In the High Court of Judicature at Madras Dated:10.08.2007 Coram The Honourable Mr.Justice P.JYOTHIMANI Appeal Suit No.768 of 1985 and 974 of 1986 and CMP.Nos.1559 and 1623 of 1998 .. A.S.No.768 of 1985: 1. K.S.Ramanathan (died) 2. R. Ramamurthi ..Appellant R2 in AS.768/85 tranposed as 2nd Appellant as LR of the deceases sole Appellant as per order of court dated 6.9.96 in CMP.11380/95. ..vs.. 1. R.Jayaraman 2. R.Seetharaman 3. Janaki 4. Mohammed Sheriff Rowther 5. Vasantha 6. K.Manoharan 7. Ganesan ..Respondents A.S.No.974 of 1986: 1.R. Ramamoorthi 2.Vasantha .. Appellants vs. 1. R.Jayaraman 2. K.S. Ramanathan (died) 3. R.Seetharaman 4. Janaki 5. Mohammed Sheriff Rowther 6. K.Manoharan 7. Ganesan .. Respondents https://hcservices.ecourts.gov.in/hcservices/ Appeal Suits filed under Section 96 of Civil Procedure Code against the judgement and decree dated 24.07.1985 made in O.S.No.20 of 1982 on the file of Subordinate Judge, Pattukottai. For Appellants : Mr.V.T. Gopalan,Sr.Counsel in both appeals for Mr. J. Srinivasa Mohan For Respondents : Mr.G. Rajagopalan, Sr.Cousnel in both appeals for Mr. Sundaresan for R1 Mr. S. Thiruvenkataswami for R4 Mr. R. Seetharaman (party-in-person) R3 to R7 given up in AS.768/85 No appearance for R5 to R7 in AS.974/86 .. COMMON JUDGMENT The first defendant in the suit is the appellant in A.S.No.768 of 1985 and the defendants 2 and 6 in the suit are the appellants in A.S.No.974 of 1986. The first respondent has filed the suit in O.S.No.20 oF 1982 on the file of Subordinate Judge, Pattukottai praying for a preliminary decree for partition of 1/4th share in the properties mentioned in Schedules 1 to 9, or alternatively prayed for a decree for partition of 1/2th share in Schedule 1, 2, 3, 8 and 9, with reference to good and bad soil, by metes and bounds. That apart, he has also claimed partition of 1/5th share in the jewels or their value in 10th schedule. 2. The plaintiff's case was that the plaintiff and the defendants 2 and 3 are the undivided sons of the first defendant and they constituted a Hindu Joint Family owning joint family properties described in Schedules 1 to 9, besides other properties which were already sold. According to the plaintiff, the first defendant's father, viz., Chinnaiah Thever and his brother Kutty Thever were living at Ceylon doing money-lending, pawn broker and General Merchant business. The said Kutty Thevar has settled his claim with his brother, Chinnaiah Thever and returned to India and thereafter, Chinnaiah Thever was solely entitled to the business. After the said Chinnaiah Thever returned to India, the first defendant, being his son was managing the business and ultimately, the business came to be wound up. https://hcservices.ecourts.gov.in/hcservices/ 2 (a). It is the plaintiff's case that Chinnaiah Thever along with his sons, viz., first defendant and one Karuppaiah Thever were living as joint family along with his brother, Kutty Thever and his sons. In 1955, the properties in India were divided between the branches of Chinnaiah Thever and Kutty Thever by way of family arrangement. In the said partition, the said Chinnaiah Thever did not retain any share, but agreed for the division of properties into two equal shares by the branches of Chinnaiah Thever and Kutty Thever and he was satisfied with a half share of properties given to him being divided between his two sons, viz., first defendant and Karuppaiah Thever, since Chinnaiah Thever was getting pension of Rs.150/- from Ceylon. Therefore, by virtue of family arrangements certain items of suit properties were allotted to the first defendant family, while some other properties were allotted to the first defendant's brother Karuppaiah Thevar family and also to Kutty Thevar family. The plaintiff understands that by a partition deed dated 21.10.1959 the properties allotted to the share of family of first defendant were divided between the defendants 1, 2 and 3 for land ceiling purposes to which the plaintiff was not a party. According to the plaintiff, there was no partition and the division was only between the first defendant and his brother and Kutty Thevar. According to the plaintiff, in spite of the said partition dated 21.10.1959, the plaintiff and defendants 1 to 3 continued to be members of the Hindu Coparcenary. The plaintiff would state that the first defendant was maintaining the properties even after the partition dated 21.10.1959. The plaintiff would also state that there was an exchange of some of the properties allotted to his paternal uncle, Karuppaiah Thevar with the properties of first defendant family and in such documents also, all the members have joined in the execution. 