IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19/12/2002 CORAM THE HONOURABLE MR.JUSTICE P.SHANMUGAM AND THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM A.S.No.1122 of 1986 and Transfer A.S.No.437 of 1989 A.S.No.1122 of 1986: 1. G.Ramaraj 2. Syamala 3. Rajaguru 4. Rajagopal .. Appellants -Vs- 1. Ponnuchamy Reddiar 2. Gnanammal 3. Durairaj 4. Saraswathi Ammal 5. Gunapal 6. Gandhiraj 7. Dinakaran .. Respondents Tr.A.S.No.437 of 1989 Shyamala .. Appellant vs 1. Nannammal 2. Ponnusamy Reddiar 3. Durairaj Reddiar 4. Kunabalan 5. Ghandhiraj 6. Dinakaran .. Respondents These two appeal suits are preferred under Order 41 Rule 1 and S.96 of The Code of Civil Procedure against the common judgment and decree of the learned II Additional Subordinate Judge, Madurai in O.S.Nos.3 63/81 and 59/85 dated 28.8.1986. !For Appellants : Mr.T.Srinivasa Raghavan ^For Respondents : Mr.M.V.Venkataseshan for RR1, 3 to 6 and proposed parties (RR8 to 11) and for all Respondents in Tr.A.S.437/89 R2 and R7 died :COMMON JUDGMENT M.CHOCKALINGAM, J. The defendants 3 to 6 in O.S.363/81 are the appellants in A.S.1122/8 6, while the plaintiff in O.S.59/85 is the appellant in A.S.437/89. 2. Both the appeals have arisen from the common judgment and decree of the learned II Additional Subordinate Judge, Madurai, granting a preliminary decree in O.S.363/81 and dismissing the suit in O.S.59/85. 3. The plaintiff in O.S.363/81 has averred in the plaint as follows: The plaintiff is the son of the defendants 1 and 2 and the brother of the defendants 3 and 7, while the defendants 4 to 6 are the children of the third defendant. Suit properties are the ancestral properties of the plaintiff, and some of them are purchased out of the income from the joint family properties and the defendants 1, 3 and 7. The properties described in 'A' Schedule are ancestral properties. 'B' Schedule properties were purchased in the name of the first defendant . Since the name of the second defendant is lucky, 'C' Schedule properties were purchased in her name. She is only a benami. 'D' Schedule properties were purchased in the name of the plaintiff. 'B' to 'D' Schedule properties were purchased from out of the income from the ancestral properties and from the joint efforts of the plaintiff and the defendants 1, 3 and 7. 'E' Schedule properties are in the house in Maiyittampatty Village, while 'F' Schedule properties are in the house in Madukathan Village. Though heavy amounts of the joint family in cash have been deposited in the names of the defendants 4, 5 and 6, they have no independent source of income. Hence, those deposits belonged to the joint family. The defendants 1 and 3 have also advanced loans to various parties to the tune of Rs.80,000/- from the joint family funds. The first defendant as kartha of the joint family is liable to render accounts for the same. The 8th defendant is the daughter and the 9th defendant is the son of the plaintiff, while the defendants 10 and 11 are the sons of the 7th defendant. The 9th defendant purchased 37 cents of punja lands from out of the funds provided by his mother by way of a registered sale deed dated 7.7.66. the said properties are not the joint family properties. The plaintiff and the defendants 1, 3 and 7 are entitled to 1/4th share in the suit properties. The 2nd defendant is entitled to only maintenance till her life from out of the share of the first defendant. Since quarrel arose in the family, the plaintiff tried his level best to have a partition of the joint family properties. On 5.6.81, the first defendant informed that there cannot be any partition, which constrained the plaintiff to file this suit for partition and allotment of 1/4th share of the suit properties to the plaintiff and for direction to the first defendant to render accounts. 4. The defendants 1 and 3 to 6 have filed a written statement with the following averments: 'C' Schedule properties belonged to the second defendant, having been acquired by her from out of her sridhana properties. Apart from that, the house property bearing door No.70.A in Maiyittampatty Village described in B Schedule belonged to the 2nd defendant, and it is purchased by her with her own funds. In addition to the properties described in A Schedule, the family is entitled to a padapadi 2 cents in extent comprised in R.S.97/14 in the Village of Maiyittampatty, which should be included as an item available for division. The kottam described in B Schedule is only a repetition of item 16 of A Schedule, and hence, item 16 of A schedule should be deleted. Since the first defendant had become ill and old in 1971, he entrusted the management of the properties to the plaintiff. The fact that the amount of Rs.12,000/- belonging to the family was deposited in the name of the minor son of the plaintiff as a lucky name in the Indian Bank, Viruidhunagar Branch was suppressed by the plaintiff. The said amount should also be included as an item available for division. The minor son of the plaintiff had no wherewithal to purchase any property, and hence, the properties under items 1 to 5 were purchased out of the joint family income. Out of the income from the joint hindu family, the plaintiff advanced Rs.30,000/- on othi in the name of his daughter Saraswathi, and the plaintiff subsequently purchased the said house in her name for a consideration of Rs.1,30,000/-. The plaintiff has also obtained another othi for Rs.10,000/- in her name. But, the plaintiff has fraudulently omitted to include the said property for division. The plaintiff's son and daughter should also be impleaded as parties. The suit is bad for their non joinder. The plaintiff has also omitted to mention the various vessels and other movables. Since they are family