P. Ganesan and P. Guruswamy vs Shanmughathai Ammal and Others

A.C. Arumugaperumal Adityan, J.—This appeal has been preferred against the decree and Judgment in O.S. No. 160 of 2005 on the file of

the Court of Subordinate Judge, Srivilliputtur. The plaintiffs are the appellants herein. The suit was filed for partition of plaint schedule Item Nos. 1

to 17 properties.

The brief facts of the plaint relevant for deciding this appeal are as follows:

The genealogy of the plaintiffs'' family is as follows:

Punnavana Nadar

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Shanmugathai Ammal (wife -D1)

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Velayutham P. Ganesan P. Gurusamy Ramarajan Subbammal (died)

(D2) (Plaintiff-1) (plaintiff-2) (D5) (D6)

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S. Seeniyappan (died)

Uma (wife of D2) (D7) (husband of D6)

(D3) |

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Krishnaveni(D8) S. Balasubramanian(D9) S. Murugan (D10)

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Kumaravel (D4)

(son of D2 & D3)

The first defendant is the wife of Punnavana Nadar, who died in 1984. The plaintiffs, D2 and D5 are the sons of the said Punnavana Nadar. D6 is

the daughter of the said Punnavana Nadar. D3 is the wife of D2. D4 is the son of D2 & D3. All of then constituted a joint Hindu family. All the

properties scheudled to the plaint are joint family properties belonging to the children of Punnavana Nadar. Punnavana Nadar was a hardworking

man, was residing at Nathampatti Village, Srivilliputtur Taluk. The 2nd defendant is the eldest son. All the sons were assisting the father. Properties

were purchased in the name of the father, mother as well as the defendants 2 to 4. Though the properties were purchased in the name of the

defendants 2 to 4, the said properties were purchased with the funds of joint family and all joint family properties are liable for division. The

properties were treated as joint family properties. The 2nd defendant was only a teacher and he could not have purchased the plaint schedule

properties with his funds. The properties were enjoyed in common by all the co-sharers. Since the properties are acquired from the father''s funds

after the death of the father, the plaintiffs, D1, D2, D5 & D6 will be entitled to equal share. Thus the plaintiffs claim 2/6th share in the plaint

schedule properties. The 2nd defendant is now attempting to sell the properties, which stand in his name and in the name of his wife. Thus the

plaintiffs thought it fit to have separate possession of their shares in respect of the plaint schedule properties. An attempt to divide the properties

through mediators proved futile. During the pendancy of the suit D6 died. D7 to D11 are added as legal representatives of D6. At the instance of

D11 he was permitted to implead herself as LR of Subbammal-D6. Hence, the suit for partition.

D1 and D8 to D10 remained exparte. D11 submitted to the decree.

The 2nd defendant to 4th defendant filed a joint written statement contending that the suit is bad for mis-joinder and non-joinder all parties. D3

and D4 are unnecessary parties to the suit. The properties which are not liable for partition are also included in the plant schedule. The properties

in the hand of the plaintiffs have been purposely omitted to be included in the plaint schedule. The Court has no territorial jurisdiction to entertain

the suit since several properties mentioned in the plaint schedule lie out side the jurisdiction of the Court. D1 and D6 have colluded together in

instituting the suit. The suit claim is barred by limitation. Even according to the plaintiffs, the partition opens in the year 1984. There was no material

placed before the Court to show that the parties were in joint possession of the plaint schedule properties. The Court fee paid by the plaintiff is not

correct for the purpose of court fee and jurisdiction. The suit is hit by the provisions of Benami Transaction (prohibition) Act 1988. The plaintiffs

cannot ask for partition of the properties separately belonging to these defendants, which are their self-acquired properties. Punnavana Nadar died

on 21.2.1984 at Madurai. The suit properties were not purchased with the funds of joint family as alleged in the plaint. The properties were not

treated as joint family properties and they ware now enjoyed in common. The plaintiffs are not entitled to 2/6th share in the plaint schedule

properties. There was no mediation took place during March-1995 as alleged in the plaint. The plaintiffs have no cause of action to file the suit.

There was no sufficient funds or nucleus of the family to purchase the plaint schedule properties. The landed property bearing S. No. 322 also

shown in Item No. 14 of the plaint schedule, has been settled in favour of the 2nd defendant and the 5th defendant by means of registered deed

dated 26.8.1974 and also provided a considerable income for reaching the aim of the 2nd defendant. The 2nd defendant after completing his

education with the help of scholarship, had started his career as school teacher in 1964 in Kannamangalam Village, North Arcot District. Out of his

own efforts, he completed B.Ed., and then joined service as a Teacher at Nagamalai Jeyaraj Nadar Higher Secondary School. The marriage of the

2nd defendant took place on 11.12.1967 with a daughter of a business magnet at Madurai. The 2nd defendant''s father-in-law A.S.R.

Somasundara Nadar was doing lucrative business in rice mill, which provided an opportunity for the 2nd defendant to step into his aimed goal for

advancement in life. The 2nd defendant has also joined as a teacher in South Gates Nadar School and his teaching profession provided enough

time to concentrate also in business side. The 2nd defendant entered into the business field in the year 1968 itself with his own income and with the

help of his father-in-law. The business included conversion of paddy into rice and selling the same in the wholesale market. Neither the plaintiffs nor

the father or other family members provided any monetary or physical help to the 2nd defendant in his venture. The 2nd defendant worked as a

teacher till the end of 31.5.1972 and he gradually entered into the business field with his own investment and physical labour. The 2nd defendant

with his personal income also began to purchase properties from the year 1971. With the experience he gained under his father-in-law, he began to

establish his own rice mill at Gate Lock Road, Madurai, after getting approval of the plan in his name and also getting hulling licence etc., in his

name. Both the wife of D2 and also D3 are helpful in the business of the 2nd defendant. The 2nd defendant had also taken a lease of the rice mill

premises from one V.P.L. Perumal Naidu of Annuppanadi Village. The 2nd defendant with the help of his wife was able to purchase the leasehold

premises itself and hulling licence was obtained in their name and had obtained licence in their name and had lucrative business with his hard work.

