M. Duraiswamy, J.@mdashThe above first appeal arises against the judgment and decree in O.S. No. 34 of 2007 on the file of the Additional
District Court cum Fast Track Court No. 1, Erode. The first defendant is the appellant, the first respondent was the plaintiff and the second
respondent was the second defendant in the suit.
3. The plaintiff filed the suit in O.S. No. 34 of 2007 for partition, permanent injunction and for possession.
4. The plaintiff, who is the first respondent in the appeal has filed the above Cross Objection challenging the finding of the trial Court in paragraph-
37 of the judgment holding that the Schedule 3 & 4 of the suit properties are joint family properties.
5. The brief case of the plaintiff is as follows:
(i) According to the plaintiff, she is the daughter of Late V.T.A. Marimuthu Chettiar. The first defendant is her younger brother and the second
defendant is her younger sister. The plaintiff and defendants'' grandfather Late T. Arumugam Chettiar was running an Oil Mill and his son
Marimuthu Chettiar was also along with his father engaged in the business. Arumugam Chettiar out of his own business purchased several
properties at Chithode and one house at Erode. On 14.11.1946, Arumugam Chettiar, his sons and one Angammal, minor daughter of Natesan
Chettiar executed a Partition Deed and in the said partition, Arugmugam Chettiar was allotted ''A'' Schedule property and Marimuthu Chettiar was
allotted ''B'' Schedule property.
(ii) In the year 1958, V.T.A. Marimuthu Chettiar purchased a house at Chithode out of his business income and another property, a vacant land of
about 5,360 sq. ft., with a tiled roof and a go-down built thereon in or around 1972. The property allotted to V.T.A. Marimuthu Chettiar, under
''B'' Schedule in the partition, is the ancestral property as far as the plaintiff and defendants are concerned. Marimuthu Chettiar died intestate on
20.04.1982, leaving behind his wife, Deivanaiammal, the plaintiff and defendants as his legal heirs. After the death of Marimuthu Chettiar, the
plaintiff and defendants are entitled to their respective shares in the said properties.
(iii) Schedule ''2'' is the ancestral property and Items 1 & 2 in Schedule ''3'' are the self acquired properties of Marimuthu Chettiar. Schedule ''2'' is
the property allotted to Marimuthu Chettiar in the partition. The plaintiff and defendants are entitled to 1/3rd share each in the property.
Deivanaiammal, during her life time, purchased a vacant land measuring an extent of 5,670 sq. ft., on 16.11.1972, which is Schedule ''4'' of the suit
property. The said Deivanaiammal died intestate on 27.07.1996 at Chithode, leaving behind the plaintiff and defendants as her legal heirs. The
plaintiff and defendants are entitled to 1/3rd share each in her property. The plaintiff purchased a house site in Erode measuring an extent of 5,700
sq. ft., on 16.11.1972.
(iv) The original Sale Deed was handed over to the first defendant for prosecuting a litigation and thereafter, the first defendant retained the
document with some ulterior motive. The plaintiff sent a letter dated 03.07.2004 requesting the first defendant to return the original Sale Deed, but
the first defendant did not respond. In the notice dated 02.07.2004 sent by the first defendant, he admitted that all the properties were purchased
out of the joint family income and also stated that the plaintiff and her sister Iyyammal are entitled to shares in all Items of the property and their
shares are to be adjusted in value to the debts incurred by the first defendant towards medical expenses and business of their father. The first
defendant also admitted that he was managing the Oil Mill run by his father since 1962. The doctrine of Pious obligation is cast more on the son.
The vacant site in Erode, Kasipalayam Village, Subramaniam Nagar, is the separate property of the plaintiff and none has any right over the said
property. Despite repeated demand for partition by the plaintiff, the first defendant did not come forward for the same. In these circumstances, the
plaintiff filed the suit.
5. The brief case of the first defendant is as follows:
(i) According to the defendant, all the properties were bought out of the joint family income earned by Marimuthu Chettiar and the first defendant.
Marimuthu Chettiar and the first defendant not only purchased these two items of property, but also two more items of properties. The plaintiff has
deliberately not included these items purchased by her father and the first defendant in her name only as trustee for the said property without any
specific intention of settling the property for her, but only for the future welfare of the family and for the purpose of meeting the family and marriage
expenses of the second defendant. Similarly, another property was purchased on the same day in the name of the mother of the plaintiff and
defendants intending the mother to be the trustee of that joint family property. Only the property standing in the name of the mother has been listed
in the suit as third Schedule property. The two house sites purchased on 16.11.1972 by the father of the first defendant at Erode in the name of the
plaintiff were exclusively in possession and enjoyment of Marimuthu Chettiar and the first defendant.