properties, they should also be made available for partition. There are two wooden bureaus. There are only two pairs of bulls. The value given for items 1 and 3 to 9 of E Schedule is not correct. Items 2 and 9 of E Schedule do not belong to the family, but belonged to the 2nd defendant. The plaintiff has deliberately omitted to mention 2 bearing machines belonging to the family, which are in his custody. They should also be made available for partition. The house in Madakathan Village belonged to the 2nd defendant. Though these defendants are always ready and willing to effect a fair and equitable partition, the plaintiff and the 7th defendant colluded with each other and are adopting unreasonable attitude by setting up false claims to the properties which exclusively belonged to the 2nd defendant. These defendants have no objection for dividing the ancestral properties. None of the family properties or funds are with either the first defendant or the third defendant, and they are not liable to render any account therefor. The suit is also bad for non joinder of two sons of the 7th defendant. Hence, a preliminary decree may be passed in respect of the family properties only belonging to the plaintiff and the defendants 1 and 3 to 6 allotting their 1/4th share separately, and the plaintiff has to be directed to render accounts in respect of their respective shares and pay the same to them. The remaining portion of the suit claim may be dismissed with costs. 5. The second defendant filed a written statement alleging that with the moneys presented to her, she had been advancing the same to various persons for interest even as early as 1929; that the moneys advanced by her from 1929 refer only to her separate funds and not out of the joint family funds; that she purchased properties with her moneys, in which neither the first defendant nor the joint Hindu family of the first defendant had any right, title or interest; that after purchase of the properties in her name, she has been separately enjoying the same as her own properties; that item 18 of C Schedule was settled in her favour by her brother Tirupathi Reddiar, and its correct extent is 10.5 acres; that the house tax in respect of Door No.91-B has been assessed in her name; that it is her exclusive property; that the kist was also paid by her; that most of the purchases had been made by her long before the plaintiff was born; that she is not a benamidar; that the plaintiff and the 7th defendant had refused to allow her to enter into the house and prevented her from opening the iron safe; that they have no rights in her properties; that she is forced to reside at Mudakathan; that even assuming that she had no moneys of her own for purchase of the properties, the properties purchased in her name are to be treated to be the properties intended to be enjoyed absolutely by her; that she executed a Will on 17.6.81 bequeathing all her properties in favour of her grandson viz. defendants 5 and 6; that she purchased item 2 of C Schedule as early as 2.6.36; that she has been keeping her income separately; that she purchased 10 acres of land on 23.1.80 and also the house property shown as last item in B Schedule; that the house tax assessment stands in her name; that she sold a property purchased by her, to a third party Minor Raman as early as 16.3.1948; that the iron box belongs to her; that the plaintiff has no cause of action to file this suit; that the plaintiff is not entitled to get any relief, and hence, the suit may be dismissed with costs. 6. The 7th defendant filed a written statement stating that he along with the plaintiff and the defendants 1 and 3 are in joint possession of the suit properties; that the suit properties are ancestral properties; that the properties purchased in the name of the second defendant belonged to the joint family; that the income from the Mayittampatti Village properties have been handed over to the first defendant then and there after meeting the expenses by the plaintiff and the 7 th defendant; that he is entitled to 1/4th share in the deposited amounts and also 1/4th share in the loans advanced by the defendants; and hence, 1/4th share may be allotted to him. 7. In the written statement filed by the 8th defendant, it is averred that she is the daughter of the plaintiff; that the house at Post Office Street Virudhunagar had been purchased only for her benefit from the funds of her husband by way of a registered sale deed dated 16.7.81; that after her marriage, there was no need for the plaintiff or the defendants to look after her; that no property was purchased in her name from out of the joint family funds of the plaintiff and the other defendants, and hence, the suit has to be dismissed with exemplary costs. 8. It is averred in the written statement filed by the 9th defendant that he is the son of the plaintiff and a member of the joint family; that he purchased some properties from out of the funds of his mother; that his mother was having separate funds, and the same had been deposited in Indian Bank; that the plaintiff withdrew the said amount and spent the same for the purpose of the joint family; that he should be allotted with his share from the joint family properties in addition to the properties purchased by him; and hence, a preliminary decree for partition allotting his share has to be passed. 9. The 10th defendant filed a written statement stating that the defendants 10 and 11 are necessary parties to the suit; that they are entitled to a share in the joint family properties; that they adopt the written statement of the 7th defendant; that the shares of the defendants 10 and 11 have to be allotted separately, and hence, a preliminary decree may be passed accordingly. 