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P.Arumugham vs P.Balasubramaniam on 8 August, 2008

IN THE HIGH COURT OF JUDICATURE OF MADRAS

DATED: 08.08.2008

CORAM:

THE HONOURABLE MR. JUSTICE G.RAJASURIA

A.S.No.981 of 1993

1.

P.Arumugham

2.

P.Chidambaram

Appellants

vs

1.

P.Balasubramaniam

2.

Palaniammal

3.

Vanchi Ammal

4.

R.Muthusamy Chettiar (died)

5.

Jayadevi

6.

M.Ranganathan

7.

M.Rajendran

8.

V.Muthulakshmi

9.

D.Mahalakshmi

10.G.Mallika

Respondents

Appeal against the judgment and decree of the learned II Additional Subordinate Judge, Coimbatore passed in O.S.No. 509 of 1985 dated 18.08.1993.

For appellant : Mr.S.V.Jayaraman, S.C. For

Mr.G.Ravishankar

For respondents : Mr.P.Veeraraghavan for R1 Mr.C.R.Prasannan for RR5 to 10

JUDGMENT

This appeal is focussed as against the judgement and decree dated 18.8.1993, passed in O.S.No.509 of 1985 by the learned II Additional Subordinate Judge, Coimbatore. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.

2. Heard the learned counsel appearing for the parties.

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

3. Tersely but broadly, succinctly but narratively, the case of the plaintiffs as stood exposited from the

averments in the plaint could be portrayed thus:

(a) One Periyapalaniappa Chetty had three sons, namely, the first plaintiff and the defendants 1 and 2 and two

daughters, namely, D3 and D4, all born through his first wife Marudhayammal. The second plaintiff was his second wife.

(b) Periyapalaniappa Chetty died on 16.4.1975, leaving behind the aforesaid two plaintiffs and defendants 1 to

4 as his legal heirs. The suit properties described in the schedule of the plaint belonged to the joint family. The plaintiffs and defendants 1 to 4 constituted the Hindu Joint Family and they have been enjoying those properties jointly.

(c) The defendants, by exercising undue influence over Periyapalaniappa Chetty, purchased the land

measuring an extent of 2.34 acres in Survey Nos.222/2 and 271 for a sum of Rs.9000/- from out of the joint family income. Defendants 1 to 4 tried to dispose of the land in Survey No.532 to an extent of 1.99 acre in favour of D5, R.Muthusamy Chettiar. Whereupon the lawyer's notice was sent by the second plaintiff, for which, the defendants replied with false allegations as though there was a partition of the lands and houses during the year 1962 itself among the co-sharers concerned. (d) Inasmuch as D5 purchased a portion of the suit property during the pendency of the suit from D1 and D2, who had no right to alienate the same, D5 has been added in the suit subsequently. After the death of Periyapalaniappa Chetty, D1, being the eldest son in the family, became the kartha of the family. He obtained the compensation amount of Rs.17,365/- from the Government in connection with the acquisition of the joint family land measuring an extent of 3.02 acres in Survey No.344/1 by the Government and he is willing for apportionment of the said amount among the members of the joint family. Despite the incessant demand made by the plaintiffs for partition of the suit properties, the defendants were evading the same under one protext or other. (e) As per law, the first plaintiff and defendants 1 and 2 are entitled to 1/4th share each in the suit property, consequent upon the death of Periyapalaniappa Chetty, who had 1/4th share in the suit property. The said 1/4th share of Periyapalaniappa Chetty is to be apportioned among his wife and children. Accordingly, the plaintiffs prayed for partition and for mesne profits.

4. Per contra, denying and refuting, challenging and impugning the allegations and averments in the plaint, D1

and D2 filed the written statement, the pith and marrow of it would run thus:-

The properties of the family were partitioned even 23 years anterior to the filing of the suit during the life time of Periyapalaniappa Chetty, who himself did not take any share for himself, as he was very old at that time; during the year 1963 itself, the first plaintiff got himself separated from the family, after getting his share, so as to say an extent of 3.30 acres in Survey Number 344 in Vadavalli Village and an extent of 6 cents of vacant land in the Western portion of the 4th Schedule of the plaint (the description is not found to be correct as per the facts available on record); the defendants were allotted with the lands in Survey No.558/A, 571/1 and 532/1 and the house properties described in items 1 to 3 of the II Schedule of the plaint; the defendants 1 and

2 were unmarried at the relevant time and they were living with their parents; as per the terms of the said

partition, D1 and D2 started enjoying the agricultural lands on the Southern half and Northern half respectively; D1 was allotted with the Western half of the house property and D2 was allotted with the Eastern half of it; the said Periyapalaniyappa Chetty was maintained by D1 and their mother(P2) was maintained by D2; Only six months anterior to the filing of the suit, P2 joined with the first plaintiff in filing the suit; in fact, the parents relinquished their rights in favour of D1 an D2 as they were maintained by them only; the first plaintiff, after such partition, purchased house properties in his name and is enjoying the same, but he has not added those properties for being partitioned, in the suit; defendants 1 and 2 purchased an extent of 2.34 acres of agricultural land in Survey No.221 and 222/2 as per the sale Deed dated 21.6.1968, out of their own

earnings; since the land in Survey No.344, which was allotted to the share of the first plaintiff was acquired by the Government, he received the compensation amount; separate patta books were also issued in respect of the respective sharers and they have been paying kist separately; the suit is barred by limitation and the plaintiffs

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

prayer for incidental reliefs, including the mesne profits are untenable. Accordingly, the defendants prayed for dismissal of the suit.

5. The trial Court framed the relevant issues. During the trial, on the side of the plaintiffs one

Balasubramaniam was examined as P.W.1 and Ex.A1 to A13 were marked. On behalf of the defendants, the second defendant-Chinnappan was examined as D.W.1, and fourth defendant Vanjiammal was examined as D.W.2, and 15 documents were marked as Ex.B1 to Ex.B15. Ultimately, the trial Court decreed the suit and passed the preliminary decree allotting an extent of 7/24th share in favour of P1 and 1/24th share in favour of P2; granting liberty to the plaintiffs to initiate separate action to claim mesne profits.

6. Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, D1 and D2 have

preferred this appeal on the following grounds, the pith and marrow of them would run thus:

(1) the trial Court erred in holding that the suit properties are the joint family properties, ignoring the oral partition, which was effected during the year 1963;

(2) the trial Court should not have decreed the suit ignoring the plea of limitation;

(3) the admission made by the first plaintiff in his deposition was not considered by the trial Court;

(4) the factum of the first plaintiff having received the entire compensation amount from the Government in respect of the land acquired by the Government, which was earlier allotted to the plaintiffs in the oral partition, was not considered by the trial Court;

(5) the trial Court failed to hold that the land in Survey Nos.222/2, 221/2 are the self-acquired properties of D1 and D2 as per Ex.A7.

(6) the first plaintiff purchased two houses in his name and it was not his case that he purchased them from out of the income from his wife's properties and these facts have not been considered by the trial Court;

(7) the lower Court had given undue weightage to Ex.B8 and Ex.B9 notices sent by the Survey Department during the year 1976;

(8) Without any basis, Ex.B1 to Ex.B15 and the deposition of D.W.1 were discarded by the trial Court.

(9) the recitals in Ex.A8-the partition deed, which emerged between D1 and D2 were wrongly considered by the trial Court along with the evidence of P.W.1.

(10)the trial Court failed to hold that in any event, the said compensation received by the first plaintiff and the two houses purchased by him should also be treated as joint family property, for partition.

Accordingly, they prayed for setting aside of the judgement and decree of the trial Court.

7. The learned counsel for the contesting respondents/defendants would raise the plea of res-judicata by

presenting the memo of the first respondent to the effect that the common judgement and decree dated 18.8.1993 was relating to O.S.No.509 of 1985, on the file the Court of II Additional Sub-Judge, Coimbatore, which was filed by the plaintiffs seeking partition and O.S.No.337 of 1988, which was filed by the first plaintiff in O.S.No.509 of 1985 for injunction; the present appeal is focussed as against the portion of the common judgement and decree relating to O.S.No.509 of 1985, at the instance of defendants 1 and 2 therein; whereas, the same defendants herein filed appeal A.S.No.154/94 before the I Additional District Judge cum Chief Judicial Magistrate, Coimbatore, as against the portion of the said common judgement and decree relating to O.S.No.337 of 1988, and the said appeal was dismissed for default on 31.12.1996 itself. As such,

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

the said judgement and decree dated 31.12.1996 passed in A.S.No.154/94 would operate as res-judicata for the appellants herein to prosecute this appeal.