(ii) The plaintiff was given in marriage to one T. Sundararajan, who was having no source of income to maintain his family at that time and the
plaintiff and her husband were living with the first defendant and his father. The first defendant and his father sent plaintiff''s husband to Chennai for
doing legal studies at their cost, but he discontinued the legal studies and came back to Chithode. Later, the plaintiff''s husband joined as a Clerk in
Taluk Office and his income was not sufficient to manage himself and his family at Chennai. The plaintiff''s children were educated by the first
defendant and his father. The first defendant also purchased a house site in the name of the plaintiff''s husband and also contributed for the
construction of a house in the said land. Most of the joint family income was spent for the seer of both the plaintiff and the second defendant.
(iii) Since Benami Transaction was not abolished at that time, all the four vacant sites in the name of the plaintiff and Deivanaiammal, which were
purchased out of the joint family income of Marimuthu Chettiar and the first defendant, are only joint family properties. The plaintiff and defendants
are not entitled to equal share in the properties standing in the name of Deivanaiammal. The plaintiff was only a name lender in respect of the four
house sites, which were purchased out of joint family funds. Since the property was purchased from the joint family funds, the original document
was not handed over to the plaintiff. Similarly, the Sale Deed in the name of Deivanaiammal was also with the first defendant and his father. The
plaintiff had no source of income to purchase the house site at Kasipalayam. A sum of Rs. 2,00,000/- was borrowed from third parties for the
medical expenses of Marimuthu Chettiar. By depositing the Title Deeds, Marimuthu Chettiar borrowed about Rs. 2 to 3 lakhs from various
persons. The plaintiff and the second defendant are also bound to discharge the debt amount with interest, especially, when the plaintiff claimed a
share in the property. The properties standing in the name of the plaintiff should also be included for partition. The plaintiff and the second
defendant are entitled to 1/6th share each in the properties and the first defendant is entitled to 4/6th share with respective liability.
6. The brief case of the second defendant is as follows:
According to the second defendant, the property measuring an extent of 5,670 sq. ft.; which was purchased in the name of Deivanaiammal on
16.11.1972 was purchased by V.T.A. Marimuthu Chettiar out of the joint family income. The plaintiff and Deivanaiammal had no separate or
personal income at any point of time. The property standing in the name of the plaintiff was also purchased out of the joint family income. They are
only trustees of the said land for the future benefit of the joint family and also for the marriage expenses of the second defendant. The first four
children of the plaintiff were being fed and educated by the father of the plaintiff and the defendants out of the joint family income. The daughter of
the second defendant was married to the son of the first defendant. The second defendant''s daughter is suffering from genetical disease of frequent
fits. The properties purchased in the name of the plaintiff on 16.11.1972 with the joint family funds should be included for partition. The plaintiff
and the second defendant are each entitled to l/6th share in all the items of the suit properties including the one standing in the name of the plaintiff.
7. The brief case of the plaintiff in the reply statement is as follows:
(i) According to the plaintiff, the first defendant was making income by renting out his father''s properties and he was actually a dependent on the
income of his father. There was no necessity for the father of the plaintiff and defendants to purchase the property situated at Subramaniam Nagar,
Kasipalayam Panchayat, Erode, in the name of the plaintiff. The plaintiff was married ten years before the date of purchase of the said property. It
is natural for a father to provide food and stay for his children whenever they come to his house even after marriage. The educational expenses of
her children was met out of her husband''s salary. Not a single pie was spent by the first defendant for the welfare of his sister and her children.
Only her father looked after the welfare of his children.
(ii) The plaintiff''s husband, after graduation, got employment after passing the examinations conducted by the Madras Public Service Commission
even before marrying the plaintiff. He joined as Lower Division Clerk in 1961 and got periodical promotions and after completion of 35 years of
service retired as Joint Director of Treasures and Accounts. After marriage, the plaintiff was residing in her father-in-law''s house at Erode, since
her husband was employed at various places. After the death of the father of the first defendant, he did not have any business at Chithode and he
had gone to his mother-in-law''s house at Pariyur, Nangagoundam Palayam, Gobi Taluk where he set up a provisions shop. The plaintiff did not
stay at her father''s house from the date of marriage till 1975. The first defendant did not give Rs. 3,00,000/- for the construction of the house. The
house was constructed during 1980-1982. The house was constructed only by the plaintiff''s husband. The plaintiff has no knowledge about the
debts. There is no necessity for Marimuthu Chettiar to borrow money when he was making good profit from Oil business till he fell ill in the year
1973. The plaintiff out of her savings and the finance provided by her husband purchased the house site at Subramaniam Nagar, Kasipalayam
Panchayat and the said property is the absolute property of the plaintiff and no one can make a claim over the property and hence, the plaintiff is
not bound to include that property in the suit. Therefore, the plaintiff is entitled to 1/3 share in the house site situated at Subramaniam Nagar,
Kasipalayam Panchayat, Erode, purchased in the name of Deivanaiammal. The first defendant is not entitled to 4/6th share as claimed in the written
statement.
