Pattusami Padayachi vs Mullaiammal and Others

T. Ramaprasada Rao, J.—The plaintiff'' sic O.S. No. 86 of 1967 on the file of the Subordinate Judge of Chidambaram, is the appellant.

Muthusami Padayachi is the common ancestor. He married twice and his senior wife is called Pattathammal and his second wife was known as

Pattayee. Muthusami Padayachi originally belonged to Silambur in Trichi district. He had two sons through his first wife, who are the husband of

the first defendant in the action and the 4th defendant herein. The plaintiff is the son through the junior wife. The senior wife died in or about 1940

and the junior wife in 1943. Though Muthusami Padayachi left a daughter through his first wife, she died leaving a minor daughter who also died in

1949. Muthusami Padayachi, therefore, left behind him surviving the first defendant''s husband as the eldest son, the 4th defendant and the plaintiff

as his second and third sons. Muthusatri Padayachi originally belonged to Silambur and it is Common ground that he divided his ancestral

properties with his brothers and he secured considerable properties in the village of Silambur. After he married his first wife, who was a native of

Tholuvur he shifted to the said village. The plaintiff''s case is that though Muthusami Padayachi shifted to Tholuvur, he had considerable income

from the joint family properties and with the assistance of such properties, he purchased various properties in the name of his senior wife at,

Tholuvur and those properties, though standing in the name of the senior or the first wife Pattathammal, should for all purposes be deemed to be

the family properties and Pattathammal was only a benamidar. On the foot of the said allegations and also on the ground that Muthusami Padayachi

died without effecting a partition, the plaintiff filed the action for declaration that he is entitled to one-third share in all the properties mentioned in

the plaint Schedules A to E and for a partition and separate possession and allotment of the shares of himself, the first defendant''s branch and the

4th defendant''s branch. According to the plaintiff, such properties are partible properties amongst the three branches referred to above. The

plaintiff, of course, gave several details, regarding the manner and the method of purchase of various items of properties in the schedules by

Muthusami Padayachi and claimed his share therein.

Defendants 1 to 3 filed a common written statement. According to them the ancestral properties acquired by Muthusami Padayachi in a partition

between himself and his brothers were rain-fed lands of an extent of 18 acres and incapable of yielding any income. They would aver that the

income was not even enough to maintain the family and consequently the suggestion of the plaintiff that Muthusami Padayachi purchased a further

extent of 21 acres and built up a house in Tholuvur from the income of the Silambur lands is only a myth. They, therefore, deny that such of those

properties which stood in the name of Pattathammal are not to be brought to the hotch-pot for division and that the plaintiff wrongly included those

properties as partible properties. The defendants had claimed that Muthusami Padayachi''s first wife, Pattathammal, belonged to a very rich and

affluent family and the properties which stood in her name were all settled on her, or provided to her by her father and her ancestors and that

Muthusami never contributed any money towards the Purchase of the said properties. We are not setting out herein the various iterrs of properties

contained in the suit schedules which are referred to by the plaintiff as family properties, but by defendants as Pattayee Ammal''s properties and

which, according to them, are not partible amongst the sharers of the joint family of which Muthusami Padayachi was the ancestor. This is so

because, no particular argument was addressed before us on any identifiable item of the schedules as having been purchased by Muthusami

Padayachi at a particular point of time from and out of the income of the joint family or that he provided the necessary funds for their purchase, but

got them in the name of the senior wife. The main defence is that prior to his death in the year 1962, Muthusami orally effected a partition of the

joint family properties amongst his three sons and he has made a fair division of the properties in the family. It is claimed that the lands in Silambur

village, which was the ancestral village, were allotted to the share of the 4th defendant who was also fostered by one of the brothers of Muthusami