8. Whereas, the learned counsel for the appellants would contend that the dismissal of A.S.No.154/94 by the

District Court for default would in no way hamper the appellants herein to argue the appeal before this Court, as the said appeal, which was dismissed, was relating to O.S.No.337 of 1988, which was one for seeking bare injunction, and it was not a title suit. Both sides ultimately agreed that the objection based on res-judicata also could be decided along with the adjudication in the appeal. As such the following points emerged for consideration: (i) Whether this appeal is barred by res-judicata in view of the judgement and decree dated 31.12.1996 in A.S.No.154/94?

(ii) Whether there was any oral partition among the family members during the year 1963 and shares allotted

thereunder as contended by defendants 1 and 2?

(iii)

Whether the suit is bad for partial partition?

(iii)

Whether the compensation amount received by the first plaintiff from the Government in respect of the

land acquisition proceedings should also be subjected to partition along with the two houses purchased by him? and Whether the suit is bad for partial partition?

(iv)

What shall be the shares of the respective co-sharers?

(v)

What are the rights of D5 in having purchased certain items of the suit property from D1 and D2?

(vi)

Whether there is any infirmity in the judgement and decree of the trial Court?

Point No.(i): The learned Senior counsel for the first respondent/plaintiff placing reliance on various precedents would develop his argument that if by way of a common judgement two suits are decided, out of which, two appeals are filed, then the disposal of one appeal would have impact on the adjudication of the other pending appeal. It is also his contention that the dismissal of the earlier appeal A.S.No.154/94(O.S.No.337 of 1988) by the First Additional-cum-Chief Judicial Magistrate, Coimbatore, for de-fault, would operate as res-judicata.

9. Whereas, the learned counsel for the appellants/D1 and D2 would submit that absolutely there is no scope

for ushering in the principle of res-judicata in the facts and circumstances of this appeal, in fact the previous

appeal, namely, A.S.No.154/1984(O.S.No.337 of 1988) was dismissed for default and it was an appeal as against the decreeing of the suit O.S.No.337 of 1988, which was filed for bare injunction.

10. At this juncture, it is just and necessary to refer to the following decisions cited by the learned counsel for the plaintiff as under:-

82 L.W.425-KARTHIAN KONE, CO-TRUSTEE OF AYAN PAPAKUDI CHOULTRY CHARITY V. BAGHYATHAMMAL CO-TRUSTEE OF AYAN PAPAKUDI CHOULTRY CHARITY - an excerpt from it would run thus:-

In Rajlakshmi Desi v. Banamali Sen (3) their Lordships point out that the test of res judicata is the identity of title in the two litigations and that so long as the competency of the former court to try the subsequent suit cannot be denied, the general rule of res judicata applies. Even apart from this, the defendant Kartik Kone against whom the point was decided in the second appeal, sought to have judgment of the Court reviewed. Undoubtedly, Kartik Kone could have appealed against the decision, for otherwise it is difficult to see how a review application could at all have been maintained. The learned Judge in dealing with the review application pointed out that though the question was raised fo the first time in the second appeal, at the time of

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

the hearing as objection was raised, and, as we said earlier, both sides argued the question, before the learned Judge rendered his decision in the second appeal. We may further point out that far from the observations of the learned Judge being in the nature of an obiter dicta, the actual decision on this point was incorporated in the decree in the second appeal, the clause of the decree reading thus: "That the first defendant (Bhagyathammal) shall also be entitled to joint management along with the plaintiff (Kartik Kone) of the trust properties and the first defendant shall be at liberty to take appropriate steps to work out her rights to joint management by way of separate proceedings "

There is accordingly a decree embodying the decision of the Court and it seems to us that it can no longer be maintained that the observations are merely obiter dicta having no executable force. It is not open to Kartik Kone to question the decree unless he can say it is nullity which it obviously is not. In Kolu Nambiar v. Chathu Nambiar (4), this Court held that a matter could be in issue under S.11 of the Civil Procedure Code even though an express issue had not been framed. It would be in issue if the decision about it is necessary for the decree. They say further that if the finding has been arrived on a matter which is not necessary for the disposal of the suit and it is not made the basis of the decree which is given in spite of it, that matter cannot be said to have been substantially in issue between the parties and such finding would be more in the nature of obiter dicta. It follows that where the finding was incorporated in a decree, the position would clearly be otherwise. This has been emphasised in Sankara Mahalinga Chettiar v. Muthulakshmi (5), where it was held that though a finding might be unnecessary, yet if it is embodied in the decree, it will operate as res judicata."

11. The perusal of it would at once make the point clear that the aforesaid decision is not enuring to the

benefit of the plaintiff and it is quite obvious that in the cited decision their Lordships clearly observed that if a decree embodies the decision of the Court, it can no longer be contended that the observations are merely obiter dicta, having no executable force.

12. Here in the judgement dated 31.12.1986, passed in A.S.No.154/94 by the I Additional District

Judge-cum-Chief Judicial Magistrate, Coimbatore, absolutely there is no such finding is found embodied relating to the title of any one over the suit property. The said injunction suit itself was an off shoot litigation, which was one for injunction. A bare perusal of the common judgement in O.S.No.509 of 1985 and O.S.No.337 of 1988 passed by the Sub Court, Coimbatore on 18.8.1993 would evince and evidence that only two issues were framed concerning O.S.No.337 of 1988 as under: (i) Whether the plaintiff is entitled to permanent injunction as prayed for?;

(ii) to what relief the plaintiff is entitled to?

13. No common issues in these two suits were framed and decided. The said injunction suit O.S.No.337 of

1988 was filed by Balasubramaniam-the first respondent/plaintiff herein, even during the pendency of

O.S.509 of 1985, which was filed by the same Balasubramaniam and his mother Palaniammal for the

substantive relief of partition and consequential reliefs. Instead of filing a separate suit, namely, O.S.No.337 of 1988, for injunction, he could have very well filed an interlocutory application in the pending suit O.S.509/85 and sought for necessary relief. But he has not chosen to do so. In my considered opinion, the second suit, namely, O.S.337 of 1988, strictly speaking, was not at all maintainable and it was against the wholesome public policy that there should not be any multiplicity of proceedings. The relief of injunction obtained in O.S.No.337 of 1988 in stricto senso, is interim in nature as pending adjudication in O.S.No.509 of

1985 only it could be operative and the ultimate decision in the partition suit would have direct legal impact

on the said injunction. It is therefore crystal clear that a virtual interim injunction cannot be put forth as one constituting as resjudicata as against the proceedings in the connected partition suit.

14. The learned counsel for the plaintiff would contend that there need not be any specific issue framed and

even then the said decision would operate as res-judicata.

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

15. I am at a loss to understand as to how the decision in an injunction suit, where the title to the suit property

cannot be gone into in the judgement to be rendered relating to it, could be treated as resjudicata as against the person, who seeks remedy in a different proceedings based on title. The substantial issue is as to whether the suit properties are joint family properties or not and whether there was already any oral partition or not and these issues are found framed in the partition suit O.S.No.509 of 1985 and relating to that suit, an d for adjudication of those issues alone, now the present appeal is pending. In such a case, by no stretch of imagination, it could be taken that the dismissal of the said appeal by the District Judge could be taken as one operating as res-judicata as against the appellants in this appeal.

16. The learned counsel for the plaintiff also relied on the decision of the Honourable Apex Court reported in

AIR 1966 SCC 1332-SHEODAN SINGH, V. DARYAO KUNWAR, excerpts from it would run thus:-

(10a). Re.(i): The judgment of the Additional Civil Judge shows that there were five issues common to all the four suits, and the main point raised in these common issues was whether Harnam Singh and his adopted son Ram Kishan were joint with the appellant and his father and whether Ram Kishan died in a state of jointness with them. This main question was decided against the appellant and his father and it was held by the Additional Civil Judge that Harnam Singh and Ram Kishan were separate from the appellant and his father and that Ram Kishan did not die in a state of jointness with them. On this view of the matter, the Additional Civil Judge held that the respondent, Smt Daryao Kunwar, succeeded to Ram Kishan on his death and was entitled to the separated share of Ram Kishan and the appellant and his father had no right to the property by survivorship. In the face of the judgment of the Additional Civil Judge which shows that there were five common issues in all the four suits, the appellant cannot be heard to say that these issues were not directly and substantially in issue in Suits Nos. 77 and 91 also. Further this contention was not raised in the High Court and the appellant cannot be permitted to raise it for the first time in this Court. Besides the question whether these common issues were directly and substantially in issue in Suits Nos. 77 and 91 can only be decided after a perusal of the pleadings of the parties. In the paper book as originally printed, the appellant did not include the pleadings. Later he filed copies of the plaints an application. Even now we have not got copies of the written statements and replications, if any of Suits Nos. 77 and 91. In the circumstances we must accept from the fact that the judgment of the Additional Civil Judge shows that these five issues were raised in Suits Nos. 77 and 91, that they were directly and substantially in issue in those suits also and did arise out of the pleadings of the parties. We therefore reject the contention that issues as to title were not directly and substantially in issue in Suits Nos. 77 and 91.