The rice mill owned by him was also named as ""Vathiyar Rice Mill"". He had also purchased landed properties at Chinna Anuppanadi in the name

of D2 to D4 for the purpose of establishing another mill on account of their interest to get agricultural produces. The properties purchased by these

defendants stood in their respective names and they have also paid tax, kist etc., to the properties. The assessment of property tax and income tax

also stood in their respective names. Land acquisition proceedings were taken in respect of the lands owned by these defendants. The residential

house purchased by the third defendant exclusively belongs to her. In the properties purchased by these defendants the plaintiffs have no iota of

rights. Plaint schedule Item No. 1 was purchased as vacant site from out of the personal income of D2 and he constructed a new building over the

site. Punnavana Nadar never exercised any right or control over the said property and to his knowledge, he was only a name lender. Items 2 to 6

are the portions of the rice mill premises called ""Vathiyar Rice Mill"" at 2-B, Gate Lock Road, Madurai. Those properties are private properties of

the defendants 2 to 4. They have obtained licence for running the rice mill and electric service connection for the said industry. They are also paying

the house tax, urban tax in respect of the said properties. Likewise plaint schedule Item Nos. 7, 8 & 9 properties are agricultural lands standing in

the name of the defendants 2 to 4 respectively and they are also under their personal cultivation. The revenue records also stand in their name,

besides the electric service connection. They are also paying land tax for those properties. These defendants have also proposed to establish

another modern rice mill in the said land after a portion of the land was acquired for the formation of Ring Road. The 2nd defendant was

instrumental for purchasing those properties from out of his self earning and also from out of these defendant''s personal money. Though plaint

schedule Item No. 9 was purchased in the name of Punnavana Nadar for the benefit of the 2nd defendant in trust, the father or the 2nd defendant

did not contribute any money or exertion. Taking into consideration the name of the father as lucky one, the 2nd defendant purchased the above

said property in the name of Punnavana Nadar. In respect of plaint schedule item Nos. 9 & 12 the father of D2 viz. Punnavana Nadar had

executed a Will dated 19.10.1983 bequeathing those two properties in favour of D4, the sons of D2, who in turn had executed a settlement deed

in favour of the 2nd defendant. Now Item Nos. 9 & 12 stand in the name of the 2nd defendant. Item No. 13 of the suit property is used as

Kalam"" for the modern rice mill. Which stands in the name of the 4th defendant. 0.34.0 ares of land comprised in S. No. 322 absolutely belongs

to the 2nd defendant and the 5th defendant by means of settlement deed executed by Mayakrishna Nadar. The ancestral properties namely 0.19.0

Ares of land and 0.18.0 Ares of land in Yar Nathampatti Village comprised in S. No. 320/3-B-2 and 265/2-B-1 respectively. The properties

bearing S. No. 310/1 (0.05.5 ares) and S. No. 310/2 (0.19.0 ares) and S. No. 321 (0.81.0 Ares) sand in the name of the 1st defendant. Item

No. 15 mentioned in the plaint schedule is also a self-acquired property of Punnavana Nadar and it is used for the residence of the family

members. Likewise Item No. 16 which is also self-acquired property of Punnavana Nadar is now used as godown. Item No. 17 mentioned in the

plaint schedule is an ancestral property. There is no cause of action to file the suit. No demand for partition was made to these defendants. Hence,

the suit is liable to be dismissed.

The 5th defendant in his written statement would contend as follows:

The suit is not maintainable. The suit is bad for mis-joinder and non-joinder of necessary parties and also on account of mis-joinder of cause of

action. The suit is barred by time. The Court fee paid on the plaint is not correct. The suit is hit by the provisions of Benami Transaction

(Prohibition) Act, 1988. The 5th defendant adopted the written statement filed by D2 in all factual aspects. The plaintiffs are not entitled to any

share much less 2/6th share in the plaint schedule properties. The father of the plaintiffs, D2, D5 and D6 viz., Punnavana Nadar had not

contributed anything for the purchase of the plaint schedule properties. The 2nd defendant had purchased the properties from out of his own funds

as per the registered settlement deed dated 26.8.1974. The 2nd defendant had settled landed properties in favour of D5. The 5th defendant also

able to acquire plaint schedule Item No. 13 property by his own efforts, which was later transferred in the name of the 4th defendant. This

defendant was also assessed to taxes. The properties available for partition as ancestral as well as as the properties exclusively belonging to this

defendant''s father are scheduled to the plaint. The plaintiffs are assessed to taxes. From the income derived from the ancestral and self-acquired

properties of Punnavana Nadar, the plaintiffs have purchased the plaint schedule properties. The plaintiffs have no other source of income for

acquiring wealth in their hand. Hence, the suit is liable to be dismissed.

The defendants 2 to 4 in their additional written statement would contend that from the year 1964, D2 is living separately and D2 was working

as a teacher from the year 1964 in various places. He got married in the year 1964 and his father-in-law Somasundara Nadar was having rice mill

at Madurai. With the income he derived from the avocation of teacher profession, as well as from the rice mill business, D2 purchased the plaint

schedule Item No. 2 under a registered sale deed dated 29.01.1974 for a sum of Rs. 9,000/-, as a vacant site. Thereafter, he had constructed a

rice mill and the same was reopened on 26.11.1972. Thereafter, D2 resigned his teacher job and indulged in the rice mill business. The 2nd

defendant has also taken lease of Item No. 11 rice mill as per the lease agreement dated 20.10.1972. Thus from 20.10.1972 D2 was doing rice

business in two rice mills and had lucrative income from those two rice mills. From out of the income earned, the 2nd defendant had purchased the

rice mill in plaint schedule item No. 11 from his owner under a registered sale deed dated 11.12.1974. From out of the income derived from the

above said two rice mills, the 2nd defendant had also purchased Item No. 7 under a registered sale deed dated 25.6.1975 for a sum of Rs.

15,000/-. The 2nd defendant also purchased the plaint schedule Item No. 6 under a registered sale deed dated 21.4.1980 from one Lakshmi

Ammal from out of his independent income. Under two registered settlement deeds dated 15.7.1994 plaint schedule Item No. 12 and plaint

schedule Item No. 9 were purchased by the 2nd defendant from D4. The 2nd defendant has also named his rice mill in plaint schedule Item No.

11 as ""Vathiyar Rice Mill"" and also has obtained rice mill license in his name besides obtaining telephone connection. The 2nd defendant has

mordenized his rice mill in plaint schedule Item No. 11 by spending Rs. 30 lakhs. He has also provided a drying yard at plaint schedule Item No. 6

by spending Rs. 50 lakhs and has also improved the plaint schedule Item No. 7 by spending Rs. 25 lakhs. In plaint schedule item No. 7, the 2nd

defendant had also constructed a godown and also a paddy dyring yard by spending Rs. 3 lakhs. Of the above said properties, the 2nd defendant

is paying wealth tax as well as income tax from the year 1974. The plaint schedule Item Nos. 2, 6, 7, 9, 11 & 12 are all belonging to the 2nd

defendant. He is in possession and enjoyment of the above said properties for the past 28 years, without any interference from any quarter. The

total value of item No. 2, 6, 7, 9, 11 & 12 is Rs. 96 lakhs. Item No. 4 was purchased in the name of D3, who is the wife of D2, from out of the

cash provided by this defendant''s father-in-law. The 3rd defendant has also purchased the plaint schedule item No. 8 under a registered sale deed

dated 25.06.1975. The 3rd defendant also purchased plaint schedule Item No. 10 on 15.03.1979 under a registered sale deed for a sum of Rs.

45,000/-. The 3rd defendant also purchased plaint schedule item No. 5 on 21.4.1980. So, the plaint schedule item Nos. 4,5,8 & 10 belong to D3.

The plaint schedule item No. 4 property was purchased by D3 on 11.3.1974 and he has also installed a rice mill in the said property and the

licence was also obtained in the name of D3 for the said property. The said rice mill was constructed in the year 1980. Both the plaint schedule

Item Nos. 4 & 5 are situated side by side. In the plaint schedule Item No. 10 a portico was constructed by spending Rs. 9 lakhs. The 3rd

defendant was paying income tax and wealth tax. The value of the plaint schedule Item Nos. 4, 8, 10 & 5, which belonged to the 3rd defendant, is

Rs. 30 lakhs. In the above said D3''s properties no one was in joint possession. The plaint schedule Item No. 3 property was purchased by D4 on

11.3.1974 under a registered sale deed. Plaint schedule Item No. 13 belongs to the 4th defendant under a registered sale deed dated 23.12.1992.

So the plaint schedule Item Nos. 3 & 13 are the self-acquired properties of D4. The plaintiffs have no right or title in respect of the plaint schedule

Item Nos. 3 & 13. The plaint schedule Item No. 3 worth Rs. 1 lakh. Plaint schedule Item No. 13 also worth Rs. 1 lakh. The 4th defendant is also

paying income tax and wealth tax. The remaining properties are the plaint schedule Item Nos. 1, 14, 15, 16 and 17. In plaint schedule Item No. 14

the item No. 71 is S. No. 322 measuring 84 cents which belonged to Mayakrishnan Nadar, who had executed a settlement deed dated 26.8.1974

in favour of D2 & D5. The plaintiffs have no right or title in respect of the plaint schedule Item No. 17. So Item No. 17 in the plaint schedule Item

No. 14 i.e., 84 cents in S. No. 322 belongs to D2 & D5 under the settlement deed dated 26.08.1974. The said Punnavana Nadar died on

21.02.1984 leaving plaintiffs, D5 & D6 as his LRs. So the plaintiffs will be entitled to a share in Item Nos. 14 to 17 only. The plaint schedule Item

Nos. 1, 9 & 12 properties were purchased by D2 Benami in the name of his father Punnavana Nadar. The sale consideration for the above said

three sale deeds were paid only by D2. The 2nd defendant has helped a lot to his father Punnavana Nadar and his family. So as a gratuitous

gesture Punnavana Nadar had executed a Will dated 19.10.1983 in respect of Plaint schedule Item No. 9 & 12 in favour of D4, the son of D2.

Punnavana Nadar died on 21.2.1984. So after his death the said Will came into force. As per the above said Will, plaint schedule Item No. 9 &

12 belonged to D4. In respect of plaint schedule Item No. 12 the Government has taken land acquisition proceedings. The land compensation was

also awarded (a sum of Rs. 1,60,010/-) in the name of D4 on 24.12.1992 by the Government. The 4th defendant had executed two settlement

deeds dated 15.7.1994 in respect of plaint schedule Item Nos. 9 & 12 in favour of this father D2. So the plaint schedule Item No. 9 & 12 also

belonged to D2. The plaint schedule Item No. 1 was purchased in the name of Punnavana Nadar by D2. But no document was executed in

respect of plaint schedule Item No. 1 by the said Punnavana Nadar. In the sale deed taken in the name of D3 & D4, Punnavana Nadar has also

signed as a witness. So, these defendants have no objection for passing a preliminary decree for partition in respect of the plaint schedule Item

Nos. 1, 14 to 17. In respect of the other plaint schedule properties the suit is liable to be dismissed.

The 4th defendant in his additional written statement would contend that in the plaint the market value of the plaint schedule Item No. 14 is

shown as Rs. 5,25,000/-. The said valuation is not correct. The plaint schedule Item No. 17 in plaint schedule Item No. 14 i.e., 0.34.0 Ares in S.

No. 322 belonged to Mayakrishnan, who had executed a settlement deed dated 26.8.1974 in favour of D2 and D5. So in respect of the said

property, the plaintiffs cannot claim any right. The plaint schedule Item Nos. 15 & 16 were purchased by Punnavana Nadar from out of the joint

family nucleus and he had dug up a well and installed a motor pump set. Punnavana Nadar had mortgaged the plaint schedule item No. 14 with

Tharani Sugar Mills and raised mortgage loan of Rs. 33,200/-. This fact itself will go to show that there was no income derived by Punnavana

Nadar from the plaint schedule Item No. 14. In plaint schedule Item Nos. 15 & 16 an house was also constructed by Punnavana Nadar from out

of the income derived from his agricultural lands. The plaint schedule item No. 13 belongs to D5 as per the sale deed dated 11.12.1974 at the time

of purchase of the said sale deed D5 was studying as a student in Senthilkumar College, Virudhunagar. For the said sale deed, sale price was paid

by D2 from out of his own income. Later D5 executed a sale deed dated 23.12.1992 in respect of the said property in favour of D4. So in plaint

schedule Item No. 13 the plaintiffs cannot claim any share. This defendant is not entitled to any share in plaint schedule Item Nos. 2 to 13. In plaint

schedule item No. 12 and also in plaint schedule Item No. 1, D2 had constructed three floor building by spending Rs. 6 lakhs and has also named

the said building in the name of his son''s name as ""kumaravel Illam"". The Will dated 19.10.1983 in respect of the plaint schedule item Nos. 9 & 12

executed by Punnavana Nadar in favour of D4 came in to effect. As per the said Will, plaint schedule Item Nos. 9 & 12 belong to D4. In the plaint

schedule Item No. 1 D5 is also entitled to 1/6th share. Like that in plaint schedule Item Nos. 14 to 17 also D5 is entitled to 1/6th share. The 5th

defendant has paid Court feet for partition of his 1/6th share in plaint schedule Item Nos. 1, 14 to 17.

The 1st plaintiff in his reply statement would deny the averments in the written statement of the contesting defendants. There was a partition

entered into between Punnavana Nadar and his brother Mookaiya Nadar on 8.8.1950. The joint family of Punnavana Nadar was getting Rs.

60,000/- to Rs. 70,000/- per month towards agricultural income from the landed properties belonged to the joint family. The land bearing S. No.

322 in plaint schedule Item No. 14 belonged to Punnavana Nadar''s uncle''s son Mayakrishnan Nadar. Under an exchange arrangement

Punnavana Nadar''s sons D2 to D5 got S. No. 322 undeer a settlement deed dated 26.08.1974. But possession was not handed over to D2 to

D5. But the said property was enjoyed as a joint family property. No sufficient income was derived by D2 through his avocation as a teacher to

purchase the plaint schedule properties. There was no Will dated 19.10.1983 executed by Punnavana Nadar in respect of plaint schedule Item

Nos. 9 & 12 as alleged in the written statement. The alleged Will is a forged document.

On the above pleadings the learned trial Judge has framed 15 issues and two additional issues for trial. On the side of the plaintiffs P.W.1 to

P.W.4 were examined and Ex.A.1 to Ex.A.30 were marked. On the side of the defendant D.W.1 to D.W.6 were examined and Ex.B.1 to

Ex.B.201 were marked. Ex.X.1 was also marked by the Court as a third party document. After scanning the evidence meticulously the learned

trial Judge has come to a conclusion that only in respect of plaint schedule Item Nos. 1, 14 to 17 plaintiffs are entitled to 2/6th share (each 1/6th

share) and D5 was also granted a preliminary decree for partition of 1/6th share in plaint schedule Item Nos. 1, 14 to 17. In respect of the plaint

schedule Item Nos. 2 to 13 the suit was dismissed. Aggrieved by the findings of the learned trial Judge, the plaintiffs have preferred this appeal.

Now the points for determination in this appeal are ;

(1) Whether the plaintiffs are together entitled to 2/6th share in plaint schedule item Nos. 2 to 17 or they are the exclusive properties of D2 to D4?

(2) Whether the 2nd defendant is entitled to plaint schedule Item Nos. 9 & 12 as per the settlement deed executed by D4 under Ex.B.155 and

under Ex.B.156?

(3) Whether the 4th defendant got any right or title in respect of the plaint schedule Item Nos. 9 & 12 under the alleged Will dated 19.10.1983

said to have been executed by Punnavana Nadar?

(4) Whether the decree and Judgment in O.S. No. 160 of 1995 on the file of the Court of Subordinate Judge, Srivilliputtur, is liable to be set aside

for the reasons stated in the memorandum of appeal?

Point No. 1 Admitted facts are one Punnavana Nadar had four sons viz., 2nd defendant, 1st plaintiff, 2nd plaintiff and 5th defendant and one

daughter viz. 6th defendant. The two sons of Punnavana Nadar have filed this suit for partition of the plaint schedule properties viz., Item No. 1 to

17 claiming that all the plaint schedule properties are purchased from out of the income derived from the joint nucleus of the Hindu joint family

property of Punnavana Nadar, the plaintiffs, D2 & D5. The learned trial Judge after going through the documentary and oral evidence has held that

the plaint schedule Item Nos. 1, 14 to 17 alone are the Hindu joint family properties of Punnavana Nadar and his sons has decreed the suit

accordingly by passing a preliminary decree for partition of plaintiffs 2/6th share in the plaint schedule properties. Punnavana Nadar is no more as

seen from Ex.P.139. His wife Shanmgathai Ammal - D1 in the suit remained exparte, but she was examined as P.W.2 on the side of the plaintiffs.

With regard to the findings that the plaint schedule Item No. 1 and plaint schedule item Nos. 14 to 17 are the Hindu joint family properties, there is

no cross-appeal preferred by the contesting defendants. Hence, so far as the plaint schedule Item Nos. 1, 14 to 17 are concerned the decree and

Judgment of the learned trial Judge as to the finding that they are Hindu joint family properties of late Punnavana Nadar has become final. With

regard to plaint schedule item No. 2, the 2nd defendant, the contesting defendant before the trial Court as D.W.1 would depose that the plaint

schedule Item Nos. 2, 3, 5, 8 & 9 were purchased in the name of his father late Punnavana Nadar and that his father was an agriculturalist and

there was no other source of income for him. He would depose that he is the only educated member of the Hindu joint family of late Punnavana

Nadar and that he joint in service as a teacher after completing B.Sc, B.Ed., decree and that he got married in the year 1967 and his father-in-law

was A.S.R. Somasundara Nadar, who was in an affluent position and that his father-in-law was having a rice mill of his own and that from

February 1968 onwards he was looking after his father-in-law''s rice mill and indulged in rice mill business besides his regular avocation. It is the

case of the contesting 2nd defendant that from out of his own income he had purchased the plaint schedule Item No. 2 on 29.01.1971 under

Ex.B.8-sale deed from one Kondalsamy Naidu for a sum of Rs. 9,000/-.

11(a) The learned Counsel appearing for the appellants/plaintiffs would contend that even though the 2nd defendant would claim that he had paid

the sale consideration for Ex.B.8-sale deed, in fact the sale consideration was paid by his father-in-law Somasundara Nadar as admitted by him.

The defendant''s father-in-law Somasundara Nadar was examined as D.W.4, who would admit that D2 is his son-in-law and that he gave his

daughter in marriage to D2 in the year 1967 and that he was doing rice mill business and that he is the owner of two rice mills. According to him,

D2 had resigned his avocation in the year 1972 and indulged in rice mill business along with him after taking a rice mill on lease. In the cross-

examination he would admit that at the time of registration of Ex.B.8-sale deed he also accompanied D2 to the Sub-Registrar''s office and the sale

consideration of Rs. 9,000/- under Ex.B.8-sale deed was paid by him after receiving the said amount of Rs. 9,000/- from his son-in-law ie., the

2nd defendant. In categorical terms he would depose that the said sum of Rs. 9,000/- belongs to D2 only. Bassing his reliance on Ex.A.13 to

Ex.A.28 - bills for the sale of chillies and cotton, the learned Counsel for the appellant would contend that the Hindu joint family of late Punnavana

Nadar was getting sufficient income from the agricultural lands owned by the Hindu joint family and only from that amount, the sale consideration

for Ex.B.8 was paid by D2 and hence, plaint schedule Item No. 2 is to be construed as a joint family property of late Punnavana Nadar. But to my

surprise not even a single bill out of Ex.A.13 to Ex.A.28 relates to the year 1971 on which year Ex.B.8 - sale deed dated 29.1.1971 was taken by

the 2nd defendant in his name. In Ex.A.13 is torn. The English year is not found therein. But the corresponding Tamil year 1152 is seen in Ex.A.13,

which relates to the year 1977. Ex.A.14 is of the year 1976, Ex.A.15 is of the year 1977, Ex.A.16 is of the year 1977, Ex.A.17 is of the year

1983. Ex.A.18 is of the year 1977, Ex.A.19 is of the year 1977, Ex.A.20 is of the year 1977, Ex.A.21 is of the year 1978, Ex.A.22 is of the year

1977, Ex.A.23 is of the year 1977, Ex.A.24 is of the year 1977, Ex.A.25 is of the year 1977, Ex.A.26 is of the year 1978. Ex.A.27 is of the year

1978, Ex.A.28 is of the year 1983, Exs.A.15, 16, 19, 20, 22, 23, 24, 26 are Bills relating to the sale of Chillies. Exs.A.17, 18, 21, 25, 27 & 28

are relating to the sale of cotton. From the above bills which are relating to the year from 1976 to 1983 the total earning of the joint family comes

to below Rs. 30,000/- only. Even though it was contended on behalf of the plaintiffs that apart from the income under Ex.A.13 to Ex.A.23, the

Hindu joint family was deriving sufficient income from the sale of paddy and sugar, there is no material placed before the trial Court to show that

the Hindu joint family of late Punnavana Nadar was getting substantial income from the Hindu joint family properties of late Punnavana Nadar.

D.W.1 (D2) would further depose that in the vacant site of 22 1/2 cents purchased by him under Ex.B.8, he had installed a rice mill and Ex.B.9 is

the invitation card printed by him for the reopening of the rice mill. He has also produced Exs.B.10, 35, 36, & 37 to show that the said rice mill

was named by him as ""Vathiyar Rice Mill"" and that licence also stands in his name. The plaint schedule Item No. 2 is 16 1/2 cents in T.S. No.

2390 Old Annupandi Road, Gate Lock Road, Madurai Twon. According to D.W.6, Kumaravel-D4 and his parents had purchased the said

property in his name when he was minor through his mother and guardian V. Uma (D3) under Ex.B.131 (wrongly typed in the deposition of

D.W.6 as Ex.B.137). So far the plaintiffs have not taken any steps to set aside Ex.B.131-sale deed, which stands in the name of D4 on the ground

that the said property belongs to the Hindu joint family of late Punnavana Nadar and not to D4. The plaint schedule Item No. 4 is 16 1/2 cents in

T.S. No. 2390 Gate Lock Road, Madurai Town. The 2nd defendant in his evidence would depose that D3 is his wife and plaint schedule Item

No. 4 was purchased by his wife on 11.3.1974 under Ex.B.82-sale deed. It is not the claim of the plaintiff that the plaint schedule item No. 4 was

purchased from out of the joint family income of late Punnavana Nadar in the name of D3. The plaint schedule Item No. 5 is 20 cents out of 56

cents in T.S. No. 2399 of Annupandi Village, Madurai Town. According to D2, the plaint schedule Item No. 5 was purchased by his wife D3 on

21.4.1980 under Ex.B.100-sale deed for a sum of Rs. 8,000/-. It is not the case of the plaintiff that the property purchased under Ex.B.100 in the

name of D3 on 21.4.1980 from out of the joint family income derived from the joint family nucleus of the joint family property of late Punnavana

Nadar. According to D2, the plaint schedule Item No. 6, 11 1/2 cents out of 56 cents in T.S. No. 2399 of Annupandi, Madurai Town, was

purchased on 21.4.1980 by D2 under Ex.B.73 for a sum of Rs. 9,500/- and the plaint schedule Item No. 7 measuring 3 acres 9 cents in S. No.

82/2, 85/2 and 82/1 in Annupandi Village, Madurai Town, along with five horse power electric motor pump set and well was purchased for Rs.

15,000/- by D2 on 25.6.1975 under Ex.B.56-sale deed. The plaint schedule Item No. 8 measuring 3 acres 39 cents in S. Nos. 82/10, 82/9, 82/8,

82/3 & 82/4 in Annupandi Vilalge, Madurai Town, was purchased in the name of D3 on 25.10.1975 for a sum of Rs. 10,000/- under Ex.B.101.

There is no material placed before the trial Court to show that the sale consideration for Ex.B.56 and Ex.B.73 was paid from out of the income

derived from the nucleus of the Hindu joint family properties of late Punnavana Nadar.

11(b) The plaint schedule Item No. 10 is a house in T.S. No. 329/18 New No. 3193 to 96 Block No. 68 at Devarajan Street, Thriumgal Nagar,

Pangajam Colony, in Madurai Town. According to D.W.1 (D2), Item No. 10 was purchased by his wife on 15.03.1979 for Rs. 45,000/- under

Ex.B.114-sale deed. Corporation tax was levied on her under Ex.B.115, Ex.B.116 and Ex.B.117. Under Ex.B.118 to Ex.B.120 three separate

electricity meter connections were obtained to the meter installed in the said property. Exs.B.121 to 123 are the electricity consumption charges

for those meters. Under Ex.B.124 water charge for the said property has been paid by D2''s wife D3. There is also no material placed before the

trial Court to show that the sale consideration for Ex.B.114-sale deed was paid from out of the joint nucleus of the Hindu joint family of late

Punnavana Nadar.

11(c) Item No. 11 to the plaint schedule was purchased under Ex.B.38-sale deed dated 11.12.1974 in favour of P. Velayutham (D2). Under

Ex.B.191 water connection was also given in the name of D2.

11(d) Item No. 13 to the plaint schedule is a building bearing Door No. 41 in TNS.467 of Madurai town. D.W.5 (D5 - Ramarajan in his evidence

would admit that Item No. 13 to the plaint schedule was purchased in his name by his brother D2 and that subsequently he had sold the plaint

schedule Item No. 13 in favour of Kumaravel (D4) under sale deed dated 23.12.1992. D.W.1 (D2) would depose that Item No. 13 was

purchased by him in the name of his brother Ramarajan (D5) under Ex.B.40-sale deed. Under Ex.B.153, D4 had paid land tax for plaint schedule

Item Nos. 12 & 13. D5 in turn had executed Ex.B.199-sale deed dated 23.12.1992 in favour of D4 in respect of plaint schedule Item No. 13.

There is absolutely no material placed before the trial Court to show that Item No. 13 was purchased from out of the income derived from the joint

family properties of late Punnavana Nadar.

11(e) As far as plaint schedule item Nos. 14 to 17 are concerned the defendants have no dispute as to the fact that they belong to the Hindu joint

family of late Punnavana Nadar along with the plaint schedule Item No. 1.

11(f) The learned Counsel appearing for the respondents relying on Appasaheb Peerappa Chandgade Vs. Devendra Peerappa Chandgade and

Others, would contend that the burden of proof is heavily on the plaintiffs who have approached the Court for partition of the plaint schedule

properties claiming that the properties are joint family properties. The exact observation in the above said ratio of the Honourable Apex Court is as

follows:

So far the legal proposition is concerned, there is no gainsaying that whenever a suit for partition and determination of share and possession thereof

is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the

burden, it shifts on the defendants to show that the proeprty claimed by them was not purchased out of the joint family nucleus and it was

purchased independent of them. This settled proposition emerges from various decisions of this Court right from 1954 onwards.

In the case of Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, , there Lordships held that proof of the existence of a joint

family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that

any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature

and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging

self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Therefore, so far as the

proposition of law is concerned, the initial burden is on the person who claims that is was joint family property but after initial discharge of the

burden, it shifts to the property who claims that the property has been purchased by him through his own source and not from the join family

nucleus. Same proposition has been followed in the case of Mst. Rukhmabai Vs. Lala Laxminarayan and Others, wherein it was observed as

follows:

There is a presumption in Hindu Law that family is joint. There can be a division in status among the members of a joint Hindu family by definement

of shares which is technically called ""division of status"". Or an actual division among them by allotment of specific property to each one of them

which is described as ""division by metes and bounds"". A member need not receive any share in the joint estate but may renounce his interest

therein; his renunciation merely extinguishes his interest in the estate but does not affect that status of the remaining members vis-a-vis the family

property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be

expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a

party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior

purpose. But there is no presumption that any property, whether moveable or immovable, held by a member of a joint Hindu family, is joint family

property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that

there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the

family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint

family property.

Similarly, in the case of Achuthan Nair Vs. Chinnamu Amma and Others, , their Lordships held as follows:

Under Hindu Law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family

property to establish it. When it proved or admitted that a family possessed sufficient nucleus with the adi of which the member might have made

the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the

property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law.

Similarly, in the case of Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe and Others, , their Lordships have held that the character of any joint

family proeprty does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family

character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any

member of the joint family to covert any joint family property into his personal property.

In the case of Surendra Kumar Vs. Phoolchand (dead) through and another, their Lordships held as follows:

It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging that

property to be joint has to establish that the family was possessed of some property with the income of which the property cold have been

acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which

possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have

been acquired, the property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired

without the aid of the joint family.

Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu family but on the evidence if it is

established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is

discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the

property was acquired without the aid of the joint family property by cogent and necessary evidence.

in the case on hand, the plaintiffs have miserably failed to establish that the plaint schedule properties except Item Nos. 1 & 14 to 17 have been

purchased by the defendants only from out of the joint family nucleus. As I have already referred to that Ex.A.13 to Ex.A.28 receipts for the sale

by cotton and chilies for the period from 1976 to 1983 to an amount about Rs. 30,000/- is not enough to derive us to come to a conclusion that

the other properties which stood in the name of the defendants also were purchased from out of the income derived from the joint family

properties. On the other hand, it is in evidence that D2 had separated from the joint family even in the year 1964 and was working as a teacher in

various places till his marriage and after his marriage with the help of his father-in-law who was a rice mill owner established another rice mill and

derived income from two rice mills and from out of the income derived, D2 had purchased the other properties except Item Nos. 1 & 14 to 17 to

the plaint schedule.

11(g) The relevant observation in the dictum in AIR 2003 Kar 245 (V.K. Thimmaiah and Ors. v. Smt. V.K. Parvathi and Ors.) relied on by the

learned Counsel for the respondents is that:

Any properties acquired by the kartha of the joint family is presumed to be the joint family properties. If any one of the co-parcener asserts and

claims that the property is his self acquired property the burden is on him to prove that the said property is his self acquired property.