Padayachi, one Sepperumal Padayachi and the other properties in Tholuvur were allotted to the shares of Krishnasami, |he husband of the first

defendant and the plaintiff. Muthusami Padayachi also made it clear that the properties which stood in the name of this first wife Pattayee in the

village of Tholuvur. were to be taken by her own sons, viz., 4th defendant and the 1st defendant''s husband, the plaintiff being not entitled to a

share therein. Furthering such a defence, defendants 1 to 3 would say that in pursuance of the said arrangement the sharers who were put in

possession of their respective properties so allotted in such an oral partition effected by the common ancestor and in order to avoid any

inconvenience in the matter of raising funds on their own respective shares obtained in such an oral partition, a record of such a prior arrangement

was made under Exhibit B-1, dated 30th September, 1964 which is characterised as ""Attavanai"". According to the defendants, including the 4th

defendant, Exhibit B-1 is a record of a past transaction and that in it the properties taken over by the plaintiff on the one hand, the 1st defendant''s

husband and the 4th defendant on the other, were all detailed and delineated and that this was only in evidence and substantiation of such evidence

of possession of each of the sharers ever since the oral partition effected by the common ancestor. Defendants would add that ever since 1962,

after the death of Muthusami Padayachi each of the branches were in enjoyment of their respective shares so allotted in the oral petition and so

delineated in Exhibit B-1 and were paying the kist separately and enjoying the properties as absolute owners thereof besides alienating them for

their necessity, benefit and convenience. The defendants 1, 2 and 3 referred to a settlement effected by Krishnasami the eldest son of. his wife and

children and also to the fact that the said Krishnasami, out of his own funds, acquired some more properties which the plaintiff has claimed as

particle properties in the schedules and that some of such items have been alienated by the 1st defendant and that the alienees are in possession of

such properties. They refuted the allegation that such properties purchased by Krishnasami after the oral partition were so purchased be name in

the name pf his wife and that those items are also to be brought into the hotch-pot for division. The defendants 1 to 3 refer to the various

alienations made by the plaintiff and other sharers which were alienations fully supported by consideration and maintained that such properties so

alienated by each of the branches are in the possession of the alienees without any interruption, claim or demand by the sharers. Defendants also

would claim that at or about the time when the oral partition was effected by the common ancestor Muthiah Padayachi, he divided the movables

also as between his sons which included the out standings due to the family as well. They refer to the allotment of some of the out standings in

favour of the plaintiff who is said to have collected and appropriated the same for himself. They would aver that the other outstandings which were

taken over by the other sharers were recovered by them and in some cases by instituting suits for realisation thereof. In those circumstances, the

defendants would contend that the plaintiff is estopped by his admission and conduct from claiming any share in either the immovable or movable

properties which originally belonged to Muthusami Padayachi and would finally rest their claim on Exhibit B-1 and deny that the plaintiff is entitled

to a second partition of already partitioned joint family properties.

The 4th defendant in his independent written statement would repeat the allegations made by defendants 1 to 3. He would in particular refer to

the oral partition made by Muthusami as also to the ""Attavanai"". Exhibit B-1, and would say that each of the sons of Muthusami Padayachi took

over towards their respective shares the properties allotted by their father and that a division of the movables also had been effected and that

therefore the plaintiff''s claim for a partition and separate possession of the alleged joint family properties as claimed by him has to be denied and

the suit dismissed.

The other defendants in the action are alienees who claim that they are bona fide purchasers for value and refute the claim of the plaintiff that the

properties so purchased by them are to be deemed as joint family properties. The lower Court has summarised as far as possible the defence of

each of the alienees and it is unnecessary for us to recapitulate and reiterate them again. The plaintiff, at one stage, has given up defendants 16 to

18.

The following issues were framed on the above necessary pleadings:

(1) Whether the partition list set up by defendants 1 to 4 and'' other contesting defendants is true and valid?

(2) Whether the other items in the plaint A schedule excepting items 1 to 5, 9 and 21 belonged to Muthusami Padayachi?