2 (b). It is the further case of the plaintiff that between the first defendant family and his brother Karuppaiah Thevar's family certain properties were kept joint which were described as schedule- Q in the said partition deed. In a later division between the first defendant and his brother Karuppaiah Thevar, house properties at Pattukkottai were allotted to the first defendant's family while the house at Periyanayakipuram was given to the fist defendant's brother Karuppaiah Thevar towards his share. The house which was allotted to the first defendant's family was sold by him for the family benefits, viz., for rice mill and paddy business and putting up a house at Avanam and the agricultural lands were also sold for the business and for purchasing other properties, apart from construction of house. All the said purchases were made in the name of the first defendant as well as in the names of plaintiff and defendants 2 and 3 from and out of joint family income and from the money sent by the plaintiff and third defendant. According to the plaintiff, the first defendant has been completely maintaining the https://hcservices.ecourts.gov.in/hcservices/ properties along with the second defendant who was living with him. The plaintiff states that the first defendant being the father of the plaintiff, received the presents given by the father-in-law of the plaintiff as well as the 2nd defendant and 3rd defendant who has also sent money from and out of his earning as an Engineer. The plaintiff has sent Rs.27,000/- to the first defendant for the joint family funds. 2 ( c ). The plaintiff would also state that as per the custom in the family, on the occasions of ear-boring ceremony and other important functions, the relatives and friends used to present cash called, "moi" and the same were received subject to repayment whenever similar functions were celebrated by the persons who made the cash presents. By the celebration of ear-boring ceremony of the second defendant's son, the first defendant has received cash of Rs.1,35,000/- and the same was retained for the joint family benefits. According to the plaintiff, the first defendant as the manager of the family was also having an agency with Food Corporation of India for purchasing paddy and he was having licences for dealing with wholesale paddy and rice and the income from the said business was also treated as joint family property. The plaintiff would also state that the first defendant has obtained Power of Attorney from the plaintiff and the 3rd defendant as they were away from the village so as to bind them in all the family dealings. The plaintiff has been working as a Mechanical Engineer in B.H.E.L. Since his service is required by the Malaysian Government, he is at present at Malaysia. According to the plaintiff, the first defendant was arranging to give major portion of properties to the second defendant by misusing the Powers given to him. Therefore, the plaintiff has revoked the Power on 18.7.1981 after coming to India. Likewise, the third defendant also revoked the Power. According to the plaintiff, this conduct has provoked the first defendant to create various records prejudicial to the interests of the plaintiff and the 3rd defendant. The plaintiff has demanded partition from the first defendant through mediators on 9.3.1982 which was evaded by the first defendant. Therefore, the plaintiff has filed the present suit for partition. He would also state that the plaintiff's mother died in December, 1977 and she was having jewels as mentioned in 10th Schedule. According to the plaintiff, the properties are inherited by the plaintiff and defendants 1 to 4, the 4th defendant being his sister. The plaintiff also states that for any reason, if the Court holds that the plaintiff was not a party to the partition and he should be construed as a coparcener along with the 1st defendant, the plaintiff is entitled to a half share in respect of schedule 1 to 3, 8 and 9 properties, besides 1/5th share in schedule-10. 3. The first defendant has filed a written statement. While denying various allegations raised by the plaintiff, the first https://hcservices.ecourts.gov.in/hcservices/ defendant who is the father of the plaintiff, would state that the claim of the plaintiff is contradictory. While the plaintiff admits in one place that Kutty Thevar has settled all his claims with Chinnaiah Thevar at Ceylon and came to India, he has chosen to give a contradictory version that Chinnaiah Thevar and his sons were living as members of joint family along with his brother Kutty Thevar. While it is true that there was a family arrangement in the year 1955 and properties were divided between the branches of Chinnaiah Thevar and Kutty Thevar, it is denied that the land reforms registration is the basis for such family arrangement. It is also denied that there was no division as per family arrangement. The first defendant also denies the allegation that the plaintiff and defendants 1 to 3 constituted a coparcenary. It is the case of the first defendant that the very fact that later there was a division between the first defendant and his brother shows that there was a clear division of properties. The allegation that the income from properties was used for the rice mill and paddy business is also denied. It is also denied that the plaintiff and the 3rd defendant have sent moneys and the properties were purchased in the name of the plaintiff and the defendants 2 and 3 with the joint family income. 