IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:14.06.2010 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Appeal Suit No.664 of 2002 & Cross Objection No.1 of 2004 1.Annam Ammal 2.Anjugam 3.Selvanayagi 4.Gunasekaran ...Appellants Vs. Selvanathan ... Respondent Prayer: Appeal filed under Section 96 of Civil Procedure Code against the judgment and decree dated 07.3.2002 passed in O.S.No.8 of 2002 on the file of the Additional District Judge, Chidambaram. For Appellants : Mr.S.K.Rakhunathan For Respondent : M/s.Hema Sampath, Senior Counsel for Mr.R.Subramaninan JUDGMENT The defendants 1 to 4 in O.S.No.8 of 2002 on the file of Additional District Judge, Chidambaram are the appellants herein. The plaintiff in the above suit is the respondent in the appeal and the cross objector in Cross Objection No.1 of 2004. 2.The averments made by the respondent/cross objector /plaintiff in the plaint can be stated in brief as follows: Respondent/cross objector /plaintiff Selvanathan is the only son of Mahalinga Padayachi. The first appellant is the mother of the respondent/cross objector/plaintiff' and the appellants 2 and 3 are his sisters. Appellant No.4, Gunasekaran is the husband of Appellant No.3 Selvanayagi. The paternal grandfather of the respondent/cross objector/plaintiff was one Veerappa Padayachi. He got 7 acres of land in a partition with his brothers. After the death of Veerappa Padayachi, his son Mahalinga Padayachi was in possession and enjoyment of the suit properties along with his only son viz., the respondent/plaintiff and they were treated and enjoyed as joint family properties. Certain ancestral lands were sold by Mahalinga https://hcservices.ecourts.gov.in/hcservices/ Padayachi and using the funds raised by the sale of those lands he purchased some properties. The same was done for the purpose of convenient enjoyment. Considerable income was derived from the ancestral properties and the surplus income was utilized for the acquisition of other properties. Since Mahalinga Padayachi was the karta and manager of the joint family, the purchases were made in his name. Though such purchases were made in his name, nevertheless the properties were enjoyed and treated by Mahalinga Padayachi and his son as their joint family properties. All those ancestral properties and properties acquired with the help of the income derived from the ancestral properties have been included in plaint 'A' schedule. Defendants 2 and 3 were married about 30 years and 20 years respectively before the filing of the suit. The husband of the second appellant/second defendant died about 15 years prior to the filing of the suit. However, she continued to live in her husband's house as she inherited about 5 acres of land from her husband. The 4th defendant, the husband of the 3rd appellant is a Police Constable. All the properties described in Suit 'A' schedule were enjoyed by the respondent/plaintiff and his father Mahalinga Padayachi till his death on 02.2.1999. They were living under the same roof and were having common mess. Mahalinga Padayachi died intestate. Before the 16th day ceremony, the appellants 3 and 4 /defendants 3 and 4, harvested, removed and sold about 30 bags of paddy grown in the suit 'A' schedule properties. When the same was questioned by respondent/plaintiff, they proclaimed that Mahalinga Padayachi had left a Will bequeathing entire property to his daughters, namely appellants 2 and 3/defendants 2 and 3. After getting a certified copy of the Will, the respondent/plaintiff came to know that the Will was a fabricated and false one. Mahalinga Padayachi could not have executed such a Will excluding his only son, the respondent/plaintiff and his wife, the first appellant/first defendant. Further more, he could not have executed such a Will as the properties bequeathed under the Will comprises not only the properties purchased by Mahalinga Padayachi but also the ancestral properties even according to the recitals found in the Will. As the suit 'A' schedule properties are the joint family properties belonging to the co-parcenery consisting of Mahalinga Padayachi and his son, the respondent/plaintiff was entitled to ½ share as a coparcener. The remaining ½ share of Mahalinga Padayachi on his death shall devolve equally upon the respondent/plaintiff and the appellants 1 to 3/defendants 1 to 3. Thus, the respondent/plaintiff is entitled to 5/8th share in the suit 'A' schedule properties, whereas each one of the appellants is entitled to 1/8th share. Therefore, the suit has been filed for partition and separate possession of the plaintiff's 5/8th share in the suit 'A' schedule property. The respondent's/plaintiff 's first wife Danalakshmi came from a very decent family and her father gifted about three acres of land to her. The respondent/plaintiff was assisting her in the enjoyment of those properties. The income derived from the said