10. In the reply statement, the plaintiff has averred that the second defendant never intended to gift the said lands in favour of the fourth defendant; that C Schedule lands are also joint family properties; that the alleged settlement deed was not given effect to; that the 4th defendant was not given possession of the lands mentioned therein; that the fourth defendant filed a suit in O.S.778 of 1983 on the file of the District Munsif's Court, Tirumangalam against Nanammal, Ponnusamy Reddiar, Durairaj Reddiar, Gunapalan, Gandhiraj and Dinakaran for a permanent injunction restraining them from interfering with her alleged possession and enjoyment; that the said suit is still pending; that neither the plaintiff nor the 7th defendant is liable to render accounts for the profits; that the cancellation deed dated 4.3.8 3 as alleged by the 4th defendant is proper and legal; that since the suit properties are joint family properties, the plaintiff is entitled to partition. 11. In the additional written statement filed by the third defendant, it is stated that the first defendant even when he was alive, had disclaimed any interest in B Schedule item 2 and all the items in C Schedule; and hence, neither the plaintiff nor the defendants 3 and 7 can claim any interest in the said properties as his legal heirs. 12. The 4th defendant filed an additional written statement stating that the 2nd defendant had executed a registered settlement deed in her favour on 18.4.83; that the plaintiff or the 7th defendant has no right to claim any share in the properties; and that the alleged cancellation deed dated 4.3.83 is totally void and inoperative. 13. In the additional written statement filed by the defendants 5 and 6 it is averred that it is only with the evil intention of grabbing a share in the suit properties, the plaintiff has fraudulently included the properties in C Schedule as joint family properties; that the second defendant has expressly mentioned in her Will as to why she was not giving any portion of her properties to the plaintiff or 7th defendant and why she was bequeathing the same to them; that the second defendant executed a general power of attorney in favour of one Padmanabhan and instructed him to sell away her properties in Mudakathan and Anaiyur Village to them; that accordingly, the properties were sold to them on 18.5.83 and 30.5.83; and that they solely and exclusively entitled to the C Schedule house. 14. The case of the plaintiff in O.S.59/85 is as follows: Originally the suit properties belonged to the first defendant. She executed a registered settlement deed in favour of the plaintiff on 18.4.83. She executed the same of her own accord and volition. As per the settlement, the plaintiff is entitled to the suit properties. The plaintiff is in possession and enjoyment of the suit properties from 18.4.83. At the instance of the defendants 2 to 6, on 4.6.83, the first defendant was made to cancel the settlement deed; that she has no right to cancel the settlement; that she has done so on account of coercion and undue influence of the defendants 2 to 6; that when the plaintiff and her men were about to plough the suit properties on 8.8.83, the defendants came there, threatened and wanted to oust the plaintiff from her possession of the suit properties; and hence, the plaintiff was constrained to file this suit, and the defendants should be restrained by way of permanent injunction. 15. The first defendant filed a written statement alleging that the plaintiff is not in possession and enjoyment of the suit properties at any point of time; that the suit properties are joint family properties belonging to her husband and his three sons; that the suit properties have been purchased in her name from out of joint family nucleus by her husband; that the settlement deed was executed by her at the instance of her father; that she executed a power of attorney in favour of the husband of the plaintiff, who had misused the same and the same has resulted in the execution of the said settlement deed; that the other defendants were not aware of the said settlement; that the husband of the plaintiff and her father filed O.S.29/83 on the file of the Vacation Civil Judge, Madurai on 19.5.83 in her name for a permanent injunction, and the said suit was transferred to the District Munsif, Madurai and numbered as O.S.263/83; that on coming to know about the evil design and also misuse of the power, an application was filed in I.A.431/83 to strike off her name from the array of parties as first plaintiff and to dismiss the suit, and the same was allowed on 21.6.83; that the recital in the settlemen t deed were executed and introduced only for the sake of the settlement deed and not with the idea of giving effect to the same; that the settlement deed was not acted upon; that the suit properties are in possession and enjoyment of the defendants 2 and 3; that the settlement deed seems to have been obtained from her by giving false hope and with ulterior object of defrauding the rights of the defendants 2 and 3; that the settlement deed was duly cancelled by her by means of a registered cancellation deed dated 4.6.83; that she was never kidnap ped by the defendants 2 and 3; that the cancellation deed is a free and voluntary document; that she did not give any threat on 8.8.83; that various crops were raised in the suit properties; that the plaintiff has no cause of action against the defendants, and hence, the suit may be dismissed with costs. 