3 (a). The first defendant also denies that the plaintiff has sent Rs.27,000/-. Apart from denying the allegation regarding "moi", the allegation that the first defendant continued to be the manager of the joint family is also denied. The first defendant states that he has been working in Ceylon prior to 1944 and earned substantially and in 1948 when he visited India, he invested in a banks in India, a sum more than Rs.10,000/- under fixed deposit receipts. In the year 1947, the first defendant's father has transferred his interest in a partnership firm for a consideration of Rs.8,000/- and partnership was reconstituted superseding the earlier partnership by dropping the father's name, viz., Chinnaiah Thevar. The first defendant had been visiting India frequently bringing moneys and between 1949 and 1961, the first defendant brought more than Rs.22,891/- and the same was endorsed in the passport also. 3 (b). It is the case of the first defendant that the father of the first defendant, viz., Chinnaiah Thevar had only a site as his ancestral property and there was no ancestral nucleus to give rise to any income therefrom. When the father of the first defendant returned to India in or about 1948, the plaintiff was just born and the second defendant was about 4 years old and the third defendant was 2 years old. The first defendant states that to avoid any difference between himself and his brother Karuppaiah Thevar, he contented himself with whatever share was allotted to him and the father of the first defendant was well aware that there was no ancestral property and in fact before 1947 repatriation he allowed https://hcservices.ecourts.gov.in/hcservices/ his brother Kutty Thevar to take away his properties leaving the remaining to the first defendant and his brother. According to the first defendant, that was the conscientious conduct of the first defendant's father to disclaim any share for himself. Therefore, the allegation that there was ancestral property of Chinnaiah Thevar available in the hands of the first defendant is false. At the time when the written arrangement was made in the year 1955, the plaintiff was a minor of 7 years old and the first defendant was acting as patria potestas to represent the plaintiff as his father and he had every right to agree for allocation to the defendants 2 and 3. According to the first defendant, the properties are neither ancestral, nor coparcenary or joint family properties and they are separate self-acquired properties of the first defendant. Therefore, sons of the first defendant have no manner of right to claim share. Since the third defendant was educated at Trichy, he was provided with a suitable lesser share and for the education of the third defendant at Trichy, the first defendant had to sell a small item of third defendant's share on 3.7.1961 for his educational expenses and he was also subsequently educated at St.Joseph College at Trichy and Engineering College at Coimbatore with considerable costs and strain. Similarly, the first defendant states that the plaintiff was educated at Pudukkottai and P.S.G. College, Coimbatore and his educational expenses were made only from and out of the allotment made to him under the arrangement stated. 3 (c). According to the first defendant, the plaintiff and the third defendant have no justification to protest against the family arrangement arrived at and they have no right to unsettle the settled. The first defendant also states that he was not getting money from anyone including his sons. It is the first defendant who has purchased lands at Lakshminarasimhapuram and Periyanayakipuram villages in the name of third defendant under registered sale deeds dated 13.10.1978 and 22.6.1978. The first defendant has purchased on 22.3.1979 only one item in schedule-8 in the name of the plaintiff. That apart, some lands in Perianayagipuram village and Lakshminarasimhapuram village were also purchased by the first defendant in favour of the plaintiff under registered sale deeds dated 27.6.1979 and 22.6.1978. According to the first defendant, the mill business, Avanam building, rice and paddy business and Food Corporation of India Agency are all separate properties of the first defendant. It was the first defendant who purchased the