12. Then it is urged that all the four suits were consolidated and decided on the same day by the same

judgment and there can therefore be no question that Suits Nos. 77 and 91 were former suits and thus the decision as to title in those suits became res judicata. It is not in dispute that the High Courts decision in the appeals arising from Suits Nos. 77 and 91 was earlier. Reliance in this connection is placed on the decision of this Court in Nahari v. Shankar. That case however has no application to the facts of the present case, because there the suit was only one which was followed by two appeals. The appeals were heard together and disposed of by the same judgment though separate decrees were prepared. An appeal was taken against one of the decrees. In those circumstances this Court held that as there was only one suit, it was not necessary to file two separate appeals and the fact that one of the appeals was time-barred did not affect the maintainability of the other appeal and the question of res judicata did not at all arise. In the present case there were different suits from which different appeals had to be filed. The High Courts decision in the two appeals arising from Suits Nos. 77 and 91 was undoubtedly earlier and therefore the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case. The contention that there was no former suit in the present case must therefore fail.

13. Re.(iv): This brings us to the main point that has been urged in these appeals, namely, that the High Court

had not heard and finally decided the appeals arising out of Suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

two appeals arising out of Suits Nos. 77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiffs appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit. But none of these considerations apply in the present case, for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the appellant and his father. It is true that the High Court dismissed the appeals arising out of Suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from Suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merits, the result of the High Courts decision is to confirm the decision on the issue of title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial court on the merits, whatever may be the reason for the dismissal of the appeals arising from Suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of Suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of Suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Courts decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the merits. It is well settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res sub-judice and it is the decree of the appeal court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming toto the trial courts decision given on merits, the appeal courts decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannot therefore accept the contention that even though the trial court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal."

17. A mere perusal of the above said excerpt, including the entire judgement would at once make the point explicitly clear that the cited decision is not applicable to the facts and circumstances of this case. It is apparent in the cited precedent that as many as 5 issues were framed common to all the four suits involved in

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

that matter and the main issue raised was whether Harnam Singh and his adopted son Ram Kishan were joint with the appellant and his father and whether Ram Kishan died in a state of jointness with them.

18. As such, in that factual matrix, the Honourable Apex Court, for reasons as found set out in the above said

excerpts, held that the plea of res-judicata was applicable. But here my above discussion supra would clearly indicate that the said injunction suit itself was an off shoot litigation, which ought not to have been instituted and the trial Court also has not framed any issues relating to the joint nature of the suit property and also about the alleged oral partition. In fact, the parties are not the same in both the suits and it is quite obvious, warranting no further elaboration.

19. The learned counsel also cited the following decisions relating to the plea of res-judicata:

AIR 1973 ALLAHABAD 63 BUDHAN V. LALA HARBANS LAL AND OTHERS;

AIR 1962 SUPREME COURT 338 BADRI NARAYA SINGH VS. KAMDEO PRASAD SINGH AND ANOTHER;

AIR 1976 SUPREME COUT 1645 LONANKUTTY V. THOMAN AND ANOTHER;

AIR 1937 MADRAS 544 KRISHNAN NAIR V. KAMBI;

2001(1) CTC 222 RENGANAYAKI AND ANOTHER VS. K.R.RENGANATHA MUDALIAR;

AIR 1990 NOC 163(ANDHRA PRADESH)- PALA NARAYANAN AND ANOTHER VS. M.VEERA SAMAIAH.

20. In view of the ratiocination adhered to by me, in not upholding the plea of res-judicata, the aforesaid

precedents also are found to be not relevant to this case. Accordingly, this point No.(i) is decided to the effect that the judgement dated 31.12.1986, passed in A.S.No.154/94, would not operate as res-judicata as against the appellant herein from arguing this appeal on merits.

21. Point No.(ii) Indubitably and unassailably by items 1 to 4 of the suit properties, which are agricultural

lands and an extent of 20 cents of plot area in Survey No.225/1, as described in the same schedule of property and the three houses referred to therein, are the joint family properties. Even though the suit property, as found described in the schedule of the plaint is not so clear, nevertheless the learned counsel for the plaintiff would clarify the factual position by portraying and detailing that the suit properties could be taken under three segments as found set out in the plaint; the first segment would comprise of six items of agricultural properties, totally measuring an extent of 10 acres and 8 cents; the second segment is the 20 cents of land in Survey No.225/1; and the third segment would refer to the three houses. The items 5 and 6 of the agricultural properties referred to supra are claimed to have been acquired by Arumugha Chettiar (D1) and Chidambaram Chettiar (D2) as per Ex.B7-the sale deed dated 21.6.1968.

22. The learned counsel for the plaintiff would contend that those two items of properties covered under

Ex.A7 are also the joint family properties, as there had been no partition at all much less any oral partition, as claimed by the defendants; the said items 5 & 6 were purchased in the name of D1 and D2 from out of the income derived from the joint family nucleus, to wit from out of the income derived from items 1, 2, 3 and 4

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

of the agricultural lands referred to supra; and those items were admittedly in possession and enjoyment of the defendants and their father Periyapalaniappa Chetty. Accordingly, the learned counsel for the plaintiff would pray for partition.

23. The learned Senior counsel for the defendants would advance his argument to the effect that the said

Periyapalaniappa Chettiar died only on 16.4.1975. Even during his life time, there was only a family arrangement/understanding for convenient enjoyment of the property and accordingly, the plaintiff was in possession of tbhe Survey No.344/1 measuring an extent of 3 acres and 2 cents, which is not one among the suit properties herein, but it was subsequently acquired by the Government and the compensation of Rs.17,365/- paid to the R1/plaintiff herein, being the eldest son of Periyapalaniappa Chetty, being the kartha of the family, after the death of the said Periyapalaniappa Chetty. Even though the said sum of money was not referred to in the schedule of the plaint for being partitioned, nonetheless the first respondent/plaintiff is ready to distribute the shares of the other co-sharers and such receipt of compensation by the first plaintiff ipso facto would not lead to any presumption of any oral partition. Ex.A8, the partition deed, according to him, which emerged between D1 and D2 during the pendency of the suit would torpedo the plea of oral partition and accordingly he prayed for the dismissal of the appeal.

24. The contention of the learned Senior counsel for the defendants would be to the effect that even as early as

in the year 1963 there was an oral partition among Periyapalaniappa Chetty and his descendants and as per which, the divided sharers started enjoying their respective share; the first plaintiff also acquired two houses and similarly defendants 1 and 2 also acquired items 5 & 6 of the agricultural suit properties; patta also correspondingly got changed in the name of the respective sharers incommensurate with and in concinnity with the shares allotted at the oral partition and that the said oral partition became a fait accompli.

25. The learned Senior counsel for defendants 1 and 2, au courant with facts and laws alternatively would put

forth the point that in the event of this Court not countenancing and upholding the plea of the defendants that there had been oral partition, then this Court might order for partition, in respect of the two houses also purchased by the first plaintiff in his name from out of the joint income derived from the joint family nucleus and also the compensation amount, which admittedly, the first plaintiff received from the Government.

26. In this factual matrix, it is just and necessary, at the first instance, to scrutinise the evidence as to whether

the oral partition as alleged by the defendants, in fact had taken place at all.

27. The learned counsel for the plaintiff placing reliance on Ex.A8-the partition deed, dated 2.9.1989, which

emerged during the pendency of the suit, would advance his argument that the very recitals in that document would torpedo the plea of oral partition as put forth by the defendants.