(3) Whether item 23 of plaint A schedule was purchased in the name of the 5th defendant by the 4th defendant benami and for the benefit of the

4th defendant and his brothers with their family funds?

(4) Whether the other items of plaint B schedule excepting items 1 to 22 are the family properties of the plaintiff and his two brothers?

(5) Whether the items said to have been purchased in the name of Pattathammal the first wife of Muthusami are benami and purchased by

Muthusami with his own funds and for his own benefit?

(6) Whether the G schedule properties belonged to Sampooranathammal, Muthusatni''s sister and purchased in Muthusami''s name benami for her

benefit?

(7) Whether the, partition set up even during the life time of. Muthusami himself in 1962 is true?

(8) What are the out standings and movables available for partition belonging to the family of plaintiff and his two brothers?

(9) Whether the suit for partition is not maintainable?

(10) Whether. the plaintiff is entitled to any and what accounting from the 1st defendant and from out of the assets of Krishnasami?

(11) Whether defendants 12 and 16 to 18 are necessary parties to the suit?

(12) Whether the various alienations by the contesting defendants are true, valid and binding oft the plaintiff?

(13) Whether the settlement by Krishnasami in favour of defendants 1 to 3 is true, valid and binding on the plaintiff?

(14) To what relief is the plaintiff in titled?

The lower Court upheld the contentions of the defendants that there was an oral partition which was made by Muthuswami Padayachi when he

was alive and that the said partition was not unequal and that the plaintiff along with the 1st defendant''s husband and the 4th defendant were in

independent possession and management of such properties in accordance with the said oral partition so effected by the father and that the plains

tiff alienated several of such properties pursuant to the ""Attavanai"", Exhibit B-1 which he characterised as a record of a past transaction and in

those circumstances totally accepted the defendants contention and dismissed the suit.

The plaintiff has come up in appeal. Mr Gopalaswami Iyengar, learned Counsel for the appellant, characterises Exhibit B 1 as an instrument on

which no reliance can be placed as it is inadmissible m evidence being a document which is compul-sorily registerable and which on its own force

created title in the executants of the said documents. Even otherwise, he would say that the oral partition referred to by defendants even if true, is

an unequal one and the properties which stood in the name of Pattathammal and which were purchased in the village of Tholuvur are to be

considered and deemed as properties held by her benami for the benefit of the family and in any event should m the circumstances be treated as

annexures to family properties, they having been ourchased from the surplus income of the family properties. He referred to several improbabilities

which surround the alleged oral partition.

Firstly, he pointed out that in a civil litigation the 4th defendant who was brought on record as the legal representative of Muthusarhi Padayachi

would say in Exhibit A-10 that the family was a Secondly, his contention is that Exhibit B-1 does not contain the signature of the plaintiff and the

writing showing that it is his signature is a forgery; He would also refer to the language of Exhibit B-1 itself which refers to the fact that each, of the

allottees in the said document should take the properties and enjoy them hereafter as, at solute owners thereof. The exact language referred to and

relied upon by the learned Counsel is contained in the various schedules to Exhibit B-1. As an illustration we would say: etc."" Based on this

expression in Exhibit B-1, it is contended that the conferment of title in immovable property springs from another recital in Exhibit B-1 and that

therefore, it is doubtful whether there was an earlier oral partition at all. Thirdly, it is said that the very recitals extracted above give the impression

that the document, Exhibit B-1, is inadmissible, in evidence as it touches on rights in immovable property and is compulsorily registerable. As such

no oral evidence could be let in u/s 91 of the Evidence Act to project the enforceability or implementability of Exhibit B-1. Fourthly, it is said that

the so called partition effected by the father is an unequal one and that there is no evidence that the movables which were large, according to the

plaintiff, were ever divided at all as between the sons of Muthusami Padayachi,

Countering the said contentions, Mr. Ratnam, learned Counsel for the respondents would say that excepting a bare suggestion and a serious