16. The 2nd defendant filed a written statement with the following averments: The suit properties are joint family properties. Since the suit properties stand in his mother's name, it has been stated in the settlement deed that the suit properties are the self acquired properties of the first defendant. The settlement deed was executed at the instance of his youngest brother Ramraj and the husband of the plaintiff. The husband of the plaintiff had misused the power deed executed by the first defendant and filed a suit for permanent injunction. He also filed a suit for partition of the joint family properties. The said settlement deed was not acted upon. The plaintiff had never taken possession either actual or constructive of the suit properties at any point of time. The cancellation deed dated 4.6.83 is a free and voluntary document executed by the first defendant. There was no necessity for him to make any such threat. The suit properties are in exclusive possession and enjoyment of the defendants 2 and 3. The suit is frivolous and vexatious. The plaintiff is not entitled to any relief as claimed in the plaint. 17. The second defendant has filed additional written statement alleging that the plaintiff is not entitled to the alternate relief prayed for possession; that the plaintiff has no title to the suit properties; that the plaintiff is also not entitled to any mesne profits; that the properties have been valued at Rs.40000/- in the alleged settlement itself and that not less than Rs.100/- is paid towards kist. 18. Both the appeals have been preferred from a common judgment and decree of the learned Subordinate Judge in the above two suits, one for partition and the other for permanent injunction. 19. For the sake of convenience, the parties will hereinafter be referred to as arrayed in O.S.363/81 viz. plaintiff and defendants. 20. The learned Counsel appearing for the appellants would submit that the judgment and decree of the lower Court are not sustainable in law; that in the instant case, though the burden is on the plaintiff to prove the case, he miserably failed to do so; that the lower court while dealing with issues 1, 2, 9 and 10, has dealt with the case as if the defendants 3 to 6 claiming under the 2nd defendant, have failed to prove that the said properties were purchased by the second defendant from and out of her funds and not out of the income from the joint family properties; that the lower court has completely ignored even the fundamental position of Hindu Law that in the case of a coparcener purchasing a property in his own name while remaining joint with the other members of the family, it is for the other members to prove affirmatively that the joint family is possessed of sufficient means and nucleus to aid the said acquisition and only if they succeed in doing so, the onus shifts to the acquirer to prove that the property in question was acquired by him without any aid from the family properties; that the lower court has overlooked the fact that at the time of filing the written statement, defendants 4 to 6 have not acquired the properties standing in the name of the 2nd defendant, and it was not to their interest to plead any false case; that the lower court should have found that the first and second defendants were forcibly kidnapped by the plaintiff and the defendants 7 and 9 to 11 and was kept as a prisoner in their custody; that she has been forced to depose in court as D.W.2 contrary to her own pleadings in her written statement; and that the registration copy of the Will had been marked as Ex.B.422 and the lower court has completely ignored the said document which completely cuts at the plaintiff's case of Benami purchase and also proves that the second defendant has given perjured testimony in court as D.W.1 only on the compulsion of the plaintiff and defendants 7 and 9 to 11. 21. The learned counsel for the appellants has further contended that the lower court should have given the greatest weight for the pleas made in the written statement of the first defendant since it was against her own interest and was not in any way actuated by any animosity towards plaintiff or seventh defendant and their sons; that the observation of the lower court that the said case is not believable since the second defendant has not executed any power in his favour is absolutely meaningless; that in respect of C schedule lands in the villages of Maiyittanpatti, Chittor, and Nallanayankanpatty, kists have been paid only by the second defendant, and they all have been produced into court by the fourth defendant, who is the settlees from the second defendant; that the plaintiff has produced the subsequent kist receipts only for faslis 1394 (1984-85) and subsequent thereto which are marked as Exs.A.6 to A.16 after the second defendant was kidnapped and kept in the illegal custody of the plaintiff in May 1983; that the lower court should have found that the plaintiff has miserably failed in proving that the family had sufficient income to make the said purchase benami in the name of the defendant; that the other motives sought to be put forward in the course of evidence that Balu Reddiar brother of the first defendant was a court bird and he could make a claim if they are purchased in the name of the first defendant and hence, purchases were made benami in the name of the 2nd defendant, have not been pleaded in the plaint or in the reply statement; that the lower court should have rejected the said motive; that so far as the Mudakathan house and lands are concerned viz. B schedule item 4 and C schedule last item, the original sale deeds relating to them namely Exs.B.1 and B.2 are produced in Court only by 2nd defendant; that on the other hand the plaintiff has not produced any bills, vouchers or any document to prove that was spent for the construction of the house by the joint family and no independent witnesses have been examined to prove that the house was constructed by plaintiff; that the