28. A bare perusal of Ex.A8 would unequivocally highlight and spotlight the fact that the said document is

fraught with unreal facts, which are quite antithetical to what the defendants themselves had contended earlier in their written statement. There is no reference in Ex.A8, about the oral partition, which allegedly had taken place during the year 1963. Had really an oral partition taken place, certainly there would have been some reference to it in Ex.A8. The recitals in Ex.A8 would proceed on the footing as though Periyapalaniappa Chetty was having ancestral properties, and consequent upon his death, those properties devolved upon defendants 1 and 2 and that they wanted to partition such properties in the presence of Panchayatdars. The learned counsel for the plaintiff would correctly and convincingly strike the nail on the head of it by arguing spotlight and highlight that the recitals in Ex.A8-Partition Deed dated 2.9.1989 would ignore the very existence of the plaintiffs as well as the daughters of the said Periyapalaniappa Chetty.

29. On the contrary, unconvincingly and dubiously from the defendants' side, the explanation, which was

forthcoming relating to Ex.A8-the Partition Deed dated 2.9.1989, was to the effect that only for the purpose of availing loan such a document was brought about by the defendants. Whereas, the learned counsel for the plaintiff would correctly torpedo such explanation by pointing out that a perusal of Ex.B15-the copy of plaint

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

filed in O.S.No.3701 of 1991, would reveal that the bank filed the suit as against the defendants for recovery of dues long prior to the emergence of Ex.A8 and that there is no iota or shred of evidence to exemplify that based on Ex.A8 any loan was availed by the defendants.

30. The whole kit and caboodle of evidence on record would in no way highlight that Ex.A8 was brought

about by the defendants purely for the purpose of obtaining loan. If really any oral partition had taken place during the year 1963, it is not known as to why during the year 1968, as per Ex.A7-the Sale Deed dated 21.6.1968, both D1 and D2 should have purchased items 5 & 6 in their joint names and the very Ex.A7-Sale Deed dated 21.6.1968 itself is indicative of the fact that there was no actual division among the co-sharers.

31. The learned counsel for the plaintiff drawing the attention of this Court to Ex.B1 to Ex.B14, would

advance his argument that none of those documents issued by the Revenue officials would enure to the benefit of the defendants to canvass their plea of oral partition.

32. Ex.B1 is the patta book dated nil relating to 4th item of the suit property, which stands in the name of D1

and one other 3rd party and in that document it is found specified that the property is an ancestral property.

Ex.B2 patta book dated 1.7.1974 stands in the name of D1 and D2 relating to items 5 & 6, which have purchased as per Ex.A7, and in that document it is found mentioned that it is an ancestral property.

33. The learned counsel for the plaintiff would develop his argument to the effect that even as per Ex.B2, the

suit items 5 & 6 are stated to be the joint family property of Periyapalaniappa Chetty and not the separate self-acquired properties of D1 and D2. Ex.B4-the patta book dated 6.10.1986 stands in the name of the first plaintiff and D1 and D2 and various other persons, relating to the said second segment of the property in Survey No.225/1. However, Ex.B4 is relating to a vast extent of land and not only relating to the 20 cents of land, as contemplated under the second segment. As such, the learned counsel for the plaintiff would develop his argument that had there been an oral partition in the year 1963, then the first plaintiff's name would not have found a place there. Ex.B5 patta dated 5.10.1986 is relating to items 1, 2, 3 of the agricultural properties, which stands in the name of the sons of Periyapalaniappa Chetty and there is no indication that there was any division of status among them. Ex.B6 dated 6.10.1986 is the chitta relating to items 4 & 5 of the suit properties. This stands in the name of D2.

34. The learned counsel for the plaintiff would raise a valid contention that item No.4 was sold in favour of

D5-Muthusamy Chettiar, but Ex.B6-Chitta-dated 10.3.1985 does not reflect the same. Ex.B8 and Ex.B9- the Survey notices dated 6.8.1976 are in the name of D1 and D2 respectively, which are relied on by the defendants to advance the plea that there had been oral partition and thereupon alone those survey notices were sent to D1 and D2 relating to item No.4. But the learned counsel for the plaintiff would deny their genuineness and submit that those are only mere Survey notices and nothing more and that cannot also be taken as evidence of the alleged oral partition, which was claimed to have emerged during the year 1963.

35. Ex.B12 dated 31.3.1983 and Ex.B13 dated 19.2.1985 are the house tax receipts in the name of the

deceased Periyapalaniappa Chettiar, and that would indicate that there was no mutation in the house tax register relating to the house properties, which were also claimed to have been partitioned as per the defendants.

36. As such, the learned counsel for the plaintiff has correctly highlighted that those Exhibits referred to supra

marked on the side of the defendants would not enable the Court to arrive at a reasonable conclusion that there

was oral partition during the year 1963. He would also convincingly argue that had really there been an oral partition in the year 1963, then the defendants must be able to produce patta or Revenue records or tax receipts anterior to 1974 to that effect, but apparently, between 1963 and 1974 not even any modicum or exiguous extent of evidence has been produced to prove the said oral partition.

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

37. The learned counsel for the plaintiff would be right in his argument that the plaint is as silent as silence

could be relating to the details about the oral partition. Normally, if an oral partition had taken place, the party, who relies on such oral partition, must be able to expatiate as on what date, before whom and at which place, it had taken place. But there is no such indication at all in the written statement. Even in the reply notice Ex.A13 dated 22.6.1985, which emerged in response to Ex.A12 dated 23.5.1985- the lawyer's notice sent by the plaintiff to D1 and D2, there are no details about the oral partition. On the contrary for the first time, on the defendants' side, DW.1 Chinnappan, (Claiming to be D2, but in the plaint D2 is referred as Chidambaram) would depose as though the partition was effected in the presence of elders namely, Avinasi Chetty, Chinnapalaniappa chetty, Vanji(D.W.2). No date has been specified. None of those Panchayatdars and elders have been examined to speak about such oral partition. In consonance with the deposition of D.W.1, D.W.2 (D4) also spoke about the oral partition unconvincingly. The depositions of D.W.1 and D.W.2 the parties to the proceedings are turned out to be nothing but their ipse dixit and it is not preceded by averments in the written statement. It is a trite proposition of law that any amount of evidence, without pleadings, should be eschewed. In this connection, the following decisions of the Full Bench of this Court reported in 2006 (4) L.W.409-B.SURESH CHAND VS. 1.STATE OF TAMIL NADU, REP.BY THE SECRETARY REVENUE DEPARTMENT, FORT ST.GEORGE, MADRAS-9, 2.THE DEPUTY COMMERCIAL TAX OFFICER, THIRUPATTUR, NORTH ARCOT DISTRICT has been cited by the learned counsel for the plaintiff. In the said decision, various decisions of the Honourable Apex Court have been adverted to and certain excerpts from it would run thus: "28. In this context it will be useful to refer to Order 6 Rule 2 of C.P.C., which reads as follows:

"Order 6 Rule 2: Pleading to state material facts and not evidence.- (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which thek party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved."

29.A reading of the above provisions show that the party must plead all material facts on which he means to rely at the trial. If any one of the material fact is omitted, the statement of claim is bad and it would mean no pleading and no cause of auction for the suit. If material facts are not pleaded, a court cannot permit evidence to be led. In 1977 (1) S.C.C.511 (Udhav Singh vs. Madhav Rao Scindia) the Supreme Court has defined the expression "material facts' in the following words:- "All the primary facts which must be proved at the trial by a party to establish the existence of a cause of auction or his defence are material facts".

30. The distinction between "material facts' and "particulars" cannot be overlooked. Material facts are primary

and basic facts which must be pleaded by the party in support of the case set up by him, either to establish his cause of auction or defence. Since the object and purpose is to enable the opposite party to know the case he has to meet, in absence of pleading a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit. Particulars, on the other hand, are the details of the case. They amplify, refine and embellish material facts. They give the finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative."

38. It is therefore clear that the Full Bench of this Court, adverting to the Honourable Apex Court's

judgements, categorically set out that if material particulars are missing in the pleadings, then oral evidence

cannot be entertained. It is also worthy and significant to note that even before the institution of the suit, in the reply notice the defendants have chosen to come forward with the plea of oral partition and the plaintiff in the plaint contended that such plea of oral partition was false and despite that in the written statement there found no details set out. The learned counsel for the defendants placing reliance on the deposition of P.W.1(P1-Balasubramanian) during his cross-examination, has advanced his argument that P.W.1 candidly and categorically admitted that there had been an oral partition. No doubt the perusal of the deposition would

evince that there is one sentence found in the cross-examination as under:- gpwF th';fpajpy; mJ jdpg;gl;l brhj;J / / / / / / @

jdpg;gl;l ghfk; gphpj;j

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

39. Per contra, the learned counsel for the plaintiff would submit that no such admission was made by P.W.1,

conveying such a meaning as though there had been an oral partition.