8. Before the trial Court, on the side of the plaintiff, 2 witnesses were examined and 27 documents, Exs. A1 to A27, were marked and on the side
of the defendants, the first defendant was examined as D.W. 1 and 8 documents, Exs. B1 to B8, were marked.
9. The trial Court, after taking consideration the oral and documentary evidences of both sides, passed a preliminary decree for partition finding
that the plaintiff is entitled to 1/3rd share in Schedules 2 to 4 of the suit properties and also granted a decree for permanent injunction.
10. Aggrieved over the judgment and decree of the trial Court, the first defendant has filed the above appeal.
11. Heard Mr. D. Krishna Kumar, learned counsel appearing on behalf of the appellant/first respondent in Cross objection, Mr. S.V. Jayaraman,
learned senior counsel appearing on behalf of the first respondent/cross objector and Mr. K. Arangeswaran, learned counsel appearing on behalf
of the second respondent in the appeal and Cross Objection.
12. On a careful consideration of the materials available on record and the submissions made by both the learned counsels, the following points
arise for consideration in this appeal:
1. Whether the plaintiff is entitled to 1/3rd share in the suit property?
2. Whether the properties purchased in the name of the plaintiff and her mother Deivanaiammal are also joint family properties?
3. Whether the plaintiff is entitled for partition of the suit properties?
4. Whether the plaintiff is entitled for permanent injunction?
5. Whether the finding of the trial Court that the Schedule ''3'' of the suit properties are the joint family properties is correct?
13. It is not in dispute that the first defendant is the younger brother of the plaintiff and the second defendant is the younger sister of the plaintiff.
The plaintiff and the defendants are the children of V.T.A. Marimuthu Chettiar and Deivanaiammal. The paternal grandfather of the plaintiff and the
defendants viz., T. Arumugam Chettiar and their father V.T.A. Marimuthu Chettiar were doing Oil business jointly. Under Ex. A1 Partition Deed
dated 14.11.1946 Arumugam Chettiar and his children partitioned the properties and ''A'' Schedule was allotted to Arumugam Chettiar and ''B''
Schedule therein was allotted to Marimuthu Chettiar. It is also not in dispute that Marimuthu Chettiar died intestate on 20.04.1982 and his wife,
Deivanaiammal had died intestate on 27.07.1996. Under Ex. A4 Sale Deed dated 16.11.1972, Schedule ''4'' of the suit property measuring an
extent of 5670 sq. ft., was purchased in the name of Deivanaiammal. Under Ex. B4 Sale Deed dated 16.11.1972, an extent of 5,700 sq. ft., of
vacant land in Kasipalayam, Erode, was purchased in the name of the plaintiff. This property was not included in the suit. According to the plaintiff,
the property purchased under Ex. B4 is her self-acquired property and the same is not liable for partition, therefore, it was not included in the suit.
However, the defendants contended that the property purchased under Ex. B4 Sale Deed in the name of the plaintiff was also purchased out of
joint family funds, therefore, it is also liable for partition and the same should be included in the suit for partition.
14. According to the plaintiff, she is entitled to 1/3rd share in the suit properties. The defendants contended that after the execution Ex. A1
Partition Deed in the year 1946, the first defendant and his father Marimuthu Chettiar are entitled to 1/2 share each in the ''B'' Schedule properties
under Ex. A1 Partition Deed and after the death of Marimuthu Chettiar in the year 1982, Marimuthu Chettiar''s 1/2 share should be divided equally
among the plaintiff and the defendants, therefore, the plaintiff is entitled only to 1/6th share in the suit properties. ''B'' Schedule property, which was
allotted under Ex. A1 Partition Deed is the Schedule ''2'' of the suit property. Under Ex. A2 Sale Deed dated 10.09.1958 Marimuthu Chettiar
purchased Item 1 in Schedule 3 of the suit property. Similarly, under Ex. A3 Sale Deed dated 10.12.1972 Marimuthu Chettiar purchased Item 2
in Schedule 3 of the suit property. After the purchase of the property under Ex. A3, Marimuthu Chettiar constructed a house in the said land.