mill sites under three sale deeds and he had the means for the same, since he was having moneys in India which he had brought on various occasions, and there was no difficulty for the first defendant to purchase the sites. He has also brought gold and other ornamental jewels and coins besides cash from Ceylon. https://hcservices.ecourts.gov.in/hcservices/ 3 (d). On various occasions, he has also brought moneys to India. The first defendant has given "moi" to different parties to the tune of Rs.55,177/- and subsequently also he has spent a sum of Rs.42,722/- by way of "moi" and the first defendant was due to repay "moi" to the extent of Rs.19,720/-. According to the first defendant, there was no joint family and joint income. Mere association in the execution of some documents will not confer any right to the plaintiff. It is also denied that the first defendant and the second defendant are having joint living and joint income. According to the first defendant, they are distinct and separate. The first defendant would state that the plaintiff and third defendant are well-educated and the second defendant is uneducated and living solely depending on the income from agricultural properties. According to the first defendant, the properties not available for partition are included in the plaint. There are many properties stated in the plaint were in the name of the first defendant which were subsequently sold. The first defendant also denies the claim of the plaintiff in respect of schedule Nos.9 and 10. 4. The second defendant has filed a written statement, inter alia, contending that in 1955 there was a complete family division by way of arrangement and specific properties were allotted to the share of the second defendant and he was also put in possession and he has been in exclusive possession ever since the said date. The said arrangement was subsequently reduced into writing in 1959 by way of a registered document and at that time, since the second defendant was minor, he was represented by the first defendant being his father and after he became major, he started enjoying the properties directly. The exchange effected on 27.6.1965 was also to the knowledge of the plaintiff and the same was never questioned. The second defendant also states that after division of properties, he is enjoying the properties by cultivation and the plaintiff cannot claim any share in the properties mentioned in all the schedules. The second defendant has also pointed out that survey numbers of various properties are given wrongly. The second defendant states that he has purchased an extent of 44 cents in Avanam village described in Item No.1 of plaint schedule-6 and it is his separate acquisition. He also states that an extent of1.13 acres in Pulichankadu village described as plaint schedule-6 belongs to the wife of the second defendant, purchased with her siruvadu funds and it is the separate property of his wife, viz., 6th defendant Vasanthal, who is in actual possession as its owner. The second defendant is not aware of the existence of jewels in the plaint schedule-10. It is also the case of the second defendant that he has been carrying on the business in fertilisers jointly with the 4th defendant's husband and he is liable to account for the same and when a demand was made to him, he evaded the same, and it https://hcservices.ecourts.gov.in/hcservices/ is at his instance, the plaintiff has filed the present suit for partition. In respect of Item Nos.1 to 5 of schedule-1 in Periyanayagipuram village of an extent of 6.29 acres, the same were leased out by the first defendant from 1965 onwards on yearly lease of paddy of 40 bags and they are in his leasehold cultivation along with his separate lands. That apart, the second defendant adopts various other averments made by the first defendant in his written statement. The second defendant also states that in any event, he has perfected title by adverse possession since he has been in possession of the properties from 1955, and in respect of his separate properties, he has the right on the basis of ouster and the claim of the plaintiff is barred by limitation. 