AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
458 paragraphs · 9,812 wordsP.R. Shivakumar, J.—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.
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
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 1/2 share as a coparcener. The remaining 1/2 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 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.
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/plaintiff 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 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.
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.
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?
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?
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.
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 1/2 share as a
coparcener and the other 1/2 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 1/2 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 1/2 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 1/2 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.
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 1/2 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.
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 1/2 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.
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
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 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.
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 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.
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 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.
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
defendants as the legal heirs of the mortgagor. On the other hand, the original sale deeds have been produced as Exs.B1 and B2. There is nothing
in evidence to show how they came to possess the documents. Be that as it may, those documents would go to show that there were some debts
owed by the family for which some of the ancestral properties were sold and one of the properties was mortgaged and redeemed subsequently.
The same shall not be enough to show that only two acres of land had been left by Veerappa Padayachi to be inherited by Mahalinga Padayachi
and that the said two acres of land was also sold for discharging the family debts and for meeting the family expenses. The mere fact that funds
were raised by selling some of the properties and mortgaging some of the properties shall not be enough to give raise to an inference that the
remaining properties did not yield income even sufficient to maintain the family. There cannot be any inference that the income derived from the
other properties was meager and insufficient leaving no surplus after meeting the family expenses.
In this case admittedly all the properties inherited by Mahalinga Padayachi had not been lost either by sale or otherwise. On the other hand,
only a couple of properties were sold under Exs.B1 and B2 in 1943. Ex.B4 will provide a clue that the property concerned in the mortgage deed
is still available, as the same was redeemed in 1949 as per the endorsement found in Ex.B4. It is also a clear admission made by the defendants
that the properties described in plaint ''A'' schedule include the ancestral properties of Mahalinga Padayachi. Exs.B14 to B36 are the sale deeds
under which some of the properties described in plaint ''A'' schedule were purchased by Mahalinga Padayachi. The details regarding the purchase
of different items of properties under various exhibits are given as under:
---------------------------------------------------
Exihibits Item Nos.
---------------------------------------------------
Ex.B14 41 and 43
---------------------------------------------------
Ex.B15 1
---------------------------------------------------
Ex.B16 42 and 44
---------------------------------------------------
Ex.B17 47
---------------------------------------------------
Exs.B18 and B19 25
---------------------------------------------------
Ex.B20 7
---------------------------------------------------
Ex.B21 48 and 49
---------------------------------------------------
Ex.B22 2, 3, 4 and 5
---------------------------------------------------
Exs. 23, 27, 28, 29, 32, 34 6
---------------------------------------------------
Ex.B24 4
---------------------------------------------------
Ex.B25 19
---------------------------------------------------
Ex.B26 46
---------------------------------------------------
Ex.B30 34
---------------------------------------------------
Ex.B31 49
---------------------------------------------------
Ex.B33 34
---------------------------------------------------
Ex.B35 26
---------------------------------------------------
Ex.B36 Part of Item No. 6
---------------------------------------------------
From the above said chart is it obvious that the defendants were able to produce only documents showing purchase of those items alone by
Mahalinga Padayachi. The remaining items found included in Plaint ''A'' schedule, in the absence of any other document and in the light of the
admission made by the defendants that the ''A'' schedule comprises not only the properties purchased by Mahalinga Padayachi but also his
ancestral properties should be construed to be the ancestral properties inherited to him.
Though the defendants might have taken a stand that Mahalinga Padayachi earned a lot by getting rights of fishing in tanks, right for toll
collection in the market and Government Arrack shop license in auctions, they were not able to produce any account to show how much was the
income derived by him from such sources and how much was the income derived by him from the ancestral properties. In fact most of the above
said properties were purchased by Mahalinga Padayachi before 1966. Exs.B14 to B25 are the sale deeds under which the properties were
purchased before 1996. Only the properties purchased under Exs.B26 to B36 were made in the year 1966 and subsequent to that. Majority of
the properties were purchased prior to 1966. There is no document to show that the Mahalinga Padayachi had income from fishing rights, Arrack
shop and toll collection in the weekly market prior to 1966. Ex.B6 series contains three receipts for the payments made on 26.1.1966 for the
fishing rights taken in auction. The total amount was only Rs. 118. There is no other document to show that he got such fishing rights in any other
year. Therefore, the said documents are not enough to show that Mahalinga Padayachi got sufficient amount as income from fishing in the tanks.
