination, as P.W.1, the appellant has stated that the extent of land was three https://hcservices.ecourts.gov.in/hcservices/ acres, however, without considering the same, for the alleged 10 acres of land stated in the plaint schedule, the trial court has passed preliminary decree, based on which Advocate-Commissioner was appointed, which is not legally sustainable. 17. In these appeals, both the parties have admitted that the appellant and the first respondent are brothers and the first item of property, situate at Sillukkuvarpatti village is their ancestral house and therefore, there is no dispute with regard to the half share, claimed by the appellant and the final decree was passed, based on the Commissioner's Report with regard to the house-property at Sillukkuvarpatti village. So far as the second item of the schedule of property is concerned, the appellant has stated as 10 acres of wet land in the said village, without furnishing other details, such as survey numbers and boundaries. However, in his oral evidence he has stated that the extent was about three acres. The first respondent, who was examined as D.W.1 has stated that the second item of property is not an extent of 10 acres, however, he has admitted that the appellant is entitled to get partition in the first and second items of properties. 18. After the preliminary decree, the Advocate- Commissioner, inspected the properties and filed his report, dated 06.02.2003 with a sketch, wherein, he has stated that the first item of property, house building, measuring about 1156 sq.ft with four boundaries. As per the Commissioner's Report, one Lakshmiammal, D/o Raman Chettiar was residing in the house, since December 2002 as tenant and paying a monthly rent of Rs.200/-. As per the Commissioner's Report and plan, the trial court allotted "A" portion, an extent of 578 sq.ft to the first respondent and "B" portion, a similar extent to the appellant herein. So far as the second item of property is concerned, the Advocate-Commissioner could not have identified the property, accordingly, he submitted his interim report. Again the Advocate- Commissioner was directed to inspect the property to effect the division of the property and accordingly, he again inspected the property and filed his final report on 06.06.2004. With the assistance of surveyor, the Advocate-Commissioner identified the lands in S.Nos.136, 137/6, 137/7, 137/8 and 137/9, a total extent of 6 acres and 16 cents. 19. The first respondent has stated in his written statement that the appellant was a four year old boy and the first respondent was 12 years old, when their parents died and the ancestral land was under mortgage. The father of the appellant and the first respondent herein, had mortgaged the property for a sum of Rs.350/- to one Kuruvammal, w/o of Subban Chettiar at Sillukkuvarpatti. The said Kuruvammal enjoyed the dry land and received the income from the land up to 1960 in lieu of interest. Since she was compelling to redeem https://hcservices.ecourts.gov.in/hcservices/ the mortgage, the first respondent approached the second respondent to transfer the mortgage in his favour, accordingly, the second respondent paid Rs.350/- to the said Kuruvammal and transferred the mortgage in favour of the second respondent in A.S.No.931 of 1997 and therefore, according to the first respondent, there was no income from the first and second items of property. Strangely, the first respondent had also not stated anything about the extent of the second item of property in his written statement. He has simply denied that the extent of the second item of property was not 10 acres of land. The Advocate-Commissioner in his final report, dated 06.06.2004 has stated that the first respondent had produced a copy of the mortgage deed, dated 11.04.1949 and according to the Advocate- Commissioner, an extent of 25 cents in S.No.136 and 42 cents in S.No.137 and a total extent of 67 cents, had been mortgaged by Ramasamy Chettiar, father of the appellant and the first respondent herein, in favour of one Kuruvammal. 20. The Advocate-Commissioner has further stated that the first respondent told that the rest of the properties in item 2 of the schedule had been purchased by the first respondent, under six separate sale deeds, dated 30.11.1956, 27.07.1968, 30.09.1969, 20.11.1970, 04.10.1971 and 13.06.1983. According to the Advocate- Commissioner, the appellant produced copies of five sale deeds, dated 27.07.1968 (Doc.No.1909/1968), 30.09.1969 (Doc.No.2473/1969), 20.11.1970 (Doc.No.2587/1970), 04.10.1971 (Doc.No.4000/1971) and 13.06.1983 (Doc.No.1283/1983) and from the copies of those sale deeds, it was learnt by the Advocate-Commissioner that the first respondent, Chandramohan had purchased an extent of 1 acre and 38 cents in S.No.136 and 3 acres and 78 cents in S.No.137 from various persons and the land surveyor also provided a certified copy of the land map for the said lands, relating to S.Nos.136, 137/6, 137/7, 137/8 and 137/9. With the help of the land surveyor and the documents, the Advocate-Commissioner, measured an extent of 6 acres and 16 cents. Strangely, the aforesaid documents were not marked before the trial court. Only the appellant and the first respondent were examined as P.W.1 and D.W.1, apart from marking an unregistered partition agreement, dated 02.03.1994 between the said parties as Ex.A.1 and the copy of the legal notice sent by the appellant to the first respondent, dated 09.05.1995 as Ex.A.2. 21. The Advocate-Commissioner's final report, dated 06.06.2004 would clearly establish that a total extent of 67 cents in S.Nos.136 and 137 had been mortgaged by Ramasamy Chettiar, father of the appellant and the first respondent to Kuruvammal and the lands specified by the Advocate- Commissioner were purchased by the first respondent. However, the evidence would show that they were purchased out of the income of the ancestral property, since the properties were acquired in the same village and there is no satisfactory explanation from the first respondent to show that a portion of the https://hcservices.ecourts.gov.in/hcservices/ second item of properties were acquired by his self-earning. On the facts and circumstances, I concur the view of the trial court that there is ancestral nucleus, so far as item 2 of the schedule of property is concerned. So far as item 3 to 6 of the properties are concerned, it has been established that they are self-acquired properties of the first respondent and others at Chennai. 