40. At this juncture, I would like to point out that a deposition has to be read as a whole. The tenor of the

deposition is the sure test. When doubt arises as to whether a party unwittingly gave any answer to a question, in my considered opinion placing reliance on a stray answer to a question during cross-examination and deciding a serious matter involving a serious issue relating to the existence or otherwise of the oral partition, would lead to travesty of justice. The duty of the Court in such circumstances under Section 165 of the Indian Evidence Act is to ascertain from the witnesses as to his own contradictory versions in his deposition.

41. Here it is the consistent contention of P.W.1 even in his pre-suit notice as well as in the plaint and also in

his deposition during Chief-examination and in cross-examination that there had been no oral partition and in such a case, placing reliance on a fragment of a sentence during cross-examination of P.W.1 cannot be treated as the decisive factor to decide the lis. It is also not readily known as to whether it was recorded properly. I am fully aware of the fact that the appellate Court cannot look askance at the deposition recorded by the lower Court. But if the circumstances warrant so, the appellate Court should not hesitate to doubt such recording of the deposition. Hence, I would like to extract the portion before and after the doubtful sentence including the disputed portions, as under:- "1963 nyna v';fs; ghfk; th';fpf; bfhz;L jdpf;Foj;jdk; nghndd; vd;why; rhpay;y/ FoapUf;Fk; tPL v';fs; nghpy; th';fpaJ/ tptrha tUkhdk; jtpu ntW tUkhdk; Vjkpy;iy/ FoapUf;Fk; tPL jhthtpy; fhl;ltpy;iy/ mJ jdpf;Foj;jdk; nghdt[ld; th';fpaJ/ 2 fpiuaj;jpw;F th';fpaJ/ tPl;Lthp v';fs; nghpy; eh';fs; fl;o tUfpnwhk;/ ,J bghJf; FLk;gk; brhj;J my;y/ jdpg;gl;l brhj;J/ ghujpahh; (,jd; mrypd; 7 k; gf;f Kot[)/ University f;F xU g{kp fpiuak; S.No.344, 3.32 br 3/30 vd;why; rhpay;y/ mJ 1963 k; tUlk; Vw;gl;l ghfj;jpy; tpl;lJ vd;why; rhpay;y/ / / / / / / //@

42. A mere perusal of the aforesaid extract at once support the view taken by me that such stray portion of the

sentence in the middle of the cross-examination cannot be taken as admission by P.W.1 about the alleged oral partition.

43. The learned counsel for the plaintiff would also correctly advance his argument that mere separate mess

and separate physical living from other coparceners, would not constitute division in coparcenary status relating to coparcenary properties. In support of his contention, he would place reliance on the decision of this Court reported in AIR 1987 Madras 24- P.KALIAPPA GOUNDER AND ANOTHER V. MUTHUSWAMI MUDALIAR, certain excerpts from it would run thus:- "8.Partition is the intentional severance of the joint ownership by an unequivocal expression of an intention to bring out severance in the eye of law and further implementing it by actual division by metes and bounds. What was held in common as a single property gets converted into a holding in severalty and in specie. Joint ownership turns into ownership in severalty and in specie. It is true that 'partition' is not a transfer. But there must be the element of conversion as the joint ownership into ownership in severalty and in specie. Therefore, the essence of partition is that the joint ownership is put an end to and the joint owners come to hold the property in severalty and each in his own individual right. In this country, it is common that not only coparceners of a joint Hindu family but also individuals join or continue together to own property in common. If this common ownership is to be put an end to not only in theory but also in practice, there must be primarily severance of the joint ownership in the eye of law, followed up by actual physical division. We make it clear that in the present case, we are not concerned with the concept of a bare unequivocal expression of an intention to separate to bring about division in status in a joint Hindu family. It is not unusual for parties holding properties jointly or in common to have separate enjoyment of portions for the sake of sheer convenience. But such separate enjoyment of convenience cannot be equated to partition in the eye of law and in fact, so as to say that the joint ownership has been put an end to and in its place ownership in severalty or in specie has come into existence. Separate enjoyment for the sake of convenience is one thing and partition in the eye of law is another. The latter carried with it the legal incidents of mutating the joint ownership. The latter has to pass through and satisfy a more rigorous test in law and on facts.

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

9. Keeping in mind the above principle, when we examine the present case, we are not able to subscribe our support to the case of the defendants that there was in fact a partition or a division of the common properties as between the parties in the eye of law. The features which Mr.T.S.Subramanian, learned counsel for the defendants, brings to our notice are not adequate in law to support the theory of 'partition'. Learned counsel would state that the parties are admittedly in possession of different portions; the plaintiff in possession of the southern portion and the defendants in possession of the northern portion. Learned counsel further states that the defendants have deepened the well in their portion and have put up a motor pump set and there is also an underground pipe line in their portion, which exclusively serves the requirements of the defendants and this is the finding of fact rendered by the Court below. Learned counsel would also urge that on the basis of certificate of ownership, the parties, both the plaintiff and the defendants, have obtained loans for the purpose of deepening the wells in the portions in their enjoyment. In our view, these features are not unusual even in the case of common ownership in the eye of law along with separate enjoyment of specified portions for the sake of convenience. They could be in consonance with the admitted enjoyment of separate portions by the parties, explained by the plaintiff as one for the sake of convenience. We could not spell out that the joint ownership as such was put an end to and in its place the ownership in severalty and in specie came into existence. The title of the defendants to the undivided share in the suit properties is derived under several deeds of sale. In all these documents what the defendants acquired is described as only an undivided share. If in fact, there was a division and consequently a separate ownership long prior to these alienations, as claimed by the defendants, the parties would not have omitted to make a specific reference to the same. Such a recital which is not only a natural one but also an absolutely necessary one, is conspicuously absent in all the title deeds under which the defendants claim right to the suit properties. Admittedly, there was no mutation and no separate payment of kist. None of the documents relied on by the defendants reflects or speaks about division at all."

44. As such, the cited decision is in support of the contention of the plaintiff that there was no oral partition

and my above discussion relating to the documents and evidence relied on by the defendants would also evince that the parties, for the sake of convenience, have been enjoying different portions of the joint family properties and by that alone the Court cannot jump to the conclusion that there had been oral partition.

45. The learned counsel for the plaintiff also would cite the decision of the Division Bench of the Andhra

Pradesh reported in 1982 ANDHRA PRADESH 270- PURNA BAI AND OTHERS V. RANCHHODDAS AND OTHERS, certain excerpts from it would run thus:

"26. It is next contended by Mr.H.S.Gururaja Rao that Ex.B-14 is a letter written by Gopinath on 6.6.66 stating therein that he had distributed the amounts as stated in the Will. In that it is shown that Dwaraka Das was paid Rs.15,000/-. Gopinath is not examined to prove this payment or Ex.B-14. Except D.W.1, no one else is examined to prove Ex.B-14. In the cross-examination of P.W.2 it is suggested that Dwaraka Das was paid Rs.25,000/- in pursuance of the Will. The suggestion, thus, is not in accordance with the contents of Ex.B-14. Ex.B-14 is dated 6.6.66 i.e., after the death of Dwaraka Das. Further, Ex.B-14 was not put to P.W.1 or P.W.2 during their cross-examination. Therefore, there is any amount of doubt as regards the contents of this Ex.B-14. Further, it is to be noted that it is in the evidence of P.Ws.1 and 2 that D-1 used to pay them Rs.1,500/- per month for their maintenance after the death of Dwaraka Das. There were also occasions when D-2 and D-6 paid to the plaintiffs. They stopped payment only some time earlier to the filing of the suit. As held supra, the evidence of D.W.1 is not trustworthy as regards the fact that there was a partition or settlement in 1942 or 1957. It is very difficult to believe his evidence even in respect of this aspect of the case also. No doubt, he denied having made payments at the rate of Rs.1,500/- to the plaintiffs. But having regard to the circumstances and other evidence adduced, it seems to be true as deposed to by P.Ws.1 and 2 that they were being paid by the defendants at the rate of Rs.1,500/- per month for their maintenance. This fact, further, supports the case of the plaintiffs that the family was a joint family and the properties were joint. For all these reasons we hold that there was no division or settlement of the family properties as alleged by the defendants and that the family continues to be joint. It is a fact that P.Ws.1 and 2, both, deposed that the families of the plaintiffs and D-1, D-6 and other defendants are living separately since 20 to 25 years. Merely because the

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

families are living separately the nature of the joint family property will not be changed unless there is partition, division or settlement. Therefore, the properties continue to be joint family properties only.