11(h) Relying on Harihar Sethi and Another Vs. Ladukishore Sethi and Others, , the learned Counsel for the respondents would contend that a

Hindu, even if be joint, may possess separate property and such property belongs exclusively to him. The exact observation on which the reliance

was placed by the learned Senior counsel for the respondents is as follows:

However, it is no more res integra that a senior member of the family may give up his right and a junior member of the family can act as Karta with

consent of all the other members. In the present case, the defendants who putforth a claim that the plaintiff acted as Karta of the family, though he

is not the eldest member, have totally failed to prove the said fact by adducing cogent evidence. In the absence of any evidence, it is not possible to

accept the contention raised by the appellants that the plaintiff, though he was not the senior member of the family, acted as the Karta. The decision

cited by the appellants do not apply to the facts of the present case. Law as enumerated under Article 222 of Mulla Hindu Law is well settled that

a Hindu, even if be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary not even

his male issue, acquires any interest in it by birth, and on his death intestate, it passes by succession to his heirs, and not by survivorship to the

surviving coparceners.

Also there can be no presumption that the family, because it is joint, possesses joint properties. In a suit for partition a party who claims that a

particular item of property is joint family property, the burden of proving that it is so, rests on the party asserting it.

For the same proposition of law reliance was placed on the ratio in Subramania Reddi (Dead) Vs. Venkatasubba Reddi (Dead) and Others, ,

wherein it has been held by the Honourable Apex Court as follows:

The question of blending of properties was not considered by the High Court on the basis that there was no such plea. The learned Counsel for the

appellant relied upon B. Shah Vs. Presiding Officer, Labour Court, Coimbatore and Others, to submit that no specific plea of blending is required.

We will assume for the purpose of this case that this legal position is correct. Even so, the result will not be different because there is no evidence

of blending of separate property in the joint family property. Again the whole matter rests on appreciation of evidence. When there are concurrent

findings on the question of fact we do not think we can reappreciate the same. Indeed the appellant wanted that even properties inheritted by the

first defendant under a Will should also be included in the joint family properties and should be treated as having got blended with other properties.

We do not think such a course in permissible at all and there was no reason for the first defendant to bring in the properties inherited by him from

his relations on his maternal side to blend with the property of the joint family.

11(i) The learned senior counsel appearing for the respondents also relied on P.M. Mani Vs. P.S. Mohankumar and Others, for the same point, on

the following observations:

When a person claiming that a particular property was ancestral or it belonged to the joint family, the burden of proving the same lies on him. He

must show initially that there was sufficient nucleus. A presumption that a property in the hands of an individual coparcener was joint family

property can be drawn only if it is shown that there was a nucleus of the joint family property, from which it might fairly be said to have grown. If

such nucleus is proved by sufficient evidence or admitted by the opposite party, only then, the onus of proving separate acquisition on the

coparcener alleging the same would arise. In the instant case, a careful analysis of the evidence, both oral and documentary would reveal that the

plaintiffs have not discharged the burden of proof, showing that the suit properties were ancestral properties.

The other ratio on which reliance was placed by the learned senior counsel for the respondents is 2002 (3) CTC 141 (M. Saminatha Vellalar and

three Ors. v. Govindaraju and seven Ors.), wherein a Devision Bench of this Court has held as follows:

In G. Narayana Raju Vs. G. Chamaraju and Others, , the Supreme Court has reiterated the principle that it is well settled that there is no

presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member

is the manager of the joint family, 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 property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free

and separate.

...

In Chattanatha Karayalar Vs. Ramachandra Iyer and Another, , the Supreme Court has held that under the Hindu Law, there is no presumption

that a business standing in the name of any member is a joint family one even when that member is the manager of the family, and it makes no

difference in this respect that the manager is the father of the coparceners.

...

In Ramayya v. Kolanda AIR 1939 Mad. 911, a Division Bench of this Court has held that in this case there is every reason for thinking that the

acquisitions by the brothers were as much the result of their own industry and thrift as they were the natural product of the land itself, that the

acquisitions claimed represent savings extending over a fairly long period, that years after the allotment and years after the acquisition it is scarcely

just or equitable that the acquirer should be forced to share the product of his thrift and industry with, it may be, an indolent or ease-loving

coparcener, and that there is no principle of Hindu law which tends to the perpetuation of such gross injustice.

...

In Rathinam v. Thangasami Pillai 1967 (1) MLJ 360, a Division Bench of this Court held that mere proof of the existence of the joint family owning

some joint family property does not give rise to any presumptions and that it must be established that the family possessed some joint property

which from its very nature and relative value may have formed the nucleus sufficient and adequate in character so as to impress the acquisitions

with the character of the joint family property.

11(j) The relevant observation on which the reliance was placed by the learned senior counsel for the respondents in Mudi Gowda Gowdappa

Sankh Vs. Ram Chandra Ravagowda Sankh, is as follows:

There is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular

property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a

nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family

property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have

been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-

acquisition to affirmatively make out that the property was acquired without any aid from the family estate.

The same principle was reiterated in K. Sengodan Vs. K. Dharmalingam and Others, , as follows:

The appellant''s attempt has been to shift the burden of proving that the properties involved are the self-acquisitions of the defence. It can,

however, not be denied that the initial burden is only on the one who contends that the property belongs to an undivided Hindu family, and only

where the initial burden is discharged by the one who is setting up such a claim, then the other side who contends to the contrary be called upon to

establish his case. The law on the subject has never been in doubt. The appellant has failed to prove the existence of such ancestral nucleus which

by itself, is not sufficient but availability of the ancestral nucleus or its adequacy of the same to fund the later acquisitions, are also essential

requisites for an answer in favour of his contention.

The learned senior counsel appearing for the respondents relying on Kenchegowda (Since Deceased) by Legal representatives Vs. Siddegowda

alias Motegowda, would contend that a suit for partial partition when all the joint family properties not made the subject-mate of the suit nor the

co-sharers impleaded, is not maintainable. But as far as the case on hand is concerned the defendants have not produced any material to show that

some of the joint family properties were left to be included for partition. The learned senior counsel relying on Ex.X.1 would contend that in the

plaint schedule Item No. 2 there is a rice mill put up by the 2nd defendant, but the same was not included for partition, hence, the suit itself is bad

for partial partition. But in Ex.X.1 it is seen that from out of the property viz, ''Vathiya Rice Mill'' the 2nd defendant shall take 60% and D5 shall

take 25% and first appellate-Ganesan shall take 15% of the total income. It is not the case of the parties that there was denial of the agreed shares

in the profits of the rice mill by D2-Velayutham since there is already arrangement for sharing the profits from the rice mill in plaint schedule item

No. 2 viz., ''Vathiyar Rice Mill"". Point No. 1 is answered accordingly.