Exs.B7, B8, B9 and B10 are the documents showing that Mahalinga Padayachi had taken Arrack shops on lease. The same pertains to the years
1971 onwards. As seen from Exs.26 to 36, most of the properties purchased under the said sale deeds were purchased before 1971, especially
the properties purchased under Exs.B26, B28, B29, B30, B31 and B32 were purchased prior to 1971. Therefore, the income derived from the
said Arrack shop business could not have been the source of investment for the purchase made under the said deeds. Only 5 sale deeds have
come into existence subsequent to 1971. By the time the extent of property owned by Mahalingam, both ancestral and purchased, became large in
extent capable of yielding income which could be surplus after meeting the family expenses. Exs.B11 contains 4 receipts showing payment of rent
for the toll collection in the weekly sandy. Those are of the years 1980, 1982 and 1988. All the properties were purchased several years prior to
the date of the earliest of the earliest of those receipts. Therefore, the income allegedly derived from Toll collected in sandy could not have been
used for purchasing the properties under Ex.B14 to B36. There is no evidence to show that Mahalinga Padayachi did have any other income apart
from the income derived from the ancestral properties and the properties acquired with the help of the income derived from the ancestral
properties for making investments in getting fishery rights, Arrack shop business and the right to collect toll fee in the weekly markets. Even if it is
assumed that the amounts earned by Mahalinga Padayachi from those business could be attributed to his personal efforts, there is nothing to show
that the said amount was invested for acquiring the properties in question. When the income from the family properties was available with
Mahalinga Padayachi as the karta of the family, the mere fact that he was also deriving income from other sources like those mentioned earlier will
not be enough to show that the said income was kept separate and that was used for acquiring the properties in question. In fact Mahalinga
padayachi is said to have made a registered Will on 30.5.1990 , which has been marked as Ex.B37. A certified copy of the same has been
produced and marked by the plaintiff as Ex.B13. In the said Will itself, no distinction has been made between ancestral properties and the
properties acquired by Mahalinga Padayachi. It seems Mahalinga Padayachi, on an erroneous assumption of law that whatever properties that
stood in his name either ancestral or acquired using the income derived from the ancestral property or self acquisitions shall be his absolute
properties over which he would have absolute power of disposition. That is why the Will has been made in respect of properties which are
ancestral as well as the properties purchased by Mahalinga Padayachi.
Moreover, it is a fact not in dispute that Mahalinga Padayachi had ancestral properties and he happened to be the karta of the Hindu undivided
family consisting of himself and the respondent herein/plaintiff as coparceners. As the coparcenery property of the joint family was with Mahalinga
Padayachi, who was in management of the affairs of the family as well as its properties, the acquisition made by such karta shall be deemed to be
the acquisition made out of the income derived from the joint family nucleus. Of course it is true that in Amirthalingam v. Uthayathamma and 15
Ors. reported in 1999 2 L.W. 713, a learned single Judge of this Court held that the mere existence of nucleus alone was not enough and that it
must be proved that there was surplus income for the purchase of other properties and such income must be in the hands of the managing member.
Similarly, in Thangayal and Ors. v. Thangammal and Anr. reported in (2008) 3 MLJ 1390, another learned Judge of this Court held that the
existence of joint family property would not lead any presumption that the property in question was acquired by the member of the family from the
income derived from the joint family property and that the burden of proving the same would rest on the person asserting such purchase to be
made from the joint family income. In P.R. Kannaiyan (died) and Others Vs. Ramasamy Mandiri and Others, a Division Bench of this Court held
that when income from the joint family property was not sufficient to maintain the family, it cannot be said that there was any surplus and that the
income from such property was sufficient for acquiring the other properties. Correctness of the view expressed by the Court in the said judgments
cited by the learned Counsel for the appellants cannot be questioned.
On the other hand, the case on hand could be distinguished from those cases. In all those cases the fact that the joint family had sufficient
property yielding income which was surplus to be utilized for the purchase of the properties in question or that such income was available with the
Manager or karta of the family for purchasing the properties in question was neither admitted nor proved. Per contra, in the present case deceased
Mahalinga Padayachi was basically an Agriculturist and till 1971 he was not having any avocation other than agriculture. It has also been proved
rather admitted that agricultural properties yielding income was available with him. Though the defendants might have taken a stand that Mahalinga
Padayachi had other sources of income like doing cultivation in the lease hold lands and getting fishery rights in the tanks and toll collection rights in
the weekly markets and running Arack shop, the said business were done only after the acquisition of majority of the properties. There is not even
a scarp of paper to show that Mahalingam was having leasehold land from which he derived income. On the other hand, before 1966 during which
period majority of the lands were purchased, Mahalinga Padayachi was proved to have no other avocation than agriculture and that he was doing
cultivation in the lands belonging to the joint family. It is also an admitted fact that the entire property, both ancestral and the properties purchased
by Mahalinga Padayachi in his name, were in his possession and management. Clear evidence has been adduced by PW1 that the ancestral
properties yielded sufficient income and from the income derived from the ancestral property, the properties purchased in the name of Mahalinga
Padayachi were purchased. The said evidence coupled with the admission on the part of the defendants shall be enough to discharge the burden of
the plaintiff to show that there was joint family nucleus; that the same was yielding income which was available with Mahalinga Padayachi, the karta
of the family and that the karta viz., Mahalinga Padayachi did not have no other income till majority of the properties were purchased. The initial
burden cast on the plaintiff of proving the existence of joint family nucleus, sufficiency of the income derived from the joint family income and
availability of such income with the karta of the family so as to cause the shifting of the burden on the karta to prove that the acquisitions were
made without the aid of the joint family income. In P.R. Kannaiyan (died) and Others Vs. Ramasamy Mandiri and Others, a Division Bench of this
Court held that the said principle was not applicable as it was established that the karta in the said case had some separate and independent
income. The observation of the Division Bench is extracted here under:
It is apparent that an exception is carved out in the matter relating to acquisition in the name of Karta, where it is proved that Karta had no
independent income and he is in possession of some nucleus and not necessarily sufficient nucleus of the joint family property. In such a case, even
where sufficient nucleus is not proved but existence of some nucleus is proved and it is further proved that Karta or Manager, in whose name the
property had been purchased, had no independent income, the burden is shifted to the Karta to prove that the property has been acquired without
the aid of the joint family and with the own separate income of the Karta or the Manager.
In the case on hand, besides the fact that clear evidence has been adduced on the side of the plaintiff to the effect that there were joint family
nucleus in the form of immovable properties yielding income and the same were available with Mahalinga Padayachi as the Karta of the family,
there is an admission on the part of the defendants that Mahalinga Padayachi was having ancestral properties and some of the properties listed in
plaint ''A'' schedule are the ancestral properties. The plaintiff has also proved that Mahalinga Padayachi did not have any other income till 1971,
except a small amount in the year 1996 out of the fishing rights taken in auction, when most of the properties acquired in the name of Mahalinga
Padayachi were purchased. We have already seen that the acquisitions made by Mahalinga Padayachi under Exs.B15 to B25 were made during
the period when Mahalinga Padayachi did not have any independent income other than the income derived from the joint family properties. Under
such circumstances, the acquisitions made in Exs.B26 to B36 are also presumed to be made with the help of the income derived from the joint
family nucleus. Therefore, it is a fit case in which the initial burden cast on the plaintiff shall be held to have been discharged and that the burden
stands shifting on the defendants to prove that the acquisitions made by Mahalinga Padayachi were made without the aid of the income derived
from joint family nucleus. The defendants have miserably failed to discharge the said burden of proof. The learned trial Judge on a proper
appreciation of evidence and correct application of the Principles of law, came to the conclusion that all the properties described in plaint ''A''
schedule were the joint family properties belonging to the Hindu undivided family consisting of Mahalinga Padayachi and his son viz., the
respondent herein/plaintiff as coparceners. There is no defect or infirmity in the above said finding of the trial Court and the said finding deserves to
be confirmed.
Point No: 4
It is the contention of the appellants/defendants that in case all the properties shown in plaint ''A'' schedule are construed to be the joint family
properties, then the properties described in plaint ''B'' schedule should also be held available for partition, since according to them they were also
acquired from out of the joint family income derived from the joint family nucleus, which was made available to the respondent herein/plaintiff for
purchasing the said properties. Per contra, it is the contention of the respondent/plaintiff that all the properties described in plaint ''B'' schedule
where the acquisitions made by him from out of the income derived from the separate properties of his wife Danalakshmi gifted to her by her
father. The contention of the respondent/plaintiff is to the effect that there is no disruption of the joint family status between himself and his father till
the death of Mahalinga Padayachi and both of them were jointly contributing their labour in the joint family properties. It is an admitted fact that the
respondent/plaintiff did not have any other avocation than agriculture. He is not proved to have any separate property of his own to yield income
for the purchase of the properties described in plaint ''B'' schedule. It is also not the case of the respondent/plaintiff that he purchased those
properties from the income derived from any other source. It is his specific stand that his wife Danalakshmi had got about 3 acres of land by way
of gift from her father and out of the income derived from the said property of Danalakshmi, the properties described in plaint ''B'' schedule were
purchased by him. Item No. 4 in plaint ''B'' schedule along with another 8 cents of land was purchased under Ex.A2 by the plaintiff on
05.05.1976. A part of Item Nos. 1, 2 and 3 was purchased by the plaintiff on 07.7.1976 under Ex.A3. The remaining portion of Item Nos. 1 to 3
was purchased by the plaintiff on 30.8.1978 under Ex.A4.
It is pertinent to note that Mahalinga Padayachi was one of the attestors of Ex.A2 sale deed. Therefore, it is obvious that Mahalinga Padayachi
and his son viz., the plaintiff were in cordial terms and were living together when the said purchase under Ex.A2 was made. The case of the
defendants is that only after the plaintiff contracted a second marriage against the advise and wishes of his parents, they had to part with each
other. The cumulative effect of the evidence adduced on both sides especially the evidence of PW1 regarding the age of his daughter through his
2nd wife, the time gap between the date of his marriage with 2nd wife and date of birth of his daughter through his second wife, the same could be
somewhere in 1990. Till then, the plaintiff and his father Mahalinga Padayachi were together and were not divided. The plaintiff himself claims that
the acquisitions made in the name of Mahalinga Padayachi under documents contemporary to the documents Exs.A2 to A4 were the acquisitions
made for the joint family and that he and his father were dwelling under the same roof as one family. As such, his evidence itself lends support to
the case of the defendants that the properties acquired under Exs.A2 to A4 were purchased out of the income derived from the joint family
nucleus, which was made available to the plaintiff by the Karta, Mahalinga Padayachi. That is the reason why Mahalinga Padayachi has chosen to
attest Ex.A2 sale deed. It shall be pertinent to note that all the properties purchased under Exs.A2 to A4 viz. the properties described as items 1 to
4 in the plaint ''B'' schedule were purchased prior to the date on which the plaintiff''s first wife was given some properties as gift by her father. The
gift settlement deed executed by the father of Danalakshmi in her favour has been produced and marked as Ex.A14. It was executed on
23.7.1980. Therefore, it is obvious that the purchases made prior to the said date could not be with the help of any income derived from the
property which was given as gift to Danalakshmi by her father in 1980. Therefore, all the properties described as items 1 to 4 in plaint ''B''
schedule should have been purchased only from the joint family income made available to the plaintiff by Mahalinga Padayachi. Only a small extent
of 0.06.0 hectares i.e., 15 cents described as Item No. 5 in the plaint ''B'' schedule was purchased by the plaintiff under Ex.A1 on 24.11.1987.
The learned trial Judge has analysed the evidence adduced on both sides in this regard and came to the correct conclusion that the properties
described in plaint ''B'' schedule were also the acquisitions made with the help of the income derived from the joint family nucleus, which was made
available by Mahalinga Padayachi, the karta of the family to the plaintiff. The Court below has also rightly arrived at a conclusion that the
contention of the plaintiff that the said properties were purchased out of the income derived from the properties of his first wife Danalakshmi gifted
by her father to her stands disproved by his document Ex.A14 itself. The Court below has arrived at a correct conclusion that the properties
described in plaint ''B'' schedule were also the properties of the joint family consisting of the Mahalinga Padayachi and the plaintiff as coparcener.
There is no defect or infirmity in the said finding and hence, there is no scope for any interference with the same. The said finding also deserves
confirmation.
Point No. 2
Whether the Will propounded by the defendants is genuine and valid is the next question to be taken up for discussion. According to the
appellants/defendants Mahalinga padayachi die not die intestate but died leaving registered Will dated 30.5.1990 bequeathing his properties to his
daughters viz., appellants 2 and 3/defendants 2 and 3 alone. The original Will has been produced as Ex.B37. As the said Will is a registered one, a
certified copy of the same has been obtained by the plaintiff and produced as Ex.A13. The appellants/defendants have come forward with a clear
case that since Mahalinga Padayachi was not happy with the activities of his son viz., the plaintiff and since he was aggrieved by the 2nd marriage
contracted by the plaintiff against the advise and wishes of Mahalinga Padayachi, he chose to make the Will bequeathing his properties in favour of
his daughters alone viz., appellants 2 and 3/defendants 2 and 3 alone. The plaintiff, besides refusing to admit the genuineness of the Will, has also
contended that the Will could not be true as the same is unnatural in so far as the only son of Mahalinga Padayachi viz., the plaintiff and his wife
viz., the first appellant were totally excluded. On the other hand, the appellants/defendants have come forward with a clear explanation as to the
reason for the exclusion of the son and the wife. The defendants contend that because of his (plaintiff''s) marriage with his second wife against the
advise and wishes of his parents, he was sought to be excluded. So far as the wife viz., the first appellant is concerned, it is the contention of the
appellants/defendants that the testator viz., Mahalinga Padayachi was of the view that she would be looked after by her daughters. In this
connection, though the plaintiff would have stated that his first wife Danalakshmi herself arranged for his second marriage due to her ill-health, there
is no other evidence except the ipse dixit of PW1 to prove the same. Further more, plaintiff himself has not stated that his second marriage was
either arranged by or performed by his parents. He has simply stated that his first wife arranged for his 2nd marriage. plaintiff''s first wife
Danalakshmi has not been examined to show that there was no strained relationship between the plaintiff and his father pursuant to the 2nd
marriage of the plaintiff or to show that the contention of the defendants that the plaintiff contracted a second marriage after deserting the first wife
and her daughter with the object of getting a male issue through his 2nd wife was false. 21. Admittedly, for about 10 years prior to the death of
Mahalinga Padayachi, the plaintiff and Mahalinga Padayachi were holding separate family cards. Similarly, the first wife of the plaintiff was holding
a separate family card. The reason assigned by the plaintiff as PW1 that they had three family cards for the purpose of getting more kerosine is far
from being acceptable. Of course, it is true that the testator viz., Mahalinga Padayachi has not chosen to assign any reason for the exclusion of his
son, the plaintiff from the beneficiaries of the Will. For that the defendants have come forward with a clear plea, which stands substantiated by the
oral evidence of Dws 1 to 3, that the 2nd marriage of the plaintiff against the advise of his parents and his wayward life were the reasons that made
Mahalinga Padayachi to make a Will bequeathing the properties in favour of his daughters excluding his son. The reason assigned for exclusion of
the wife of Mahalinga Padayachi is also quite tenable. Under such circumstances, the contention of the plaintiff that the Will is an unnatural one and
hence could not be genuine cannot be accepted.
23.On the other hand, the appellants/defendants have adduced clear evidence through Dws 1 to 3 in proof of the execution of the Will by the
testator while he was in sound state of mind. The Will was executed in 1990. Admittedly, Mahalinga Padayachi died on 02.02.1999. If at all the
Will was executed out of sudden anger, he could have changed it during his life time as he lived for about 9 years after making the Will. But since
Mahalinga Padayachi was determined to bequeath his properties to his daughters alone, he has not done so. Apart from that, there is no clear
evidence on the side of the plaintiff that Mahalinga Padayachi was not in sound disposing state of mind or that he was physically or mentally infirm,
when the Will in question was made. On the other hand, the appellants/defendants have led clear evidence not only through DW1, but also through
DW2, one of the attestors and also DW3 the scribe. Dws 2 and 3 have spoken in one voice that the Will was made by Mahalinga Padayachi on
his own volition when he was in sound disposing state of mind and that the attestors saw the testator signing Will and the testator saw the attestors
signing the Will. The conditions prescribed for proving the Will which is required by law to be attested has been scrupulously fulfilled. The
credibility of the witness examined as Dws 2 and 3 have not impaired in anyway by cross examination. It is also a fact admitted by PW1(plaintiff)
that one of the attestors of the Will by name Pavadai Padayachi is no more. PW1 himself has admitted it. The defendants have also produced
Ex.B38 death certificate to show that Pavadai Padayachi is no more. The other witness viz., Nallappa Padayachi has been examined as DW2. He
is admittedly a close relative of the parties. PW1 himself has admitted in his evidence that the said witness was the son of the elder sister of his
grandmother Chinnammal. When the evidence adduced on the side of the defendants through Dws 1 and 3 is considered in juxtaposition to the
evidence adduced on the side of the plaintiff, one could arrive at the only conclusion that the Will is proved to be genuine. The Court below, on
proper appreciation, has arrived at the said conclusion that the Will has been proved to be genuine. There is no reason, whatsoever, to interfere
with the same. Hence the said finding deserves confirmation.
Point Nos. 3 and 5:
In the forgoing paragraphs, we have seen that the properties described in plaint ''A'' schedule and also the properties described in plaint ''B''
schedule were the joint family properties belonging to the Hindu undivided family consisting of Mahalinga Padayachi and his son viz., the plaintiff.
Therefore, in all those properties Mahalinga Padayachi had got 1/2 share and the plaintiff had got 1/2 share as a coparcener. So far as the 1/2
share of Mahalinga Padayachi is concerned, he has not died intestate. He has made a Will bequeathing the properties described in the Will to his
daughters, the appellants 2 and 3/defendants 2 and 3 alone. But the recitals found in the Will shows that Mahalinga Padayachi (the testator)
purported to give the entire properties described in the Will to the appellants 2 and 3/defendants 2 and 3 ignoring the fact that the plaintiff had 1/2
share in them as a coparcener. Therefore, the Will shall not affect the share of the plaintiff as a coparcener in the properties bequeathed under the
Will Ex.B37. The Will shall have the effect of conferring title in respect of Mahalinga''s 1/2 share in the properties described in the Will on the
appellants 2 and 3/defendants 2 and 3. It is pertinent to note that Ex.B37 does include entire ''A'' schedule properties. Only some of the items of
plaint ''A'' schedule, namely Items Nos. 1 to 7, 13 to 23, 25 to 34, 37, 38, 40 to 44 and 46 to 49 were made the subject matter of suit. Therefore,
the resultant position shall be that the 1/2 share of Mahalinga Padayachi in respect of the properties mentioned in the Will Item Nos. 1 to 7, 13 to
23, 25 to 34, 37, 38, 40 to 44 and 46 to 49 shall be governed by the law relating to testamentary succession, whereas he shall be deemed to have
died intestate in respect of all other properties as there is no residuary Clause in the Will covering the properties omitted to be included in the Will.
The Court below has rightly held that the 1/2 share of Mahalinga Padayachi in Item Nos. 1 to 7, 13 to 23, 25 to 34, 37, 38, 40 to 44 and 46 to
49 of ''A'' schedule property alone would become the absolute properties of defendants 2 and 3 by way of testamentary succession and that the
plaintiff shall be entitled to his 1/2 share as coparcener in those items. The Court below has also rightly come to the conclusion that the Mahalinga
Padayachi deemed to have died intestate in respect of items 1 to 7, 13 to 23, 25 to 34, 37, 38, 40 to 44 and 46 to 49 in the plaint ''A'' schedule
and all the properties described in plaint ''B'' schedule in which he had 1/2 share and the plaintiff had 1/2 share as coparceners. It is true that before
the death of Mahalinga Padayachi, Hindu Succession (Tamil Nadu amendment) 1989 came into force. But the said amendment made it a condition
for a daughter to became coparcener that she should not have been married prior to the cut of date viz., 25.3.1989. Admittedly, the defendants 2
and 3 were married prior to the above said date. Similarly, the said amendment was superseded by the Central amendment brought by Hindu
Succession Amendment Act 2005 (Act 1 of 1990) giving the daughters equal rights along with sons in the coparcenery properties. The Hon''ble
Supreme Court in Sheela Devi and Ors. v. Lal Chand and Anr. reported in (2007) 1 MLJ 797 (SC) held that if the succession had opened prior
to the coming into force of the Hindu Succession Amendment Act 2005, the provisions of the amendment Act could have no application. The said
view was followed by a Division Bench of this Court in Smt. Bagirathi and 5 Ors. v. S. Manivanan and Anr. reported in 2008-3-L.W. 1054
wherein it has been held that the Hindu Succession Amendment Act 2005 (Act 39 of 2005) shall not have retrospective effect and the same will
not effect the succession which had opened prior the to coming into force of the said amendment.
Therefore, there is no possibility of holding that the appellants 2 and 3/defendants 2 and 3 would have become coparceners entitled to equal
share as that of the plaintiff and their father by virtue of either the Tamil Nadu amendment or the Central amendment under the enactments cited
above. In fact the same is not the plea raised by the appellants/defendants. As such in respect of the properties regarding which Mahalinga
Padayachi is deemed to have died intestate, the 1/2 share of Mahalinga Padayachi will devolve upon his legal heirs as per the rule of succession as
found in proviso to Section 6 of the Hindu Succession Act, as the appellants 1 to 3 were his Class I legal heirs on the date on which succession
opened. His 1/2 share in those items shall devolve equally upon the appellants 1 to 3 and the plaintiff. Each one shall be entitled to 1/4th out of the
1/2 share of Mahalinga Padayachi. Thus, in respect of those items, each one of the defendants 1 to 3 shall be entitled to 1/8th and the plaintiff shall
be entitled to 1/8th share. When 1/2 share of the plaintiff as coparcener is added, the total share of the plaintiff shall get enhanced to 5/8. As the
shares as indicated above have been rightly calculated by the Court below, the Court below has not committed any error or infirmity in arriving at
the conclusion that the plaintiff is entitled to 1/2 in items 1 to 7, 13 to 23, 25 to 34, 37, 38, 40 to 44 and 46 to 49 and 5/8 share in Items 8 to 12,
24, 35, 36, 39, 45, 50 and 51 in plaint ''A'' schedule properties and Items 1 to 5 of plaint ''B'' schedule properties. The preliminary decree passed
by the learned trial Judge declaring the share of the plaintiff as stated above and directing division of such share does not deserve any interference
and on the other hand deserves confirmation.
Though the plaintiff has incorporated a plea in his plaint that he borrowed a sum of Rs. 5000/- as hand loan from one Ramalingam, neither the
said Ramalingam or anybody else was examined in proof of the same. Except the ipse dixit of PW1, there is no other evidence. Similarly, the plaint
allegation that he borrowed a sum of Rs. 10000/- on a promissory note from one Ramakrishnan was sought to be proved by examining the said
Ramakrishnan as PW2 and by the production of Ex.A9 purporting to be the promissory note under which the plaintiff had borrowed a sum of Rs.
10,000/- from PW2. It is the contention of the plaintiff that the amount borrowed was Rs. 10000/- and the pronote was executed for Rs. 10000/-
only. On the other hand, Ex.A9 which is projected as the pronote executed by the plaintiff in favour of PW2, recites the amount borrowed as Rs.
20000/-. Therefore, no credence can be attached either to the said document or to the evidence of PW2. Though Exs.A10 to A12 have been
produced in an attempt to show that the plaintiff and his father had jointly borrowed from Agricultural Primary Cooperative Bank and Canara
Bank, Ex.A10 does not show any outstanding loan. Though, Ex.A11, a letter from the Special Officer Agricultural Primary Cooperative Bank,
Puduchatiram has been produced, nobody connected with the said bank has been examined in order to prove the correctness of the particulars
found in the said document. Ex.A12 will show that the loan availed by Mahalingam had been closed in 2000 itself. In addition to that no other
person connected with the said document has also been examined. Therefore, the finding of the Court below to the effect that the debts cited by
the plaintiff as family debt were not proved does not deserve any interference.
For all the reasons stated above, this Court comes to the conclusion that there is no reason whatsoever to interfere with the well considered
judgment and preliminary decree of the learned trial Judge; that there is not merit either in the appeal or in the cross objection and that both the
appeal and the cross objection are liable to be dismissed. Considering the facts and circumstances of the case, this Court is of the view that there
shall be no order as to cost.
In the result, the appeal and the cross objection are dismissed and the preliminary decree passed by the trial Court is confirmed. There shall be
no order as to cost.