properties of Danalakshmi was utilized for further acquisitions in https://hcservices.ecourts.gov.in/hcservices/ the name of respondent/plaintiff. The properties thus acquired using the income derived from the properties of Danalakshmi are described in plaint 'B' schedule. They do not belong to the joint family. Since the respondent/plaintiff apprehends that the defendants may falsely contend that those properties are also divisible, the said 'B' schedule properties have also been included to enable the Court to pass a decree for partition in respect of the said properties also in the event of Court arriving at a conclusion that they are also the joint family properties. There are debts payable by the family to the Primary Agricultural Cooperative Bank to the tune of Rs.29000/- and payable to the Canara Bank to the tune of Rs.28,000/- besides a sum of Rs.10,000/- borrowed by the respondent/plaintiff from one Ramakrishnan for the expenses of the funeral of Mahalinga Padayachi and a hand loan of Rs.5000/- obtained from one Ramalingam. 3.The suit was resisted by the appellants 1 to 3 / defendants 1 to 3 who filed a common written statement containing the following averments:- The suit is false, vexatious and not maintainable. The Suit for partition will not lie for the entire items of suit properties. The separate and self acquired properties of Mahalinga Padayachi are also added as suit properties in which the respondent/plaintiff has got no share have also been added in the suit properties. The relief of partition shall be available only in respect of ancestral properties of Mahalinga Padayachi. Veerappa Padayachi got only 2 acres of land and not 7 acres as contended by the respondent/plaintif fas his share in the partition with his brothers. He had debts and he was also a judgment debtor, as a result of which Mahalinga Padayachi had to sell some of the properties of Veerappa Padayachi under registered documents in 1943 to discharge those debts and for maintaining the family. The joint family nucleus was very small and the income derived therefrom were hardly sufficient for the maintenance of the family. By sheer hard labour and various dealings in which the plaintiff had no hand or contribution, Mahalinga Padayachi acquired wealth of his own. Therefore, it is false to contend that the entire properties described in 'A' schedule are coparcenery in character as they comprise properties acquired out of the income derived from the ancestral property nucleus. Most of the suit 'A' schedule properties are the absolute and self acquired properties of Mahalinga Padayachi. He took Government Arrack shops, right of fishing tanks and right to toll collect toll in the weekly market in auctions. He also cultivated lease hold lands. With the help of the income thus derived he acquired properties. On the other hand, the respondent/plaintiff did not live up to the expectation and wishes of his parents. He was addicted to drinks and gambling and other vices which made him drive his parents out whereupon his parents lived in a separate house. The respondent/plaintiff was not gifted with a male issue through his first wife Danalakshmi. Selvakumari is their only daughter. As the respondent/plaintiff https://hcservices.ecourts.gov.in/hcservices/ wanted a male heir he ill-treated and drove away Danalakshmi and Selvakumari from the house and married Selvi alias Kalaiselvi of Ramapuram despite the protest made by his parents and his first wife. Kalaiselvi gave birth to a daughter by name Uma. In the above said background, Mahalinga Padayachi, the father of the respondent/plaintiff, distanced himself from the respondent/plaintiff and wanted to give all his properties after his life time to his daughters namely, the appellants 2 and 3. As a result of the said intention, Mahalinga Padayachi made a registered Will while he was in a sound disposing state of mind bequeathing all his properties in favour of the appellants 2 and 3. The Will included the self acquired properties of Mahalinga Padayachi and also his ancestral properties. Even if it is conceded, for argument sake without admitting, that all the 'A' schedule properties are liable for partition, the suit shall be bad for partial partition. Suit 'B' schedule properties are also the properties acquired by the plaintiff from out of the income derived from the joint family properties. It is false to state that suit 'B' schedule properties were purchased out of the income derived from Danalakshmi's properties. In fact Danalakshmi and her daughter were living separately after they were driven out by the respondent/plaintiff. Items 1 to 7, 13 to 23, 25 to 34, 37, 38, 40 to 44 and 46 to 49 of Suit 'A' schedule properties are covered by the Will. The respondent/plaintiff is not entitled to the relief of partition in respect of these items. By virtue of the Will, the appellants 2 and 3/defendants 2 and 3 have become