Point Nos. 2 & 3:- With regard to Item No. 9 and 12 of the plaint schedule it is admitted case of D.W.1 that they belonged to his father

Punnavana Nadar, who had executed a Will dated 19.10.1983 in favour of his son Kumaravel (D4) and that in pursuance of the said Will patta

has been transferred in favour of his son D4 under Ex.B.141 and a portion of the property in Item No. 9 was acquired by the Government for the

formation of Ring Road and the Tahsildar had also issued notice under Ex.B.142 to his son to receive the compensation and Ex.B.143 is another

notice calling upon him to attend the enquiry and Ex.B.144 is the enquiry proceedings of the Tahsildar and Ex.B.145 is the award passed in the

Land acquisition proceedings and the compensation was fixed as Rs. 180/- per cent and that he had filed LAOP. No. 74/1993 for enhancement of

the compensation in which a judgment was passed under Ex.B.146. But a perusal of Ex.B.146 will go to show that the claimant viz., Kumaravel

(D4) has not claimed that the acquired land belonged to him under the alleged Will executed by Punnavana Nadar. It is the case of the respondents

- defendants that the Will dated 19.10.1983 was produced before the Tahsildar, Madurai City, for obtaining patta in the name of D4. But the said

Will was not get back from the said Tahsildar. D.W.1 (D2) would admit in his evidence that the said Will was an unregistered one. The said

Tahsildar was examined as D.W.2 - Narayanan. He would admit that he had issued Ex.B.141 - patta in favour of D4. But a perusal of Ex.B.141 -

patta will go to show that patta for Item No. 9 alone was granted for item No. 12, which is in TS. No. 552/1. Further, D.W.1 (D2) would also

admit in his evidence that against the order passed in LAOP. No. 74 of 1993 under Ex.B.146 there is an appeal pending before this Court. For

Item No. 12 D2 has also produced Ex.B.151 for change of mutation in favour of D4 and Ex.B.152 is the tax receipt for Item No. 12 and urban

land tax is also Ex.B.153. He would further contend that his son D4 had executed Ex.B.155 and Ex.B.156, settlement documents in respect of

Item Nos. 9 and 12 respectively executed by D4 in favour of him. Ex.B.158 and Ex.B.159 are the tax receipts. In Ex.B.157 is the order of the

Tahsildar for effecting mutation in respect of Item Nos. 9 and 12 in favour of D2. But it is the definite case of D2 that the plaint schedule Item Nos.

9 and 12 originally belonged to Punnavana Nadar and that he had bequeathed the plaint schedule item Nos. 9 & 12 under the sale deed dated

19.10.1983 in favour of D4. But the said Will was not produced before the trial Court. An attempt was made by the defendants to mark a xerox

copy of the alleged Will through D.W.2-Narayanan. But the said xerox copy of the Will was not exhibited before the trial Court by the learned trial

Judge since it was objected to by the other side. But a reading of the cross-examination of D.W.1 throws no details on the alleged Will. Further,

D.W.2 is not competent to issue any xerox copy for a Will. D.W.2 has also not stated in his evidence who are all the attestors to the alleged Will.

D.W.6-Kumaravel (D4), who is the son of D2, has deposed that his grand-father Punnavana Nadar had executed a Will in respect of Item Nos. 9

and 12 in favour of him. But he has also not stated who are all the attestors to the alleged Will. D.W.5 -P. Ramaraj (D5) has not deposed in the

chief-examination that he has attested the alleged Will executed by Punnavana Nadar. But he would state in the chief-examination that he knows

about the execution of the alleged Will in respect of the plaint schedule Item Nos. 9 & 12 executed by his father Punnavana Nadar on 19.10.1983.

Only in the cross-examination of D2 to D4 he would depose that his father Punnavana Nadar had executed the Will on 19.10.1983 and the scribe

of the Will is one Natarajan Pillai. But the said Natarajan Pillai was not examined as a witness on the side of the defendants. Except the ipsi-dixit of

D.W.5 there is absolutely no evidence to prove that a Will was executed by Punnavana Nadar in favour of D4. u/s 68 of the Indian Evidence Act,

the Will is to be proved atleast by examining one of the attestors to the Will. Here absolutely there is no evidence to show who are all the attestors

to the said Will. It is in evidence that the said Will was destroyed by the revenue officials as seen from Ex.B.201. Even in Ex.B.201 there is no

specific averment that the alleged Will was destroyed. Only in Ex.B.200 there is a reference in the enclosure for the return of the document and

there is a mention about the Will. So it cannot be said that plaint schedule item Nos. 9 & 12 are the exclusive properties of D4 or D2 sine the

alleged Will in favour of D4 was not proved as required u/s 68 of the Indian Evidence Act, it is to be presumed that Item Nos. 9 & 12 are the joint

family properties of late Punnavana Nadar. Hence, I hold on Point Nos. 2 & 3 that the plaintiffs are entitled to 2/6th share in the plaint schedule

Item Nos. 9 & 12 also along with Item Nos. 1 & 14 to 17.

Point No. 4:- In view of my findings and discussions in the earlier paragraphs I hold on Point No. 4 that the appeal is to be allowed and the

decree and Judgment of the learned trial Judge in O.S. No. 160 of 1995 is to be modified.

In fine, the appeal is allowed and the decree and Judgment of the learned trial Judge in O.S. No. 160 of 1995 on the file of the Court of

Subordinate Judge, Srivilliputtur, is modified as follows:- The plaintiffs are entitled to 2/6th share in plaint schedule item Nos. 1, 9, 12 & 14 to 17

and D5 is also entitled to 1/6th share in the above said properties. Preliminary Decree is passed to that effect. In respect of other items in the plaint

schedule properties, the appeal is dismissed, thereby confirming the findings of the learned trial judge. No costs. Connected Petitions are closed.