27. The third point to be considered is, whether the suit is barred by limitation. In the plaint it is alleged that the plaint schedule properties are joint family properties and when the plaintiff demanded for partition the defendants refused it. The plaintiffs served the suit notice, Ex.A-15 dated 14.1.1976 and the defendants issued a reply, Ex.A-16 denying that the properties are joint family properties. Therefore the suit was filed. In the written statement filed by D-1, D-2, D-3, D-5 and D-10 in paragraph 6 it is stated that the business was carried on independently even long before 1943, late Dwarakadas at Secunderabad and D-1, Motilal, at Gulzara House as partners of the shop. Thus, according to the written statement the business was so carried on independently by the sons even during the lifetime of Purandas. In view of this, it is pleaded, the suit for partition is wholly untenable and time barred. Except this allegation that the suit is time-barred, there is no specific plea in the written statement that Dwaraka Das was excluded from enjoyment of the joint family properties to the knowledge of Dwaraka Das and his sons. Since there is no plea of exclusion, there is also no issue and consequently no evidence or finding. It is a settle principle of law that when there is no plea, there will be no issue and therefore there cannot be any finding. What amounts to exclusion is a question depending upon the particular facts of each case. The exclusion must be to the knowledge of the person excluded and there should be sufficient (material) to prove the said exclusion. Merely because the members of the joint family are living separately with the consent of each other and managing the joint business, it cannot be said that there is exclusion. For this proposition of law, it is relevant to refer to the decision of the Privy Council in Radhoba v. Aburao, AIR 1929 PC 231. The Privy Council held: "There is no definition of the word "exclusion", in the Limitation Act and the question whether a person has been excluded from joint family must depend upon the facts of the particular case. An intention to exclude is an essential element. It is necessary, therefore, for the Court to be satisfied that there was an intention on the part of those in control and possession of the joint family property to exclude the person and that exclusion was to his knowledge." In so far as the question of limitation is concerned, it is raised for the first time in this appeal. Since it is not raised before the trial Court, the learned counsel for the plaintiffs contended that in view of the decision of the Privy Council in Virayya v. Adenna, AIR 1930 PC 18, the same cannot be entertained in this appeal. The Privy Council laid down that although the plea of limitation may have been mentioned in the written statement and also in the grounds of appeal, if no issue is directed to bear upon the question before the trial Judge and the point has not been taken at the Bar during the trial, it cannot be allowed in appeal. The learned counsel further submitted that the question of limitation is a mixed one of law and fact and that unless there is an issue and evidence, the same cannot be considered in appeal. In the present case, though there was a plea in the written statement no issue is framed and no evidence was let in and no finding is given by the trial Court. On the other hand, the learned counsel Sri H.S.Gururaja Rao, contended that the plea of limitation is a pure question of law and therefore even though it is not raised before the trial Court it can be raised at the appellate stage. For this proposition of law, the learned counsel sought to place reliance upon a decision of the Federal Court in Ratneshwari Nandan v. Bhagwati Saran, AIR 1950 FC 142 and also of this High Court in Sambhasiva Rao v. Kanakamma, AIR 1960 Andhra Pradesh 213. He further contained that the documentary evidence i.e., the partnership deeds between the defendants and their sons, the income-tax assessment orders and the certificates issued by the Income-tax Authorities show that since 1959 onwards the defendants are doing business exclusively and therefore the suit filed in the year 1976 is barred by limitation as per Art.110 of the Limitation Act. First of all, there was no issue, evidence or finding on this point. We have also held that once there is a joint family and the properties are joint family properties managed by some members of the joint family, the said properties will not seize to be joint family properties merely because the other members have not managed the said properties, unless it is proved that the other members to their knowledge have been excluded from the joint family. As held by us, the properties are still joint family properties as the alleged settlement or partition pleaded was held to be false. The evidence of D.W.1 on this point was held to be not believable. The case of the plaintiffs is that though the two shops are there one at Gulzara House and the other in Secunderabad managed by the defendants and Dwaraka Das, the entire profits were enjoyed by all the members jointly and this is even spoken to by D.W.1 in the cross-examination that earlier to the division they were all enjoying the fruits jointly. We have held that there is no settlement either in 1942 or 1957. Therefore,

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

the joint family properties continues to be joint. Even the evidence of P.Ws.1 and 2 is that the defendants used to pay Rs.1,500/- per month for their maintenance from the income of Gulzara House Shop. All these facts show that there was no exclusion of Dwaraka Das from enjoyment of the joint family properties. Even otherwise once the property is the joint family property, unless there is exclusion of one member to his knowledge from the joint family for over a period of twelve years, it cannot be said that the said member has ceased to have any right in the joint family properties. Mr.Mohan Rao, the learned counsel for the 4th respondent submitting that P.W.1 herself hash in evidence deposed that they were living separately since 30 years, that the house in which she is living is in her name having been purchased some 30 to 35 years back, that Motilal has got a separate business in a separate shop, that since 1957 the business was carried on in partnership, while P.W.2 also admitted that himself, the 2nd plaintiff as well their mother was carrying on business in the shop at Sultan Bazar in a partnership till the end of 1972, sought to contend that these admissions and portions in their evidence indicate that they were not only living separately since more than two decades but the businesses were run on partnership basis to the exclusion of others and, therefore, the suit brought in after twelve long years is barred by limitation. All these contentions have been in fact adverted to earlier and held that simple separate living is no indication to conclude either exclusion or division and that the plaintiffs were even paid at the rate of Rs.1,500/- per month for their maintenance from out of the earnings of the shop at Gulzara House by the defendants. Further at the time of death of Dwaraka Das, the 3rd plaintiff was a minor in 1966 and he attained majority only thereafter. As held by the Madras High Court in Marudanayagam v. Sola Pillai, AIR 1965 Mad 200, a suit filed by the minor after attained majority within twelve years thereof (i.e. From the date of attaining majority) is within the period of limitation. For all these reasons we hold that the suit is not barred by limitation and that there is no exclusion of the plaintiffs also as contended."

46. The said decision would highlight the law point that merely because coparceners live separately, there is

no presumption that there was division of status relating to coparcenary properties. There is also one another dictum found set out in the said precedent that simply because some members managed some properties there could be any presumption that there had been division in status.

47. The learned Senior counsel for the defendants would draw the attention of this Court to paragraph 7 of the

plaint and advance his argument that the very conduct of first plaintiff in receiving the compensation amount relating to the land acquired by the Government would speak volumes that he admitted the oral partition. Per contra, the learned counsel for the first plaintiff would place reliance on the first plaintiff's stand in his pre-suit notice itself and submit that the first plaintiff being the kartha of the joint family, after the death of his father Periyapalaniappa Chettiar, received the said compensation amount and that he expressed his desire to share that amount with the other co-sharers and that even now the first plaintiff is ready and willing to share the compensation amount with other co-sharers.

48. No doubt, the first plaintiff could have very well already shared that compensation amount along with the

other co-sharers, but he did not do so. The Core question arises as to whether such receipt of compensation amount itself would amount to accepting the oral partition. It is a common or garden principle in Hindu Law that in a co-parcenary, after of the death of the father, the eldest male member would be deemed to be the kartha and in such a case, the factum of the first plaintiff qua kartha having received the compensation amount would not constitute an estoppel against him from contending that there was no oral partition. In fact, in paragraph 7 of the plaint, the first plaintiff himself would admit that he is the kartha of the family after the death of Periyapalaniappa Chetty.

49. It is therefore clear that even though certain items of properties were under the enjoyment of some of the

co-sharers, it could only be taken that they were enjoying so for convenience sake and not after division of status in the coparcenary family and accordingly, point No.(ii) is decided to the effect that there was no oral partition among the co-sharers and that they have been enjoying the various items of properties for their own convenience.

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

50. Point No.(iii): In view of the finding above that there had been no oral partition as contended by the

defendants, as a sequale the aforesaid admitted joint family properties should be partitioned among the shares concluded.

51. The pertinent question arises as to whether items 5 & 6 of the agricultural lands referred to in the suit

property, claimed to have been purchased by D1 and D2, as per Ex.A7, and the two houses admittedly purchased by the first plaintiff, but not shown in the schedule of the plaint, should be treated as joint family properties or not?

52. Indubitably,the items 1 to 4 - agricultural properties, as found set out in the schedule of the plaint, have

been in possession and enjoyment of defendants 1 and 2 as on the date of emergence of Ex.A7-the sale deed, dated 21.6.1968, relating to purchase of the said items 5 and 6. As such it is crystal clear that defendants 1 and 2 had income from the joint family nucleus and out of that they purchased those items. The learned Senior counsel for the defendants would contend that there is no evidence on record to demonstrate and exemplify that D1 and D2 purchased those properties only from out of the income derived from the joint family nucleus. At this juncture my mind is redolent with the following decisions:- (i) AIR 1954 SC 379 (Srinivas Krishnarao Kango vs. Narayan Devji Kango and others). An excerpt from it would run thus:

"8. 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.

10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on

him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. Where the finding of the Courts is that the income from the ancestral lands was not sufficient even for the maintenance of the members, and the houses in dispute are substantial, burden is on the plaintiff who alleges the houses to have been acquired out of joint family funds, to establish it.

Held that if the contention that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds,that burden had been discharged.

Likewise, it was held that since the ancestral Watan lands are intact, and were available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family, whether it were held that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result was the same."

53. The aforesaid precedent would unambiguously spot light and make apparent and pellucid the point that in

order to prove that the property is the joint family property, there should be evidence to indicate that there was joint family nucleus and income was arising out of it so as to enable the joint family to purchase such additional properties and that the burden of proof is on the person, who pleads that even though the property might stand in the name of one of the co-sharers, nonetheless, it belongs to the joint family. Undoubtedly, this

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

case should necessarily be analysed in the light of the dictum set out in the cited decision. (ii) AIR 1960 SC 335 (Rukhmabai vs. Lala Laxminarayan and others) and an excerpt from it would run thus:

"5. There is a presumption in Hindu law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called division in 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 the 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 primafacie 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 movable 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."

54. A perusal of the said judgement would highlight that there is no presumption that any property whether

immovable or movable property held by the member of the joint Hindu family is a joint family property and the burden is on the person, who pleads that the property is the joint family property, to prove it. The same decision highlights one other important proposition of Hindu law that there is a presumption under the Hindu law that the family is a joint one. (iii) MLJ (II) 1976 225 ((Pattusami Padayachi vs. Mullaiammal and others:

"18. The properties purchased by one or other of the members of a co-parcenery or joint family when the family is joint cannot as a matter of course be treated as joint family property. The co-parcener 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 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 made strict in the case of properties in the name of female members. 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, inasmuch as the stridhanam property of a female and possession of property by her have been recognised from ancient times." (iv) MLJ (1) 1978 56 (Ranganayaki Ammal and others vs. S.R.Srinivasan and others).

(v) AIR 1959 SUPREME COURT 906 - MALLAPPA GIRIMALLAPA BETGERI AND OTHERS VS. R.YELLAPPAGOUDA PATIL AND OTHERS;

(vi) AIR 1954 SC 379 - SHRINIVAS KRISHNARAO KANGO VS. NARAYAN DEVJI KANGO AND OTHERS.

55. The aforesaid decisions would unambiguously highlight that the burden of proof is on the party, who

pleads that the property purchased by one of the co-sharers is the joint family property. It is also pertinent to note that once it is established that the co-sharer purchased certain properties in his own name at a time when he was in receipt of income from the joint family nucleus, then the burden of proof would get shifted on him to prove that he acquired those properties from out of his own earnings. So far this case is concerned, it is the admitted case of both sides that they all belonged to agricultural family and they derived income only by doing agricultural operation. In fact, D.W.1(D2) in his deposition candidly and categorically deposed that he

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

had no other avocation or job except agricultural operation. In such a case, it is crystal clear that items 5 and 6 were purchased from out of the income derived from the joint family nucleus. Had really defendants 1 and 2 got separate income, other than the income derived only from the joint family nucleus, then they should have adduced evidence aliunde to prove that they purchased those properties from out of such separate income; however there is no modicum of evidence in that regard. Hence, I am of the considered opinion that items 5 and 6 of the agricultural properties, described in the schedule of the plaint, would constitute part and parcel of the coparcenary property.

56. The learned Senior counsel for the defendants would submit that the two houses purchased by the first

plaintiff as admitted by him should be treated as co-parcenery property and in fact, he ought to have showed those items also in the schedule of the plaint along with the three houses, which had already been shown in the plaint schedule as the co-parcenery properties, but he had not done so and consequently, the suit itself is bad for partial partition. The learned counsel for the plaintiff would contend that the evidence on record would demonstrate that the first plaintiff purchased two houses from out of the income derived from his wife's agricultural properties and not from out of the income derived from the joint family nucleus. The fact remains that admittedly, the plaintiff, as per his own version, was in possession and enjoyment of an extent of 3 acres and 2 cents in Survey No.344/1 as kartha of the joint family and which was subsequently acquired by the Government and compensation was paid to him. Readily it is not known about the description of those two houses as well as the date of those purchases. Instead of furnishing all the relevant facts pertaining to the purchase of the of two houses with description, in accordance with Section 106 of the Indian Evidence Act, the first plaintiff, he simply relies upon the written statement filed by the defendants and contends that those houses were purchased by the first plaintiff, soon after the alleged oral partition during the year 1962/63. Such an argument cannot be countenanced and upheld as tenable under the law. The pertinent questions arise thus:

What is the stand of first plaintiff? Is there any straight answer to it by him?

Absolutely, there is no clarification or answer to those questions. No doubt, in the written statement in paragraph 7, it is stated thus:

"7. The plaintiff No.1 after taking his share, purchased a separate 2 sets of house property in his name and he is residing in the said house right from the date of purchase immediately after partition. Cleverly he has omitted to include those items in the suit property. Similarly, these defendants have purchased 2.34 acres of agricultural land in SF.No.221 and 222/2 as per Sale Deed dated 21.6.1968."

57. The unassailable fact is that the first plaintiff purchased two houses. But he has not adduced precisely

evidence relating to them or furnished particulars about them. But he would develop his contention that the defendants themselves contended that the two houses were purchased soon after the alleged oral partition. The law and the logic, including the case laws applied as against D1 and D2 so as to treat the said items 5 and 6 of the suit properties as part and parcel of the co-parcenary properties shall also be applicable as against the first plaintiff so as to treat the said two houses purchased by him as the ones acquired by him from out of the income derived by him from the joint family nucleus.

58. The contention of the first plaintiff is that from out of the income derived from his wife's property, he

purchased those two houses in his name. At this juncture, I would like to recollect the well known proposition that preponderance of probabilities would govern the adjudication in civil cases. Normally, if an undivided coparcener wants to purchase a property, he would normally purchase in the name of his wife or his other close relatives, so as to keep the property away from the reach of other coparceners. But, in this case, it is the specific contention of the first plaintiff that from out of the income derived from his wife's property, those two houses were purchased not in the name of his wife but in his own name.

59. The learned counsel for the first plaintiff would place reliance on the answer given by D.W.1(D2) to the

effect that the first plaintiff's wife was having properties, which were looked after by the first plaintiff. Simply because, D.W.1 admitted that the first plaintiff was looking after his wife's property, there is no presumption

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

that D1 and D2 admitted that the first plaintiff purchased those two houses from out of the income derived from his wife's property. On the side of the plaintiff, apart from the plaintiff, no one was examined. As such, the deposition of P.W.1 remains only his ipse dixit and constitutes his self-serving version, which cannot be relied on to hold that those two houses purchased by him were from out of his wife's income.

60. The plaintiff came forward with the specific case that he, being the eldest male member, after the death of

his father, because the kartha of the co-parcenery family and it is therefore, as sequela could be understood that during the life time of his father Periyapalaniappa Chetty, he was his eldest son and that he acquired those two houses while he was admittedly enjoying the joint family nucleus. In such a case, the presumption as applied as against D1 and D2 should also be applied as against the first plaintiff and it has to be held that those two houses purchased by the first plaintiff should be treated as co-parcenary properties. No more elaboration is required to hold that those two houses should necessarily be treated as part and parcel of the co-parcenary properties.