Schedule ''4'' of the suit property is the property purchased in the name of Deivanaiammal under Ex. A4 Sale Deed dated 16.11.1972. The trial
Court held that the properties allotted to Marimuthu Chettiar under Ex. A1 Partition Deed dated 14.11.1946 are the separate properties of
Marimuthu Chettiar. The plaintiff was examined as P.W. 1 and her husband was examined as P.W. 2. In their evidence, they have stated that the
Schedule ''3'' properties were not purchased from the joint family funds and the first defendant never did business with Marimuthu Chettiar jointly.
Similarly, they have also stated that the Schedule ''4'' property, which stood in the name of Deivanaiammal, was also not purchased from the joint
family funds.
15. The learned counsel appearing on behalf of the appellant, in support of his contention, relied upon a judgment reported in S. Seshachalam Vs.
S. Deenadayalan and Others, wherein this Court held that the Amendment Act 2005 would have no application in case the succession had opened
prior to the coming into force of the Amendment Act.
16. Countering the submissions made by the learned counsel for the appellant, the learned senior counsel for the first respondent submitted that the
trial Court had rightly passed a preliminary decree finding that the plaintiff is entitled to 1/3rd share. The learned senior counsel also submitted that
the trial Court had erred in finding that Schedule 3 & 4 of the suit properties are the self acquired properties of Marimuthu Chettiar. According to
the learned senior counsel, Schedule 3 & 4 of the suit properties were purchased out of the joint family income, therefore, they are not self-
acquired properties of Marimuthu Chettiar. In support of his contention, the learned senior counsel relied upon the following judgments:
(i) Lakshmi Ammal Vs. Meenakshi Ammal and Others, wherein a Division Bench of this Court held that there is no presumption in Hindu Law that
a business standing in the name of a member of a Hindu family is joint family business even when that member is the manager or the father, and that
unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family or the joint family funds, the
business remains separate.
(ii) R. Selvaraj Vs. R. Raadhakrishna Pillai alias R.R. Krishna Pillai and Another, wherein a Division Bench of this Court held as follows:
There is no presumption that a business conducted by a member of the joint family is a joint family business. On the other hand, the presumption is
to the contrary. The person alleging such a state of affairs should prove the same by acceptable and clinching evidence. The fact that the business
started by one of the members was of the same nature as the business which was carried on by his ancestor will not by itself be a sufficient
discharged of the burden of proof on the part of the person alleging that such business is ancestral business.
On the above proposition, the learned senior counsel also relied upon the judgments reported in G. Narayana Raju Vs. G. Chamaraju and Others,
and Chattanatha Karayalar Vs. Ramachandra Iyer and Another, .
(iii) D. Krishnamurthy Vs. A. Subramania Mudaliar and D. Shanmugam, D. Munuswamy and D. Govindasamy, wherein this Court held that there
is no presumption that a joint family possesses joint property and if a party claims a particular property to be joint family property, the burden of
proving that it is so rests on him.
On this proposition, the learned senior counsel also relied upon the judgments reported in P.M. Mani Vs. P.S. Mohankumar and Others, and
(2000) 3 M.L.J. 660 [Kanakaraj Vs. Sivakozhundu and others].
17. The first defendant was examined as D.W. 1. In his evidence, he had stated that all the suit properties were purchased from the joint family
funds, therefore, the plaintiff is entitled only to 1/6th share in the suit properties. He had also deposed that the plaintiff and his mother
Deivanaiammal did not have independent income for the purchase of the properties under Exs. A4 and B4 respectively. Though, D.W. 1 had
stated that he his having accounts for ten years in respect of the Oil business done by himself and his father, he has not produced any document to
prove the said contention.
18. So far as Schedule ''2'' is concerned, ''B'' Schedule property which was allotted under Ex. A1 Partition Deed in the year 1946 is concerned,
the first defendant being the only male legal heir of Marimuthu Chettiar is entitled to 1/2 share in the said ancestral property along with his father
Marimuthu Chettiar. After the death of Marimuthu Chettiar on 20.04.1982, his 1/2 share devolved equally among his legal heirs. Marimuthu
Chettiar''s wife Deivanaiammal had died on 27.07.1996. Therefore, the plaintiff and defendants are entitled to l/6th share each in Marimuthu
Chettiar''s 1/2 share in Schedule ''2'' of the suit property. The trial Court, erroneously, held that the plaintiff is entitled to l/3rd share in the Schedule
''2'' of the suit property, when she is entitled only to 1/6th share in Schedule ''2'' of the suit property.