suggestion indeed, that Exhibit B-1, does not contain his signature and that the writing in Exhibit B-1 as if it is his signature is a forgery has not been

processed through in a manner known to law by examining any expert, or by taking such efforts to establish that it is not. his signature. Secondly he

would say that there is no proof of surplus income from the joint family, properties and as the presumption in law is that the properties standing in

the name of a family member of a joint family should be presumed to be her own properties unless proved to the contrary and in the absence of

such proof in the instant case the properties which stood in the name of Pattathammal in the village of Tholuvur should be deemed to be her own

properties in which the plaintiff as a member of the coparcenary cannot claim a right by birth. Thirdly, he would say that the division of the

properties is equal and there is every reason for the allotment of the properties in Silambur to the 4th defendant as he was by then being fostered

and brought up by his uncle Sepperumal who was none else than the brother of Muthuswami Padayachi and that the properties which stood in the

name of Pattathammal were allotted to her own sons, viz., 1st defendant''s husband and the 4th defendant.

After referring to the above instance which probabilise this scheme of division of the properties among the heirs on Muthusami, he would say

that the subsequent conduct of each of the heirs of Muthusawmi positively proves that there was an oral partition and that they were in separate

and independent possession of such properties taken over by them pursuant to an oral partition and the plaintiff cannot now complain after having

acted upon such an oral partition that there was no partition at all

On the alegal Objections against the admissibility of Exhibit B-1, he would suggest that the document of this kind in question ought to be

considered as a whole and not in a truncated fashion and certain recitals therein should not be torn out of the context so as to destroy the real

effect and meaning of the entirety of the document. He referred to certain circumstances to establish that the movables ought to have been divided

in the oral partition referred to and finally would say that Exhibit B-1 is the sheet-anchor on which the parties rest their case and they not only relied

upon it but acted upon it by alienating the same for the benefit of their respective families whenever they thought it fit convenient and beneficial. He

would'' therefore sustain the judgment of the Court below.

Weighing the contention of both the counsel we are satisfied that there was an oral partition effected by Muthusami Padayachi when he was

alive and that ExhibitB-1 is only a record of a past transaction and in the oral partition there was not only division of immovable properties

belonging to the family but also the movables and that the properties which stood in the name of Pattathammal which were mainly in the village of

Tholuvur were her own properties, in which the plaintiff did not acquire by any provision of law, any right by birth so as to bring these properties

also to the hotch-pot for being partitioned amongst the heirs of Muthusami Padayachi. Our reasons are as follows:

We shall now take up first the contention whether Exhibit B-1 contains the signature of the plaintiff and whether it a true document and whether

it requires compulsory registration. It is a cardinal principle of interpretation that the no men clature or phraseology used by the parties ought not to

be the sole guide to under. stand the document. The entirety of the recitals in the document have to be take into consideration as a whole without

taking one or the other of the sentence; therein torn out of its context and thus find the intention of the parties by a wholesome consideration of the

totality of the document. The intention of the parties could be gathered not by harping upon and by making an accent on one or the other of the

recitals therein but by a fair and equitable reading of the entire document as a whole. We are unable to agree with Mr. Gopalaswami Iyengar that

the unique recital in Exhibit B-1 in the schedules thereto which says that:

should be literally understood as vesting clause whereunder proprietary rights were conferred on each of those persons mentioned therein. These

are purely descriptive recitals. When we look into the text of Exhibit B-1, it is clear that the parties contemplated to make record of a past

transaction. As a matter of fact, the first defendant as D.W. 1 referred to certain inconveniences felt by the heirs of Muthusami Padayachi in the

matter of borrowing monies, on the properties taken over by them. This was given as the main reason for causing the ""Attavanai"" to be brought out

so that, on more clear and explicit terms the parties could emPhasisc the circumstances under which they came into possession of the family

properties and also establish their independent right over it and contemporaneously prove that they are respectively, the competent persons to

alienate or borrow monies by dealing with such properties in their absolute possession and enjoyment. This reason given by D.W. 1 is rather

convincing. In Exhibit B-1, a reference is made to the properties of Pattayee Ammal and how those properties were allotted to her own sons and

how the rest of the family properties were divided by their father as between the other members, etc.