22. In Tr.A.S.No.265 of 2007, the first respondent has challenged the final decree, dated 01.04.2005 passed in I.A.No.959 of 2002 in O.S.No.8662 of 1995. The trial court, by the final decree, dated 01.04.2005, passed under Order 26 Rule 18 CPC, has stated that as per the custom and usage prevailing, in the area, out of the two equal portions specified as "A" and "B", "A" portion of the first item of the property on the North and West portion was allotted to the first respondent, being the elder brother. Similarly, "B" portion on the South and East was allotted to the appellant, as younger brother. It is seen from the order that the Advocate-Commissioner has divided the property equally and as per the custom prevailing, the Western and Northern portion was allotted to the elder brother and the Southern and Eastern portion was allotted to the younger brother and the custom has not been disputed. The plans, relating to the property marked as Exs.C.2 and C.5 were also ordered to be attached to the final decree. 23. So far as the second item of the suit property is concerned, based on the Advocate-Commissioner's Report and the evidence, an extent of 144 cents wet land in S.No.136 of Sillukkuvarpatti Village with specific four boundaries and an extent of wet land, measuring about 190 cents and a well pumpset, pumpset room and trees thereunder in S.No.137/9 at Sillukkuvarpatti Village with specific four boundaries have been allotted to the appellant's half share, pursuant to the preliminary decree passed by the court below. 24. The first respondent herein has not disputed that the first item of property, the residential house and land under the cultivation of the second respondent at Sillukkuvarpatti Village were the ancestral properties and the appellant and the first respondent are entitled to half share each in the property. However, as per the plaint, the appellant has stated the extent of the second item of property as 10 acres of land, he has not furnished the four boundaries, survey numbers and other details of the second item of the schedule of property, hence, pursuant to the preliminary decree, Advocate-Commissioner, who inspected the property could not divide the second item of property, as per his interim report, dated 06.02.2003. However, after due notice, he inspected the properties in the presence of both the parties with the help of surveyor, after perusing the copies of the documents produced by both sides and sketch produced by the Surveyor. https://hcservices.ecourts.gov.in/hcservices/ 25. As per his final report, dated 06.06.2004, the Advocate- Commissioner measured the second item of property, a total extent of 6 acres and 16 cents. According to the learned counsel for the first respondent, except 67 cents of land mortgaged originally to Kuruvammal, the remaining properties in Item 2, measured by the Advocate-Commissioner, with the help of Surveyor, were the properties acquired by the first respondent. The properties are situated in the same village. There is no acceptable evidence to show that the said properties were acquired by the self-earning of the first respondent. The properties acquired at Sillukkuvarpatti Village in the name of the first respondent would clearly show that there was ancestral nucleus. The first respondent, being the elder brother, who was also manager of the joint family properties has acquired these properties. In the absence of acceptable evidence to show that the properties are self-acquired properties of the first respondent, the Court has to decide that the same were joint family properties and not the self- acquired properties of the first respondent, on the facts and circumstances of this case. 26. It is an admitted fact that the appellant herein moved the trial court by filing Interlocutory Application in I.A.No.959 of 2002 for passing a final decree in respect of items 1 and 2 of the suit property. In order to demarcate the properties into two equal shares, the trial court appointed Advocate- Commissioner, who after inspecting the property expressed his inability to demarcate item 2 of the property, the same was also reported to the trial court. Subsequently, the appellant herein filed I.A.No.4176 of 2003 for amendment of Item No.2 of the property consisting of wet land, measuring about 144 cents in S.No.136 and wet land measuring about 47 cents in S.No.137/6, an extent of 45 cents wet land in S.No.137/7, wet land measuring about 190 cents and well pumpset, pumpset room and trees thereon in S.No.137/8, an extent of 40 cents of wet lands, well and trees etc in S.No.137/9. All these properties are admittedly located at Sillukkuvarpatti Village, Nilakottai Taluk. 27. The trial court after hearing both sides, allowed the application for amendment filed by the appellant. Against which, the first respondent herein preferred CRP (PD) No.1917 of 2004. Considering the facts and circumstances, this Court by order, dated 17.02.2005, dismissed the Civil Revision Petition preferred by the first respondent, holding that the appellant herein after collecting details, had filed the application to amend the suit property, Item No.2, which had not introduced a new cause of action, but only in order to furnish details of Item No.2 of the property, such details were required for effecting partition. Again the first respondent herein preferred SLP before the Hon'ble Apex Court, admittedly, the same was also dismissed. In such circumstances, I am of the view that there is no error or infirmity in the final decree, dated 01.04.2005 passed by the court below, pursuant to the preliminary decree already https://hcservices.ecourts.gov.in/hcservices/ passed. 28. In the appeal in A.S.No.931 of 1997, the appellant has pleaded partition even in the properties specified as Item Nos. 3 to 6, which was negatived by the trial court. Admittedly, these properties are situated at Chennai, far away from Sillukkuvarpatti Village of Dindugal District. According to the learned counsel for the first respondent, it has been established that items 3 to 6 of the schedule mentioned properties are not joint family properties of the appellant. 29. In the decision, Mudigoda vs. Ramchandra, reported in AIR 1969 SC 1076, the Full Bench of the Hon'ble Apex Court has held as follows : "The case of the appellants was that these lands were self-acquisition of Goudappa, but the respondents contended that they were joint family properties. The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims