G. Sridhar vs R. Malathi and Others

Aruna Jagadeesan, J.—The case of the plaintiff as set out in the plaint is as follows:

a. The father of the Plaintiff late Gubendra Achari was a goldsmith and he died intestate on 2.2.1982, leaving behind him no estate of his own either

movable or immovable. The elder brother of the Plaintiff G.Raghupathy died intestate on 9.11.1999, leaving behind the Defendants 1 to 4 as legal

heirs. The 1st Defendant is the widow of the deceased G. Raghupathy. The Defendants 2 to 4 are the daughters and son of the deceased G.

Raghupathy and the 5th Defendant is the tenant with respect to a portion in the first floor of the premises bearing No. 29/15, Palli Street,

Chintadripet, Chennai-2.

b. The Plaintiff and his elder brother [deceased] Raghupathy were doing goldsmith work along with their father during his life time. After the death

of their father, the Plaintiff and the deceased G. Raghupathy constituted a Hindu undivided family and they were continuing the goldsmith business.

The Plaintiff was specialized person in making Thali and the Plaintiff earned more money on account of his hard work and the deceased elder

brother Raghupathy was not showing much interest in the goldsmith work.

c. Out of the income of the joint family consisting of the Plaintiff and deceased G.Raghupathy, they purchased a vacant house site to an extent of

724 sq.ft at No. 61/2, Agraharam Street, Chintadripet, Chennai-2, which is the item (1) of the suit properties, under a sale deed dated

28.10.1987 in the joint name of the Plaintiff and the deceased G.Raghupathy. Subsequently, out of the earnings of the Plaintiff and his brother

deceased Raghupathy, a residential building consisting of ground floor, first floor and second floor was constructed in the house site in item (1) of

the suit properties after obtaining plan approval in the joint name of the Plaintiff and his elder brother deceased Raghupathy by spending about a

sum of Rs. 9 lakhs and the Plaintiff occupied the first floor for the purpose of goldsmith business. The Plaintiff''s deceased brother and his family

members occupied the first floor of the above said residential house and the Plaintiff and his wife the younger sister of the first Defendant occupied

second floor for residential purpose.

d. The Plaintiff and his elder brother Raghupathy purchased another residential house to an extent of 1240 sq.ft with a building thereon at No.

29/15, Palli Street, Chintadripet, Chennai-2 more fully described in Item (2) of the suit properties under a sale deed dated 9.2.1996 in the name of

the Plaintiff and his elder deceased brother Raghupathy. The title deeds for both the items (1) and (2) of the suit properties are with the Plaintiff. Till

1999, the Plaintiff and his elder deceased brother Raghupathy were enjoying the items (1) and (2) of the suit properties as co-owners.

e. The Plaintiff and the deceased brother G. Raghupathy also opened a shop prior to 9.11.1999 at No. 16, Chinna Rowther Street, Noor

Mohideen Complex, Triplicane, Chennai-15 for their goldsmith business in the name of ""Raghul Dye Works"". Out of the hard earned income and

funds of the Plaintiff, the Plaintiff purchased tools and machineries worth about Rs. 2 lakhs for manufacturing jewels. Tools and machineries are

shown as item (3) of the suit properties and items (4) of the suit properties are the tools, machineries and articles purchased worth about Rs. 5

lakhs and maintained by the Plaintiff at No. 16, Chinna Rowther Street, Noor Mohideen Complex, Triplicane, Chennai-5.

f. After the death of his elder brother, the Plaintiff was managing both the shops and earning from the said shops and purchased lot of jewels both

diamond and gold for the Defendants 1 to 4. The Plaintiff was spending money for the maintenance of the Defendants 1 to 4. In the year 2001,

there was no cordial relationship between the members of the Plaintiff and the 1st Defendant family. Hence, the 1st Defendant forced the Plaintiff

and his wife to leave item (1) of the suit properties by giving lot of trouble not only directly but also through her persons. The Plaintiff came out of

the item (1) of the suit properties and now the Plaintiff is residing at No. 1/1, Vedagiri Street, Chintadripet, Chennai-2 and the 1st Defendant and

her family members are residing in the item (1) of the suit properties and keeping the jewels of his wife, who is the own sister of the 1st Defendant.

g. The second floor of item (1) of the suit properties was let out by the 1st Defendant to a tenant for a monthly rent of Rs. 3000/-. In April 2004,

the 1st Defendant forcibly took possession of the ground floor business portion and did not allow the Plaintiff to carry on business in the ground

floor portion of the item (1) of the suit properties. The business shop in item (4) of the suit properties has been taken by the 3rd Defendant and the

tools and machineries described in items (3) and (4) of the suit properties have also been taken by the Defendants 1 to 4. A portion in the first

floor of the item (2) of the suit properties was let out by the deceased Raghupathy to the 5th Defendant for a monthly rent of Rs. 500/- and since

the 5th Defendant vacated the same on 24.3.2004, the Plaintiff kept the same under lock and key. On 26.3.2004, the 5th Defendant broke open

the lock and trespassed into the portion again, for which the Plaintiff also gave a complaint with the police concerned.

h. The 1st Defendant has been forcing the Plaintiff to execute a release deed with respect to his half share in items (1) and (2) of the suit properties,

for which the Plaintiff is not willing, unless and until he is paid the market value of his half share. The 5th Defendant is not paying any rent and he is

liable to be evicted from the tenancy portion. The Plaintiff issued a legal notice on 11.6.2004 requesting the 1st Defendant to come for a

settlement. But, the 1st Defendant issued a reply notice dated 20.6.2004 refusing to settlement and the Plaintiff issued a rejoinder notice dated

30.6.2004. Hence, the Plaintiff has filed this civil suit with the reliefs as stated supra.

Notice ordered to the 5th Defendant has been returned as ""refused"" and served by way of affixture and there is no representation for the 5th

Defendant.