19. So far as the Schedule ''3'' of the suit property is concerned, according to the plaintiff, it is the self-acquired property of her father Marimuthu
Chettiar. However, the defendants contended that the Schedule ''3'' properties consisting of two items are also joint family properties purchased
from the joint family funds. Though the defendants have not established that the Schedule ''3'' properties are the joint family properties, P.W. 1
herself in her cross examination had clearly admitted that items 1 & 2 of the Schedule ''3'' of the suit properties were purchased by Marimuthu
Chettiar from the joint family funds. When the plaintiff herself admitted that Schedule ''3'' properties were purchased out of joint family funds, she
cannot turn around and say that the properties were the self-acquired properties of her father Marimuthu Chettiar. The trial Court rightly took into
consideration the admission made by P.W. 1 with regard to the Schedule ''3'' of the suit properties and held that they were purchased from the
joint family funds and therefore, they are joint family properties. In these circumstances, the Cross Objection filed by the plaintiff is liable to be
rejected. Since the Schedule ''3'' properties are found to be joint family properties, Marimuthu Chettiar and his son (the first defendant) were
entitled to 1/2 share each in the property, after the death of Marimuthu Chettiar on 20.04.1982, his 1/2 share devolved equally among his heirs.
After the death of Deivanaiammal, wife of Marimuthu Chettiar, on 27.07.1996, the plaintiff and defendants are entitled to 1/6th share each in the
Schedule ''3'' of the suit properties. The trial Court, erroneously, held that the plaintiff is entitled to 1/3rd share in Schedule ''3'' of the suit
properties.
20. The Schedule ''4'' of the suit property was purchased under Ex. A4 Sale Deed dated 16.11.1972 in the name of Deivanaiammal. According to
the defendants, the said property was purchased out of the joint family funds, therefore, it should also be construed as joint family property. But the
defendants failed to establish the said contention by any acceptable evidence. That apart, the property was purchased in the name of a female.
Even under the Benami Transactions (Prohibitions) Act, 1988 the property purchased under the name of a female should be construed only as her
separate property. Therefore, in the absence of any acceptable evidence to prove that Schedule ''4'' of the suit property was purchased from the
joint family funds, the said property can be construed only as the separate property of Deivanaiammal. After the death of Deivanaiammal on
27.07.1996, u/s 15(1)(a) of Hindu Succession Act, the property would devolve equally among her heirs (i.e.) the plaintiff and the defendants.
Therefore, the plaintiff and defendants are entitled to 1/3 share each in the Schedule ''4'' of the property. The trial Court had rightly held that the
plaintiff is entitled to 1/3 share in Schedule ''4'' of the suit property.
21. According to the defendant, the property purchased under Ex. B4 dated 16.11.1972 in the name of the plaintiff was also purchased from the
joint family funds and therefore, that property is also liable for partition. However, the plaintiff contended that it is her self-acquired property
purchased from her husband''s funds and loan obtained from his department, therefore, it is not a joint family property liable for partition. Though
the defendants contended that the said property is a joint family property, they have not let in any acceptable evidence to prove the said
contention. In the absence of any acceptable evidence to that effect, the trial Court has rightly held that it is her self-acquired property and
therefore, not liable for partition. Since the said property is self-acquired property of the plaintiff, rightly it was not included in the suit.
22. Since the succession had opened even prior to the amended provisions of the Hindu Succession Act, the plaintiff cannot claim the benefits
under the Amendment Act. In the case on hand, succession had opened as early as on 20.04.1982. Therefore, the plaintiff is not entitled for the
benefits under the amended provisions of Hindu Succession Act.
23. The plaintiff had also prayed for permanent injunction restraining the defendants from committing any waste or putting the property into any
manner diminishing the value till the disposal of the suit. Since it is found that the plaintiff is entitled to a share in the suit property, she is entitled for
injunction as prayed for till the disposal of the suit. The trial Court has rightly granted permanent injunction till the partition is effected.
24. In these circumstances, the judgment and decree of the trial Court are modified and a preliminary decree is passed as follows:
(i) The plaintiff is entitled to 1/6th share in Schedule ''2'' and Schedule ''3'' of the suit properties.
(ii) The plaintiff is entitled to 1/3rd share in Schedule ''4'' of the suit property.
Clauses 2 & 3 of the decree in O.S. No. 34 of 2007 are confirmed.
The appeal is partly allowed. The Cross Objection stands dismissed. However, there shall be no order as to costs. Consequently, the connected
miscellaneous petition is closed.