Mr. Gopalaswami Iyengar again refers to another expression used in Exhibit B-1 :

as a present intention of the executant to confer title in immovable properties. Again, this sentence cannot be read de hors the other surrounding

circumstances of the case for which purpose it is necessary for us to look into the conduct of the parties, the oral evidence let in and how the

plaintiff himself dealt with Exhibit B-1.

The plaintiff''s case is that the document is a forgery. One who accuses the other parties to the litigation of such a serious misdemeanour cannot

be complacent without furthering his contention and proving a serious allegation like forgery. It is surprising in this case that the plaintiff has not

moved his little finger, or taken any steps known to law to establish that Exhibit B-1 is a forgery.

As against this, we have the evidence of D.Ws. 1 to 3. D.W. 1 is not inimical with the plaintiff. He is the writer of the document. He speaks to

the fact that Exhibit B-1 was thought of in order to enable the plaintiff, the 1st defendant''s husband and the 4th defendant to deal with the said

properties by themselves and as owners there of; in order to make such a past title which vested in them in an oral partition, a formal ""Attavanai

was thought of so as to delineate the properties secured by each of them in the quondam oral partition. D.Ws. 2 and 3 are attestors. Nothing is

suggested by the plaintiff as against them. It is, therefore, very difficult for us to, discard Exhibit B-1 as a document which is suspicious and as an

instrument which does not contain the signature of the plaintiff as sworn to by him We accept the evidence of D.Ws. 1, 2 and 3 and would concur

with the trial Court and hold that Exhibit B-1 does contain the signature of the plaintiff. The lower Court was right in having invoked the normal rule

of comparison of signatures to find whether Exhibit B-1 was signed by the plaintiff or not. On such a comparison we find that the signature in

Exhibit B-1 resembles the signature of the plaintiff. After such an investigation and which we characterise as the right methodology to adopt in such

circumstances, the Court below found that Exhibit B-1 is a validly executed document and was signed by the plaintiff, the 1st defendant''s husband

and the 4th defendant.

Mr. Gopalaswami Iyengar, however, says that even if it does contain the signature of the plaintiff, it is not admissible in evidence. We have

already referred to the fact that an instrument of this kind as Exhibit B-1 should be interpreted as a whole and not in a truncated fashion. Certain

recitals therein ought not to be projected to prominence to understand the real purpose of it. That there was an oral partition has been accepted by

us. That D.Ws. 1 to 3 who were present at the time when Exhibit B-1 was entered into, speak to the declaration made by the parties that there

was such an oral partition when the father was alive. If we accept, therefore, that there was an oral partition, it is easy to find and gather the

intention of the parties in Exhibit B-1. The recitals referred to by Mr. Gopalaswami Iyengar cannot take away the real purpose and intent which

predominates Exhibit B-1. We accept Exhibit B-1 as a mere record of a past event and which past event is referable, to a priori oral partition

effected by the father when he was alive. It, therefore, follows that Exhibit B-1 is not a compulsorily registerable document and that Section 91 of

the Evidence Act is not a bar for letting in oral evidence regarding

The main contention of the learned Counsel for the appellant is that the properties in Tholuvur which stood in the name of Pattayee Ammal are

to be, having, regard to the affluence of the family, treated as joint family properties. The argument is attractive. No doubt, Muthusami Padayachi

obtained about 18 acres of land in the partition effected as between himself and his brothers. Probably, the quantum of the share obtained by