61. At this juncture, the learned counsel for the defendants would contend that as of now there are no

particulars about those two houses and that it would be difficult for partition of those houses also and on that ground itself the suit has to be dismissed as one bad for partial partition. Even though, the description and details about the two houses are not readily available , nonetheless during the final decree proceedings, the plaintiff is bound to furnish those particulars. It is a trite proposition that at the final decree stage, description and inclusion of properties are possible. But only requirement is that during the preliminary decree proceedings itself, the controversy concerning title relating to those items should have been settled. Even items which have been left out due to over sight could be added during the final decree proceedings.

62. Simply because the plaintiff did not come forward to include the sum of Rs.17,365/-, which he received

from the Government as compensation, in the suit property, and that he, as per his own stand, was exclusive owner of the two houses and that he did not include them in the suit properties, the suit cannot be held to be bad for partial partition. Merely, because the plaintiff owing to some motive or as per his own stand did not include certain items in the suit property, it would not lead to the conclusion that the suit is bad for partial partition. There are instances where the parties would deliberately leave certain items of properties, without any valid reasons for getting it divided at once, but to get them divided at a later date at their own whims and fancies and in such a case, the Court could hold that the suit is bad for partial partition. Even in such cases, the Courts have got the power to direct that the left out items also should be included in the partition, once there are evidence available on record that those items are co-parcenary properties. In fact, both sides relied on Mulla's Hindu Law on this Aspect. I would like to extract a passage from the famous Mulla Hindu Law (19th Edition) "327. PARTIAL PARTITION:

(1) A partition between coparceners may be partial either in respect of the property or in respect of the persons making it.

After a partition is affected, if some of the properties are treated as common properties, it cannot be held that such properties continued to be joint properties, since there was a division of title, but such properties were not actually divided.

(2) Partial as to property.- It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint and undivided family. However, where there is evidence to show that the parties intended to sever, then the joint family status is put to an end, and with regard to any portion of the property which status is put to an end, and with regard to any portion of the property which remained undivided the presumption would be that the members of the family would hold it as tenants-in-common, unless and until a special agreement to hold as joint tenants is proved. When a partition is admitted or proved, the presumption is that all the property was divided and a person alleging that family property, in the exclusive possession of one of the members after the partition, is joint and is liable to be partitioned, has to prove his case."

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

.

.

.

.

.

.

.

Whether a suit for partition should comprise all the joint family properties, in other words, whether the suit should be one for general partition, or whether it can be one for a partial partition only depends upon who the parties to the suit are:

(i) The general rule is that where a suit for partition is brought by a coparcener against the other coparceners, it should embrace the whole family property. This rule is subject to certain qualifications. Thus, where a portion of the property is not available for actual partition, as being in the possession of a mortgagee, or where it is held jointly by the family with a stranger, a separate suit for partition may be brought in respect of that portion in the courth of the place where that portion is situated. (ii) The next case is where a coparcener sells his undivided interest in one of several properties belonging to the coparcenary, and a suit for partition is brought by the purchaser of such interest against his vendor and the other coparceners. In this case, there is a conflict of decisions as to whether he can sue for partition of that property alone in which he is interested as a purchaser, or whether he should sue for general partition of all the family properties. This subject is dealt with in 261(3). (iii) The third case is where a coparcener sells his undivided interest in one of several properties belonging to the coparcenary, and a suit for partition is brought by the other coparceners against the purchaser. As to the rights of the other coparceners in such a case, see 261(3).

(iv) The last case may be put in the form of an illustratin. A and B are members of a joint family property consists of three houses, X, Y and Z. A sells his interest in house X to C. B sells his interest in the same house to D. In such a case, D can sue C for partition of house X, without asking for a partition of houses Y and Z. A and B, no doubt, must be joined as defendants; but the real contest in this case is between strangers to the family, namely, C and D, and there is no reason why such contest should not be determined without reference to the remaining property of the family."

63. It is therefore clear from the above excerpts that the view taken by me that those two houses and the

compensation amount even though not included in the suit properties, the same could be ordered to be included during the final decree proceedings for effective partition. Accordingly, point No.(iii) is decided that the suit is not bad for partial partition.

64. Point No.(iv): The relationship among the parties is an admitted one, over which, there is no controversy.

Periya Palaniappa Chetty, had three sons, namely, the first plaintiff-P.Balasubramaniam, D1-P.Arumugham, D2-P.Chidambaram, and two daughters, namely, D3-Palaniammal and D4-Vanchiammal and his wife Palaniammal, plaintiff No.2. The deceased Peria Palaniappa Chetty and his three sons being Hindus, constituted the co-parcenary and accordingly, each were entitled to 1/4th share. Consequent upon the death of Peria Palaniappa Chetty on 16.4.1974, his 1/4th share in the co-parcenary is deemed to have devolved on his legal heirs, namely, his wife(P2), and his sons and daughters(P1, D1 to D4) respectively. As such, it amounts to P1, D1 and D2(the sons) are entitled to 7/24th share each and P2, D3 and D4(wife and daughters) are entitled to 1/24th share each.

65. The trial Court did not choose to incorporate in the decree the compensation amount received by the first

plaintiff for being divided according to their respective shares of the parties. Even though the trial Court adverted to the evidence concerned, it has failed to consider the importance of including in the partition the two houses purchased by the first plaintiff from out of the income derived from the joint family nucleus. As such, the judgement and decree of the trail Court requires modification. Accordingly point No.(iv) is decided.

66. Point No.(v): The learned Senior counsel for the fist plaintiff would contend that D5, despite notice having

been issued to him, did choose to purchase a portion of the suit property and that he does not deserve any equity. Whereas the learned counsel for D5 (consequent upon D5's death R5 to R10-the legal representatives

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

were impleaded) would contend that D5 was a bona fide purchaser for value and that he was not in receipt of notice earlier to the purchase of the suit property.

67. I am of the considered opinion that this Court need not probe into the fact as to whether D5 was the bona

fide purchaser for value without notice or not, as it is not a case where D5 purchased the property covered by any agreement to sell and only in such or similar circumstances, the question as to whether D5 was a bona fide purchaser or not, would gain prominence. It has become a common or garden principle that the purchaser of the undivided share of the sharers could work out his remedy during final decree proceedings and the equity before the Court concerned could be pleaded and got adjudicated. Accordingly, point No.(v) is decided.

68. In the result, the judgement and decree of the trial Court is modified as under:-

"(a) In the suit properties, the sum of Rs.17,365/-(Rupees seventeen thousand three hundred and sixty five only) received by the first plaintiff shall be added as a one among the co-parcenary properties. The two houses admittedly purchased by the first plaintiff, the details of which, the first plaintiff is bound to furnish to the Court during the final decree proceedings, shall also be part of the coparcenary properties for being partitioned, as per the judgement and decree of this Court. All the suit properties already referred to in the schedule of properties in the plaint shall also be the coparcenary properties for being partitioned, as per this judgement and decree. (b) The first plaintiff(P1), first defendant(D1) and second defendant(D2) are entitled to 7/24th share each in all the aforesaid items of co-parcenary properties. The second plaintiff (P2), third defendant(D3) and the fourth defendant (D4) are entitled to 1/24th share each in all those properties. The first plaintiff is bound to pay 6% interest on the share of the other sharers in the sum of Rs.17,365/- (Rupees seventeen thousand three hundred and sixty five only) from the date of suit till the deposits are made before the lower Court. On such deposits, the respective sharers are permitted to withdraw the same without waiting for finalisation of the final decree proceedings. It is made clear that R5 to R10-the legal representatives of D5, are deemed to have stepped into the shoes of the vendor of D5, corresponding to the shares allotted to them as per this judgement and decree. (c) The parties are at liberty to file necessary application for getting assessed the future income from the date of the suit till their respective portions are divided and allotted. However, I make it clear that during the final decree proceedings, the parties are at liberty to adduce evidence relating the income derived from the suit properties, as well as to the fact as to who should pay in favour of whom the mesne profits. The parties are directed to bear their own respective costs throughout. This appeal is ordered accordingly. No costs.

Msk 8.8.2008

Index : Yes

Internet: Yes

To

II Additional Subordinate Judge, Coimbatore

G.RAJASURIA,J.,

msk

Pre-delivery judgment in

A.S.No.981 of 1993

8.8.2008