the absolute owners of the same. In any event, if the Court arrives at a conclusion that the Will is not genuine and valid, then the properties purchased by Mahalinga Padayachi should be treated as his self acquisitions in which the respondent/plaintiff and appellants 1 to 3/defendants 1 to 3 shall be entitled to 1/4th share each. For the above said reasons, the suit for partition filed by the respondent/plaintiff should be dismissed with cost. 4.The 4th appellant/4th defendant filed a written statement contending that he was an unnecessary party to the suit and denying the plaint allegations that he, along with his wife harvested, removed and sold 40 bags of paddy within 16 days from the date of death of Mahalinga Padayachi. He has also contended that the Will propounded by the appellants 2 to 3/defendants 2 to 3 is genuine and valid and that the debts mentioned in the plaint are not true and are not binding on the appellants/defendants. Contending that the suit was bad for misjoinder of parties he also pleaded for dismissal of the suit with cost. 5.Based on the above said pleadings, the trial Court initially framed 6 issues, which was later on recasted into 5 issues which are as follows: 1)Whether the suit 'A' schedule properties are the joint family properties? https://hcservices.ecourts.gov.in/hcservices/ 2)Is the alleged Will of Mahalinga Padayachi dated 30.5.1990 genuine and valid? 3)Are the suit 'B' schedule properties joint family properties? 4)Is the plaintiff entitled to 5/8th share in the suit properties? 5)To what other reliefs the plaintiff is entitled? 6.Based on the issues thus settled, the parties went for trial in which two witnesses were examined as Pws 1 and 2 and 14 documents were marked as Exs.A1 to A14 on the side of the plaintiff. Three witnesses were examined as Dws 1 to 3 and 38 documents were marked as Exs.B1 to B38 on the side of the defendants. 7.The learned trial Judge after hearing the arguments advanced on either side and considered the respective pleadings made by the parties and the evidence both, oral and documentary adduced on either side and upon such consideration came to the conclusion that the entire properties described in plaint 'A' and 'B' schedules were the joint family properties in which the respondent herein / plaintiff had got ½ share as a coparcener and the other ½ share belonged to Mahalinga Padayachi. The learned trial Judge also held that the Will dated 30.5.1990 was genuine as the same was made by the testator Mahalinga Padayachi in a sound disposing state of mind. Further, in line with the finding that the entire suit 'A' schedule properties were the joint family properties, the learned trial Judge held that the Will would not affect the ½ share of the respondent herein/plaintiff in all the items of suit 'A' schedule properties as a coparcener. It was also held by the trial Court that not all the items of suit 'A' schedule properties were bequeathed by Mahalingam under the suit Will only items 1 to 7, 13 to 23, 25 to 34, 37, 38, 40 to 44 and 46 to 49 alone were the properties bequeathed under the said Will. Consequently, the Court below held that the other ½ share in the above said items of suit 'A' schedule property shall go to the defendants 2 and 3 as per the Will dated 30.5.1990 of Mahalinga Padayachi. So far as the other items of suit 'A' schedule properties and all the items of suit 'B' schedule properties are concerned, the ½ share of Mahalinga Padayachi as a coparcener was held to devolve equally upon the plaintiff and the defendants 1 to 3 on the death of Mahalinga Padayachi and thus, the plaintiff got 5/8th share and each one of the defendants 1 to 3 got 1/8th share in those properties. 8.Accordingly, the learned trial Judge passed a preliminary decree for partition, declaring the share of the plaintiff in items 1 to 7, 13 to 23, 25 to 34, 37, 38, 40 to 44 and 46 to 49 to be ½ and his share in items 8 to 12, 24,35,36 and 51 of suit 'A' schedule properties and items of 1 to 5 of suit 'B' schedule properties to be 5/8 and directing the division of the said shares from the rest. The Court below also held that the debts stated by the plaintiff in the plaint were not proved to be the debts owed by the joint family. https://hcservices.ecourts.gov.in/hcservices/ 9.Aggrieved by the said preliminary decree passed by the learned trial Judge holding the entire suit 'A' schedule property to be the joint family properties and fixing the plaintiff's share in items 1 to 7, 13 to 23, 25 to 34, 37, 38, 40 to 44 and 46 to 49 to be ½ and in items 8 to 12, 24, 35 ,36, 39, 45, 50 and 51 to be 5/8, the appellants/defendants have filed the present appeal on various grounds set out in the memorandum of appeal. The respondent/plaintiff has filed the Cross objection No.1 of 2004 challenging the finding of the Court below regarding the validity of the Will and consequent fixing of the respective shares of the parties in respect of the suit 'A' schedule properties and also challenging the preliminary decree for partition of suit 'B' schedule properties based on the finding that they were also joint family properties. The finding of the Court below regarding the debts and the failure to incorporate a direction that the defendants should share their liability towards the discharge all those debts proportionate to their share in the family property is also challenged in the cross objection filed by the respondent/cross objector/plaintiff on the ground set out in the memorandum of cross objection. 