The case of the Defendants 1 to 4 as set out in the Written Statement is as follows:

a. The fact that the Plaintiff and his elder deceased brother G.Raghupathy were doing the goldsmith work along with their father as stated by the

Plaintiff is not correct and the Plaintiff had no individual income and the Plaintiff was taking training under him. The husband of the 1st Defendant

took care and showed proper course of life to the Plaintiff. There was no family business nor joint family income at the time of purchase of the suit

properties. The 1st Defendant''s husband purchased the item (1) of the suit properties from his own income in joint names of the Plaintiff and her

husband out of love and affection and allowed the Plaintiff to reside in the second floor of item (1) of the suit properties.

b. Item (2) of the suit properties was also purchased by the deceased brother Raghupathy out of his earning only and not as claimed by the Plaintiff

and the goldsmith business only stood in the name of the deceased brother Raghupathy and not in the name of the Plaintiff or even jointly. The

rental income from the items 1 and 2 were shared between the Defendants and the Plaintiff till April 2004 and thereafter, dispute had arisen.

c. Items (3) and (4) of the suit properties absolutely belonged to the deceased Raghupathy and the Plaintiff has no right, title or interest in the same.

The Plaintiff illegally tried to swindle and swat on all the properties and machineries belonging to the deceased Raghupathy. Out of the said

properties, the Plaintiff is receiving Rs. 8000/- p.m. as rent. Since the Defendants 1 to 4 are not aware of the dealings of the Plaintiff with the 5th

Defendant, the Defendants are unable to agree or refute the charges with respect to the same.

d. The items only (1) and (2) are available for partition and jewels worth Rs. 12,00,000/- are lying with the Plaintiff, which the Plaintiff has not

brought to the above suit and made available for partition. The allegations and averments as stated by the Plaintiff in the plaint are frivolous and

vexatious and hence, this civil suit is not maintainable either in law or on facts and the same is liable to be dismissed with costs.

The following issues were framed for determination:

(1) Whether the Plaintiff is entitled to get a preliminary decree for partition of one half share in the plaint schedule item 1 to 4 property as prayed

for?

(2) Whether the Plaintiff and his brother late Raghupathy constituted a joint family?

(3) Whether the plaint schedule item No. 1 and 2 purchased out of the joint family business income?

(4) Whether the suit is bad for partial partition?

(5) To what relief the Plaintiff is entitled?

On the side of the Plaintiff, the Plaintiff examined himself as PW.1 and marked as many as eleven documents as Exs.P1 to P11. On the side of

the Defendants, the 1st Defendant herein examined herself as DW.1.

Issue Nos. 1, 2, 3 and 5: The Plaintiff and the husband of the 1st Defendant are brothers. Their father Gubendra Achari was a Goldsmith and he

died on 2.2.1982 and he was a specialist in doing gold thali for Bhramin community and his sons also became skillful in the said work. It is not

disputed that he left no estate of his own either movable or immovable property. After his death, both the brothers, that is the Plaintiff and his

deceased G. Raghupathy the husband of the 1st Defendant lived jointly and they continued their profession of their father is also not disputed.

From the evidence placed on record, it is disclosed that the Plaintiff and his brother jointly did the business and out of the income derived from

the joint business, they have purchased items 1 and 2 of the suit properties more fully described in the schedule. Item 1 was purchased in their joint

names by a registered sale deed dated 28.10.1987 and Item 2 by a registered sale deed dated 9.2.1996. Though the Defendants have pleaded

that the entire sale consideration was borne out by the deceased brother G. Raghupathy, out of love and affection, the property was purchased in

the joint name of the Plaintiff, but the evidence clearly indicated that after the death of their father, the Plaintiff and the deceased brother

Raghupathy carried on the business jointly and out of the income so derived, they have purchased items 1 and 2 of the schedule of property.

PW.1 has stated in his evidence that they were carrying on the goldsmith business in Agraharam Street, Chintadripet viz. in the 1st item of the

schedule of property after its demolition and reconstruction and prior to that, the business was carried on in a Shop at Nainiappa Naicken Street,

Chintadripet. That apart, they have started the business in the year 1994 at No. 16, Chinna Rowther Street, Triplicane, a rented building in the

name and style of ""Raghul Dye Works"".