Muthusami Padayachi was greater. But that by itself does not lead to the presumption that such a corpus of joint family properties would yield

surplus income. The plaintiff has not taken the precaution to prove that the family income from such properties obtained by Muthusami Padayachi

was so abundant that it always resulted in a surplus which surplus could be utilised for further annexations to erstwhile joint family properties. It has

now become almost axiomatic that properties purchased by one or the other of the members of a coparcenary or joint family when the family is

joint cannot as a matter of course be treated as joint'' family property. The coparcener who challenges such title in the member and pleads that they

should also be brought to the hotch-pot, ought to establish by cogent and mature evidence that there was enough surplus income which was

available in the joint family and which positively could be the foundation for such annexures made by one or the other of the members of the joint

family. In the absence of such nexus between the purchase price of the purchased properties and the available surplus of the joint family, the

presumption that the properties in the names of the members of a coparcenary should automatically be treated as joint family properties would fail.

In all cases definite proof is required that the further purchase in the names of joint family members ought to have been made and could not have

been made otherwise than from the surplus income of the family. For a greater reason, the rule is more strict in the case of properties in the name

of female members. From time immemorial it has become customary amongst Hindus at any rate for females to have properties of their own. Even

our Sastras describe such property of a female as Stridhana property. Therefore, the concept that a female could own properties of her own is an

age-long concept. If this concept therefore has been an accepted one from ages, then the fact that a female member in a joint family has properties

in her own name would not necessarily lead to the conclusion that the origin of such properties should be traced to the joint family or to the income

from the joint family. This principle also is well established.

In Nagayasami Naidu and Others Vs. Kochadai Naidu and Others, , the Division Bench of this Court consisting of Ramamurti, J. and

Alagiriswami, J., as he then was, upheld the wholesome principle and said it is for the parties who claim properties as joint family properties to

specifically plead the particulars and details in the pleadings and establish the same by adducing necessary evidence. If there is no pleading and if

on the side of the plaintiffs there is no evidence, there is no need for detailed scrutiny of the case of female members or persons claiming through

them, as to the resources of the female members and as to how they acquired the properties in question. More stronger language is not necessary

to reject the contention of the plaintiff in the instant case that the properties which stood in the name of Pattathammal are to be deemed and held as

her own properties. Excepting for the bare ipise dixit of the plaintiff, there is no acceptable material for us to. reject the real title of Pattathammal in

the proper, ties purchased her in Tholuvur village. There is also evidence in this case that : Pattathammals parents were rich and. that they provided

the necessary funds to Pattathammal to purchase the properties. Incidentally the plaintiff''s case is that such. properties were held by Pattathammal

benami for the family. The theory of benami also depends on express pleadings followed up by clear proof. There is, of course, pleadings in this

case but proof is completely absent. As argued by Mr. Ratnam there was no necessity also for Muthusami Padayachi to purchase these properties

in the name of his wife. By then, he became a divided member and partitioned his share of the properties of ""his ancestors. It is not suggested that

Muthusami was indebted and that he wanted to screen the properties from his creditors. Such reason is normally present in a case where

properties are taken by ""A"" in the name of ""B"". Either at is for the purpose of voidance of creditors or for love and affection or for the purpose of

accelerating title in his near and dear, the method of securing properties in fictitious names is resorted to. But in the instant case, the plaintiff has

miserably failed to establish that there was any such occasion for Muthusami Padayachi to purchase these properties in the name of his wife.

Taking all these circumstances into consideration, we are unable to accept the contention of Mr. Gopalaswami Iyengar that the properties in

Tholuvur village in the name of Pattathammal should be deemed to be the properties held by her benami, but for the benefit of the family.

The alternative case of Mr. Ratnam that even if Exhibit B-1 does not clearly set out the case of the parties, the conduct of the plaintiff and the

other members of the family to establish that there was an oral partition is certainly worthy of credence and acceptance. Under Exhibits B-16 to B-

24, the plaintiff disposed of the various properties reciting therein that he secured the properties in a partition and that he is the full owner thereof.