10.The points that arise for consideration in the appeal and in the cross objection are as follows: "1)Is the finding of the Court below that all items of suit 'A' schedule properties were joint family properties of plaintiff Mahalinga Padayachi correct? 2)Whether the finding of the Court below that the Will dated 30.5.1990 of Mahalinga Padayachi is genuine and valid is erroneous? 3)Whether the shares of the parties in respect of suit 'A' schedule properties declared by the trial Court in its preliminary decree is erroneous? 4)Whether the finding of the Court below that the suit 'B' schedule properties were the properties acquired with the help of the joint family income and thus they are all also the joint family properties is erroneous? 5)What relief the parties are entitled to?" Point No:1 11.The suit was filed by the respondent herein/cross objector claiming that the all the 51 items of properties described in plaint 'A' schedule were the joint family properties belonging to the https://hcservices.ecourts.gov.in/hcservices/ respondent herein/plaintiff and his father Late Mahalinga Padayachi; that the said Mahalinga Padayachi died intestate and that hence he became entitled to 5/8th share in all the suit 'A' schedule properties. According to the respondent herein/plaintiff, the suit 'A' schedule comprises the ancestral properties of Mahalinga Padayachi and the properties acquired by him with the help of the income derived from the ancestral properties. However, he has not identified separately the properties which were ancestral and the properties which were purchased out of the income derived from the ancestral properties. It was his specific contention that Veerappa Padayachi, the paternal grandfather of the respondent herein/plaintiff got 7 acres of land in a partition he had with his brothers and all those 7 acres were inherited by Mahalinga Padayachi from his father Veerappa Padayachi and that thus the same became and in fact were treated as the joint family properties of Mahalinga Padayachi and his son, viz., the respondent herein/plaintiff. It is his further contention that some of the ancestral properties were sold and using the sale proceeds, some of the properties described in plaint 'A' schedule properties were purchased for the purpose of convenient enjoyment and that hence such properties acquired by way of purchase were also the joint family properties of Mahalinga Padayachi and the respondent herein/plaintiff. He has also contended that the other properties in the plaint 'A' schedule were the acquisitions made with the help of the income derived from the joint family properties and hence the entire properties described in plaint 'A' schedule jointly belonged to Mahalinga Padayachi and the respondent/plaintiff as their joint family properties. This contention of the plaintiff was not admitted by the appellants/defendants. But it shall be pertinent to note that they have made an admission that the properties described in plaint 'A' schedule include ancestral properties of Mahalinga Padayachi and the properties purchased by him. However they have not identified separately ancestral properties of Mahalinga Padayachi and the properties purchased by Mahalinga Padayachi. When such is the kind of pleading made by the defendants, there is a possibility of drawing an inference that the deceased Mahalingam never treated the properties purchased by him as his separate property distinct from the ancestral property and was he had fact clubbed them with the joint family property. That is the reason why the appellants/ defendants who claim the properties purchased by Mahalinga Padayachi during his life time to be his self acquisitions not forming part of the joint family properties, are not in a position to separately identify the properties which are ancestral and the properties which are self acquisitions of Mahalinga Padayachi. 