The evidence clearly showed that both the brothers were carrying on the business jointly at least after the death of their father. The suit

properties items (1) and (2) having been purchased in the joint names make it evident that not only the business they carried on was joint business,

but also they had utilised the income for purchasing the properties in joint names. The candid admission made in the Written Statement in

paragraph 24 that the items 1 and 2 are available for partition would resolve the issue.

It is no doubt true that the license for running goldsmith business had been in the name of G. Raghupathy, the brother of the Plaintiff and even

after his death in the year 1999 it only remained in his name. However, after the relationship between the Plaintiff and the 1st Defendant got

strained after the death of Plaintiff''s brother, the Plaintiff had shifted his residence from the Agraharam Street and had started his business at West

Koovam River Road, Chindatripet. But, till then he was looking after the business.

Though the 1st Defendant while she was examined as DW.1 stated that the 1st item of the suit property was purchased out of the income

derived from the exclusive income of her husband, but there is no material or evidence to substantiate her plea. The Plaintiff has married the sister

of the 1st Defendant and in or about 2001, their relationship got strained and the Plaintiff had not only shifted his residence, but also had started his

own business. DW.1 has admitted in her evidence that for about one year after the death of her husband, the Plaintiff was looking after the

business affairs of their family. Therefore, it is evidently clear that the Plaintiff and his brother constituted a joint family and they were doing the

goldsmith business jointly and further have purchased the items 1 and 2 of the schedule property in their joint names. Therefore, the Plaintiff and

deceased brother Ragupathy are each entitled to half share in the items 1 and 2 of the suit properties and on the death of Ragupathy, his half share

devolve upon the Defendants 1 to 4.

Though the Plaintiff has averred that the 5th Defendant has been forcing the Plaintiff to execute a release deed with respect to his half share in

items (1) and (2) of the suit properties, for which the Plaintiff is not willing, there is no evidence to substantiate the same. The Defendants 1 to 4

have stated in the Written Statement that they are not aware of the dealings of the Plaintiff with the 5th Defendant and they are unable to agree or

refute the charges with respect to the same. Further, there is no representation for the 5th Defendant and no relief is claimed by the Plaintiff as

against the 5th Defendant. Therefore, the 5th Defendant is not a necessary party to this suit.

In so far as the item (3) of the suit properties which relate to the movables i.e. tools and machineries in the shop at No. 6/12, Agraharam Street

and No. 15, Chinna Rowther Street, Mohideen Complex, Triplicane are concerned, the Plaintiff has averred that out of his own income and fund

of the Plaintiff, he had purchased the tools and machineries for the purpose of manufacturing jewels including specialized items of thali at No. 61/2,

Agraharam Street, Chindatripet in the Ground Floor premises worth about Rs. 20 lakhs as shown as item 3 of the suit properties. In so far as the

item (4) is concerned, it lies in No. 16, Chinna Rowther Street, Triplicane, worth about Rs. 5 lakhs. But, no details are given as to when he had

purchased and what happened to the machineries that were installed by G.Raghupathy, the husband of the 1st Defendant.

The Plaintiff says that he was forcibly sent out of the house in item (1) of the suit properties and the business in the Triplicane shop has been in

charge of the 3rd Defendant. In his evidence has stated that he cannot give the details of the tools and machineries available at the Shop at

Triplicane as he is not aware of it. However, he would state that one triple body machine and double body machine are there in the said shop.

However, it is admitted by him that all those machines and all the dyes in the Triplicane shop were purchased only by G. Raghupathy. His evidence

indicates that the tools and machineries at the shop at Agraharam Street were purchased jointly by the Plaintiff and his brother.

Even according to the Plaintiff, the machineries have to be changed once in two to three years as it would become worn out. It is not the case

of the Plaintiff that the machineries and tools that were used by Gubendran were available even during the life time of G. Raghupathy. In fact, PW.1

admitted that no tools are available which were used during the life time of his father. Depending on the usage of the tools, it may not be available

due to passage of time and its wear and tear. Even according to the Plaintiff, he lost control over those tools and machineries even in the year 2004

and at this point of time that too after a lapse of nearly five years, it cannot be said with certainty that those tools and machineries are still available

for division. Nothing is elicited from DW.1''s evidence regarding the availability of the tools and machineries as is described in items 3 and 4 of the

suit properties. In such circumstances, without there being any clear and definite evidence regarding the availability of the items 3 to 4 of the suit

schedule, the claim made by the Plaintiff for partition of these items cannot be granted. Hence, I hold that the Plaintiff is not entitled to any share in

so far as the items 3 and 4 are concerned. Accordingly, issue Nos. 1, 2, 3 and 5 are answered.

Issue No. (4): The Defendants in their Written Statement have made a plea in a casual manner that the jewels worth of Rs. 12 lakhs are lying

with the Plaintiff, but there is absolutely no evidence on the side of the Defendants to substantiate their plea. Therefore, the issue that the suit is bad

for partial partition is answered in the negative.

In the result, this suit is allowed in part and the Plaintiff is granted a preliminary decree for partition and separate possession of his half share in

the items (1) and (2) of the suit properties. In respect of the items (3) and (4) of the suit properties, this suit is dismissed. The parties shall bear

their own costs.