5. The third defendant has filed a written statement. The third defendant substantially accepts the pleadings in the plaint including the arrangement of the year 1955. In respect of the partition dated 21.10.1959, it is the case of the third defendant that he is not aware of the same till recently and according to him, the partition is not only a sham and nominal, but also a void ab initio for the reason of unequal division and the third defendant is not bound by such partition deed. According to the third defendant, he also continued to be a joint family member along with the defendants 1 and 2. The third defendant states that he is not aware of any alienation. He also states that alienation was made by the first defendant as only the joint family manager for constructing a house at Avanam village and for putting up paddy business and rice mill. The third defendant would also state that the first defendant has been managing the entire properties as Manager of the joint family. It is also the case of the third defendant that the first defendant obtained Power of Attorney from him in order to bind him in dealing with the joint family properties and business. When the first defendant started misusing the power in order to allot major shares to the second defendant, the third defendant revoked the Power of Attorney. It is the case of the third defendant that at the time of death of his mother, she was having 65 sovereign of jewels which are described in Schedule-10. He also prays for a decree for partition of 1/4th share in schedule 1 to 9 properties and 1/5th share in schedule-10. 6. The fourth defendant, who is the daughter of the first defendant, has filed the written statement. According to her, she belongs to "Onpathu Nadu". As per the custom of "Onpathu Nadu", the jewels of mother are to be given to the daughter and therefore, all jewels mentioned in Schedule-10 are to be given to her. However, she claims 1/5th share in the Jewels mentioned in the schedule. 7. The 5th defendant is the purchaser of property, viz., 4th item in Schedule-3 at Avanam village from the first defendant under registered sale deed dated 6.8.1964 and after the purchase, he has https://hcservices.ecourts.gov.in/hcservices/ planted coconut seedlings and now there are about 20 yielding coconut trees, aged about 17 years. The fifth defendant would also state that the said property was purchased by the first defendant from one Sethu Thevar under a registered sale deed dated 1.1.1961 and being the absolute owner, he has sold the property to the 5th defendant and the 5th defendant is the bona fide purchaser and he is in enjoyment of the same without any obstruction in respect of the said item of the properties. 8. The 6th defendant who is the wife of the second defendant has also filed a written statement. The 6th defendant was married to the 2nd defendant in the year 1968 and at the time of marriage, she was presented with jewels, cash and other seers as per the custom. Therefore, those presents have become her siruvadu funds in which others can have no right or claim. It is with the said funds, she has purchased 1.13 acres in Pulichankadu village described in schedule-6 in S.No.74/1. According to the 6th defendant, her husband 2nd defendant is a divided member from his father and living separately with the 6th defendant and the sale deed for the said property was got executed in the name of 2nd defendant, husband of the 6th defendant for the purpose of starting a coir industry. It is also the case of the 6th defendant that in respect of movable properties mentioned in Schedule-9, Items 11 to 14, they belong to the 6th defendant as they are part of customary seer presented to her at the time of marriage. 9. The 8th defendant who has purchased some of the properties, viz., item Nos.12 and 13 in Schedule 5 of the plaint from the 2nd defendant under registered sale deed dated 28.2.1980 would state that he is in uninterrupted possession of the properties for more than 12 years raising punja crops and paying kist to the Government and no one is entitled to the properties. 10. It is with the above pleadings, the trial Court has framed the following issues: 1.Whether the suit properties are liable for partition as joint family properties? 2.Whether schedule 6 to 8 are absolute properties of the first defendant? 3.Whether it is true that the partition of the year 1959 was not entered and acted upon? 4.Whether the first defendant has to pay any amount in respect of "moi" account? 5.Whether the 1st defendant has paid any amount, if so, to what extent? 6.Whether the first defendant is liable to account for the amount? 7.Whether schedule 7 and 8 properties were purchased from the money given by the plaintiff https://hcservices.ecourts.gov.in/hcservices/ and third defendant? 8.Whether schedule 4 to 6 properties are absolute properties of the 2nd defendant? 9.Whether the particulars of suit properties are correct? 10.Whether the suit is bad for non-joinder of necessary parties? 11. The following additional issues were framed: 1.Whether the 5th defendant has acquired adverse possession in respect of property, viz., Item No.4 of schedule-3? 2.Whether the 5th defendant is entitled to equity relief? 3.Whether the property comprised in survey No.74/1 to the extent of 1.13 acres mentioned in the schedule-6 is the absolute property of the 6th defendant? 4.Whether items 9 and 11 to 14 in schedule-9 absolutely belong to the 6th defendant? 5.Whether the 8th