12.Keeping the above said facts in mind, let us consider the evidence adduced on both sides in this regard. In line with the plaint pleadings, the respondent herein/plaintiff who figured as PW1 gave evidence to the effect that his paternal grandfather Veerappa Padayachi had got 7 acres of land as his share in the ancestral https://hcservices.ecourts.gov.in/hcservices/ property; that the said property of Veerappa Padayachi was inherited by his son Mahalinga Padayachi; that Mahalinga Padayachi, as Karta of the joint family consisting of himself, his son viz., the respondent herein/plaintiff as coparceners, derived considerable income from the said properties; that Mahalinga Padayachi with the help of that income and also using the funds raised by selling some of the ancestral properties, purchased other properties which are also included in the plaint 'A' schedule and that hence all the properties described in plaint schedule was treated as joint family and enjoyed by himself and his father Mahalinga Padayachi jointly as coparceners. However, the respondent herein/plaintiff was not in a position to produce any document to show that his paternal grandfather Veerappa Padayachi had got 7 acres of land as his share in the ancestral property. The other witness, namely PW2, examined on the side of the plaintiff has not deposed anything regarding the nature of the acquisitions and the source of investment for the acquisitions of the suit properties. He was examined in order to prove the contention of the respondent herein/plaintiff that he had borrowed some amount from him for the joint family expenses. However, there is clear admission on the part of the appellants/defendants that Veerappa Padayachi had got ancestral properties and through him Mahalinga Padayachi inherited the same. But they would contend that only two acres of land and not 7 acres of land was available with Veerappa Padayachi as his share in the ancestral property and that even that two acres of land which came to Mahalinga Padayachi was later on sold for discharging debts of Veerappa Padayachi and also for the family expenses. In this regard, the 3rd appellant/3rd defendant alone gave evidence as DW1. The other two witnesses on the side of the defendants (DW2 and DW3) were examined for proving the Will propounded by the defendants. Their evidence do not lend any help to decide the question what was the extent available with Mahalinga Padayachi as his ancestral property. 13.The only document produced by the plaintiff in this regard is Ex.A5 Adangal extract in the name of Mahalinga Padayachi. The same relates to 1391 - 1408 pasali. The same shall not be helpful to arrive at a decision regarding the extent of land Mahalingam got from his father as ancestral properties. Expect the interested testimony of PW1, there is no other document to show that Veerappa Padayachi got 7 acres of land as his ancestral property in a partition he affected with his brothers. No document has been produced to show that Veerappa Padayachi had been issued patta to the said extent of 7 acres of land. The plaintiff has also failed to produce necessary revenue documents showing the extent of land held by Mahalinga Padayachi as his ancestral properties. Similar is the nature of evidence adduced on the side of the defendants. The 3rd defendant who deposed as DW1 was aged about 40 years on the date of her examination as DW1, viz., 18.2.2002. Therefore, she should have been born in the year 1962. Plaintiff is nearly 17 years elder than the 3rd defendant. He would admit that Veerappa Padayachi died even before the plaintiff https://hcservices.ecourts.gov.in/hcservices/ was born. The age of the plaintiff on the date of plaint is stated to be 57 years. The suit was filed in the year 1999. Therefore, the plaintiff should have born around 1942. As per his own admission Veerappa Padayachi died even prior to his birth. Therefore, he may not have direct knowledge as to what are the properties and how much extent of properties were inherited by Mahalinga Padayachi on the death of Veerappa Padayachi. 14.Similarly, the 3rd defendant who deposed as DW1 also shall not have any personal knowledge regarding the above said particulars. The same is also obvious from her testimony. However the defendants have chosen to produce Exs.B1 to B4 to show that Veerappa Padayachi had been indebted and some of the ancestral properties had to be sold by Mahalinga Padayachi. Ex.B3 is the certified copy of the decree passed in O.S.No.120 of 1938 on the file of District Munsif Court, Chidambaram. The said suit was filed by one Kaliaperumal Pillai against Mahalinga Padayachi represented by his guardian Narayanasami Padayachi as he was then a minor and one Chinnammal, wife of Veerappa Padayachi for the recovery of a sum of 428 Rupees 3 anas 3 naya-paise due on a promissory note. The decree was passed on 27.6.1938. Exs.B1 and B2 are the original sale deeds dated 15.11.1943 to show that some of the ancestral properties were sold for discharging the above said decree debt. Ex.B4 has also been produced to show that funds were raised by mortgaging a property for meeting the marriage expenses of Mahalinga Padayachi. The mortgage was redeemed on 17.6.1949. Of course, this Court can understand the custody of the mortgage deed after discharge with the