Similar recitals are contained in Exhibits B-11 to B-15 which are the instruments under which the properties of the family were alienated by the first

defendant''s husband. In fact, the 1st defendant herself under Exhibits B-7 to B-10 and B-27 sold certain properties on the foot of the settlement

made by her husband in her favour pursuant to the oral partition effected. Such specific and proved conduct of the plaintiff in having treated the

properties allotted to him as his own properties and particularly the recitals made by him in the various deeds that those properties are his

properties and which he secured at a partition are singular instances to show that the plaintiff cannot approbate and reprobate and give up the oral

partition set up by the defendants for the sake of a second partition in this action.

We are unable to accede to the contention of the learned Counsel for the appellant that the partition is not fair, but unequal. Muthusami

Padayachi took the precaution of dividing the properties belonging to Pattayee Ammal amongst her own sons, viz., the first defendant''s husband

and the 4th defendant. He gave a share to the plaintiff and the other two sons in Silambur properties which were ancestral properties, after taking

into consideration the allotment made by him in favour of the sons through his first wife. Excepting for stating that the partition is unequal or

excepting for the plaintiff as P.W. 1 speaking about it, there is nothing which suggests such inequality. At this juncture, it would be convenient to

refer to the evidence of P.W. 2. He is the Karnam of Tholuvur. He refers to the properties of Pattayee Ammal. He proceeds to say that patta of

such properties stood in the name of Pattayee Ammal. He admits that for a considerable time the properties which stood in the name of Pattayee

Ammal have been transferred in the name of Krishnasamy Padayachi and the 4th defendant. As regards the properties in Silambur, he would admit

that the plaintiff on application has obtained a patta over the properties which he has obtained (obviously in the oral partition) in the village of

Silambur. He also admits that the alienees from the plaintiff are in possession of the properties purchased by them. In the light of the evidence let in

by the plaintiff it does not lie in the mouth of P.W. 1 to still contend that there was no oral partition as pleaded by the plaintiff.

The last part of the case is whether there was a division as to movables. There are two circumstances, at any rate, to support the defendants''

theory that even the movables were divided at the time when the oral partition was effected. Exhibit. A-69 was one-of the promissory notes

executed by P.W. 6 in favour of Muthusami Padayachi. After Muthusanri Padayachi''s death, D.W. 1''s husband filed a suit on the said promissory

note in O.S. No. 621 of 1964, on the file of the District Munsifs Court, Vridhachalam and obtained a decree. Not satisfied with having obtained

such a money decree, he brought the property of the judgment-debtor to sale and in the Court-auction held for that purpose, he purchased the

property. The plaintiff, who is so active, would not have kept quiet if the promissory note on which the suit was laid by the 1st defendant''s

husband was family property and when the 1st defendant''s husband was processing through Court to realise the monies for himself under it. The

second instance is seen from Exhibits A-56 and A-59. These were promissory notes executed by one Nataraja in favour of Muthusami Padayachi.

P.W. 11 is the son of Nataraja. Herein also the suits were laid by Krishnasamy, the husband of 1st defendant. He issued suit notices prior to the

institution of the suit. They are Exhibits A-105 and A-106. In the said notices, he demanded the said amounts in his individual capacity and not as

head of the family or manager of joint family. These two instances are referred to by us only to support the defendants'' theory that in the oral

partition not only the immovables but also movables were divided as between all the parties who were entitled to it.

We are therefore, satisfied that there was an oral partition which was effected by Muthusamy when he was alive, that the allotment of the

properties in favour of the plaintiff and the other sharers is not unequal; that the properties which stood in the name of Pattayee in the village of

Tholuvur are her properties in which the plaintiff cannot project any right, title or interest and that in the said partition both immovables and

movables were divided and lastly Exhibit B-1 is a record of a past oral partition effected as above. The plaintiff has therefore failed to establish that

a cause has arisen for him to seek another partition when there was an earlier Partition. The lower Court was right in having dismissed the suit.

The appeal fails and is dismissed with costs.