K.K. Palanisamy Gounder, K.S. Subbiah Gounder, K. Mariappan, Easwaramurthy and Saradambal vs Amirthammal

N.V. Balasubramanian, J.—This Letters Patent appeal is directed against the judgment and decree of the learned Single Judge holding that

some of A-schedule properties are not joint family properties.

The defendants are the appellants herein and the respondent Amirthammal is the plaintiff in the suit. She filed the suit for partition claiming 1/6th

share in A-schedule properties and 1/12th share in B-schedule properties. In this appeal, we are concerned only with the properties covered in

Exs.A-1, A-4 and A-9 which were subject matter of partition between the father of the plaintiff Kandasami Gounder and his brothers by a

document of the year 1936, marked as Ex.B-1. The case of the plaintiff is that those properties covered in Exs.A-1, A-4 and A-9 are the separate

properties of her paternal grandmother Kandalkal, mother of Kandasami Gounder and though those properties were subject matter in the family

partition made in the year 1936 between Kandasami Gounder and his brothers, the properties continued to be the separate properties of

Kandasami Gounder to whom the properties were allotted and they were not treated as joint family properties and therefore, as separate

properties of Kandasami Gounder, she is entitled to a share in the properties. The defendants resisted the suit on the ground that they were joint

family properties.

Both the trial Court and the learned Single Judge found that the properties covered in Exs.A-1, A-4 and A-9 were separate properties of

Kandasami Gounder, though those properties were subject matter of partition in the year 1936 under Ex.B-1. Learned Single Judge held that the

character of the properties did not get merged with the character of joint family properties and they continued to be the separate properties

Kandasami Gounder and on the death of Kandasami Gounder, the plaintiff would be entitled to 1/6th share. In this appeal, we are concerned, as

earlier stated, only with the question whether the plaintiff is entitled to 1/6th share in the properties covered in Exs.A-1, A-4 and A-9.

We heard Mrs. Chitra Sampath, learned counsel appearing for the appellants and Mr. S.K. Raghunathan, learned counsel appearing for the

respondent. We have also gone through the document dated 29.7.1936, marked as Ex.B-1. The document is a deed of partition between

Kandasami Gounder and his brothers, Ramasami Gounder and Karuppasami Gounder. It is found that Kandasami Gounder''s mother Kandalkal

died before the deed of partition was drawn up on 29.7.1936. It is not denied that all the properties were purchased in the name of Kandalkal,

and the defendants have not established that the properties which are subject matter of appeal were purchased in the name of Kandalkal as a

benamidar for her husband, nor they were able to establish that joint family funds were utilised for the purpose of purchase of the properties.

However, it is found by the learned trial Judge, on the evidence of P.W.1, that the partition deed dated 29.7.1936 took place after the death of

mother of Kandasami Gounder.

We have perused the document, Ex.B-1 and there is no dispute that the deed of partition dated 29.7.1936 by which the partition among the

members of the joint family was effected included the properties purchased in the name of Kandalkal, mother of Kandasami Gounder apart from

other joint family properties. The recitals in the deed also show that all the three brothers were enjoying the properties as joint family properties

and all the properties, both joint family properties as well as the properties obtained from the mother Kandalkal, on her death, were pooled

together and the partition of all the properties was effected among the three brothers. The deed also provides for the payment of owelty to

Kandasami Gounder by other two brothers as the value of the properties allotted to Kandasami Gounder was much less than the value of the

properties allotted to other two brothers. We also find that apart from the properties covered in the documents, Exs.A-1, A-4 and A-9 which

were allotted to Kandasami Gounder, other items of joint family properties were allotted to Kandasami Gounder and he was also required to

discharge certain family debts and it implies that Kandasami Gounder was required to discharge the family debts from and out of the properties

allotted to him. The deed of partition proceeds on the basis that after the death of Kandalkal, mother of Kandasami Gounder, the properties

devolved on the three sons and they treated the same as their joint family properties and all the joint family properties were divided in the manner

indicated in the deed. Further, the deed makes no distinction or difference between the properties of Kandalkal devolving on the three sons and

other joint family properties. No doubt, it is true that a Hindu female member of the joint family cannot impress her separate property as joint

family property by throwing the same into the joint family hotchpot, however, it is not the case here that the female member treated her properties

as joint family properties. On the other hand, it is a case where after the death of the mother, her sons on whom the properties devolved had

treated the properties as joint family properties along with other joint family properties and divided the properties in the year 1936.

Though the defendants have not established that Kandalkal was a benamidar of the father of Kandasami Gounder, nor they established that the

properties were purchased in the name of Kandalkal from and out of the funds of joint family properties, we are of the view that the recitals in the

deed of partition should be given due weight and the fact that the parties have acted according to the deed of partition from the year 1936 shows

that the three brothers have treated the properties as joint family properties and effected a partition among themselves. Once we hold that the deed

makes no distinction between the properties of joint family members and the properties of Kandalkal, the necessary consequence is that all the

properties covered in the deed of partition should be taken to be joint family properties and the plaintiff would be entitled to a share only on the

basis that the properties are joint family properties. Further, the employment of the expression in the deed, namely, @gpJuhu;$pj tifapy;

ghj;jpag;gl;L ehkd; mDgtpj;J tUfpw@ shows that the properties were obtained from ancestral sources and they also enjoyed them as joint family

properties. The recitals show the unequivocal intention of the three brothers of having treated the properties obtained from their mother as joint

family properties. Learned Single Judge was of the view that there was no independent evidence let in by the defendants that the properties in

question are joint family properties. A careful reading of the document shows that when there are intrinsic evidence in the document itself to show

that the properties in question are joint family properties, the case pleaded by the defendants cannot be rejected on the score that they failed to

lead independent evidence on that aspect of the matter.

Since the appeal is concerned only with the properties covered in Exs.A-1, A-4 and A-9, we are not interfering with the finding of the learned

Single Judge rendered with reference to other items of suit properties. We therefore hold that the properties covered in Exs.A-1, A-4 and A-9 are

joint family properties of the plaintiff''s father and the plaintiff would be entitled to a share on the basis that the properties are joint family properties

of Kandasami Gounder. The Judgment and decree of the learned Single Judge is modified and the learned trial Judge is directed to quantify the

share of the plaintiff on that basis as during the pendency of this appeal, her mother had also passed away. The appeal stands allowed to the above

extent. However, in the circumstances, there will be no order as to costs.