P.Arumugham v. P.Balasubramaniam

5. The trial Court framed the relevant issues. During thetrial, on the side of the plaintiffs one Balasubramaniam wasexamined as P.W.1 and Ex.A1 to A13 were marked. On behalf of thedefendants, the second defendant-Chinnappan was examined as D.W.1,and fourth defendant Vanjiammal was examined as D.W.2, and 15documents were marked as Ex.B1 to Ex.B15. Ultimately, the trialCourt decreed the suit and passed the preliminary decree allottingan extent of 7/24th share in favour of P1 and 1/24th share infavour of P2; granting liberty to the plaintiffs to initiateseparate action to claim mesne profits. 6. Being aggrieved by and dissatisfied with the judgement anddecree of the trial Court, D1 and D2 have preferred this appeal onthe following grounds, the pith and marrow of them would run thus:(1) the trial Court erred in holding that the suitproperties are the joint family properties, ignoringthe oral partition, which was effected during the year1963;(2) the trial Court should not have decreed the suitignoring the plea of limitation;(3) the admission made by the first plaintiff in hisdeposition was not considered by the trial Court;(4) the factum of the first plaintiff having receivedthe entire compensation amount from the Government inrespect of the land acquired by the Government, whichwas earlier allotted to the plaintiffs in the oralpartition, was not considered by the trial Court;(5) the trial Court failed to hold that the land inSurvey Nos.222/2, 221/2 are the self-acquiredproperties of D1 and D2 as per Ex.A7.(6) the first plaintiff purchased two houses in hisname and it was not his case that he purchased themfrom out of the income from his wife's properties andthese facts have not been considered by the trialCourt;(7) the lower Court had given undue weightage to Ex.B8and Ex.B9 notices sent by the Survey Department duringthe year 1976;(8) Without any basis, Ex.B1 to Ex.B15 and thedeposition of D.W.1 were discarded by the trial Court. https://hcservices.ecourts.gov.in/hcservices/ (9) the recitals in Ex.A8-the partition deed, whichemerged between D1 and D2 were wrongly considered bythe 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 plaintiffand the two houses purchased by him should also betreated as joint family property, for partition.Accordingly, they prayed for setting aside of the judgement anddecree of the trial Court.7. The learned counsel for the contestingrespondents/defendants would raise the plea of res-judicata bypresenting the memo of the first respondent to the effect that thecommon judgement and decree dated 18.8.1993 was relating toO.S.No.509 of 1985, on the file the Court of II Additional Sub-Judge, Coimbatore, which was filed by the plaintiffs seekingpartition and O.S.No.337 of 1988, which was filed by the firstplaintiff in O.S.No.509 of 1985 for injunction; the present appealis focussed as against the portion of the common judgement anddecree relating to O.S.No.509 of 1985, at the instance of defendants1 and 2 therein; whereas, the same defendants herein filed appealA.S.No.154/94 before the I Additional District Judge cum ChiefJudicial Magistrate, Coimbatore, as against the portion of the saidcommon judgement and decree relating to O.S.No.337 of 1988, and thesaid appeal was dismissed for default on 31.12.1996 itself. Assuch, the said judgement and decree dated 31.12.1996 passed inA.S.No.154/94 would operate as res-judicata for the appellantsherein to prosecute this appeal. 8. Whereas, the learned counsel for the appellants wouldcontend that the dismissal of A.S.No.154/94 by the District Courtfor default would in no way hamper the appellants herein to arguethe appeal before this Court, as the said appeal, which wasdismissed, was relating to O.S.No.337 of 1988, which was one forseeking bare injunction, and it was not a title suit. Both sidesultimately agreed that the objection based on res-judicata alsocould be decided along with the adjudication in the appeal. As suchthe following points emerged for consideration:(i) Whether this appeal is barred by res-judicata in view ofthe judgement and decree dated 31.12.1996 in A.S.No.154/94?(ii) Whether there was any oral partition among the familymembers during the year 1963 and shares allotted thereunder ascontended by defendants 1 and 2? https://hcservices.ecourts.gov.in/hcservices/ (iii) Whether the suit is bad for partial partition?(iii) Whether the compensation amount received by the firstplaintiff from the Government in respect of the land acquisitionproceedings should also be subjected to partition along with the twohouses purchased by him? and Whether the suit is bad for partialpartition?(iv) What shall be the shares of the respective co-sharers?(v) What are the rights of D5 in having purchased certain itemsof the suit property from D1 and D2?(vi) Whether there is any infirmity in the judgement and decreeof the trial Court?Point No.(i): The learned Senior counsel for the firstrespondent/plaintiff placing reliance on various precedents woulddevelop his argument that if by way of a common judgement two suitsare decided, out of which, two appeals are filed, then the disposalof one appeal would have impact on the adjudication of the otherpending appeal. It is also his contention that the dismissal of theearlier appeal A.S.No.154/94(O.S.No.337 of 1988) by the FirstAdditional-cum-Chief Judicial Magistrate, Coimbatore, for de-fault,would operate as res-judicata.9. Whereas, the learned counsel for the appellants/D1 and D2would submit that absolutely there is no scope for ushering in theprinciple of res-judicata in the facts and circumstances of thisappeal, 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 appealas against the decreeing of the suit O.S.No.337 of 1988, which wasfiled for bare injunction. 10. At this juncture, it is just and necessary to refer to thefollowing decisions cited by the learned counsel for the plaintiffas under:-82 L.W.425-KARTHIAN KONE, CO-TRUSTEE OF AYAN PAPAKUDI CHOULTRYCHARITY V. BAGHYATHAMMAL CO-TRUSTEE OF AYAN PAPAKUDI CHOULTRYCHARITY - an excerpt from it would run thus:-". . . . . . . . . . In Rajlakshmi Desi v.Banamali Sen (3) their Lordships point out that thetest of res judicata is the identity of title in thetwo litigations and that so long as the competency ofthe former court to try the subsequent suit cannot bedenied, the general rule of res judicata applies. Evenapart from this, the defendant Kartik Kone against whomthe point was decided in the second appeal, sought to https://hcservices.ecourts.gov.in/hcservices/ have judgment of the Court reviewed. Undoubtedly,Kartik Kone could have appealed against the decision,for otherwise it is difficult to see how a reviewapplication could at all have been maintained. Thelearned Judge in dealing with the review applicationpointed out that though the question was raised fo thefirst time in the second appeal, at the time of thehearing as objection was raised, and, as we saidearlier, both sides argued the question, before thelearned Judge rendered his decision in the secondappeal. We may further point out that far from theobservations of the learned Judge being in the natureof an obiter dicta, the actual decision on this pointwas incorporated in the decree in the second appeal,the clause of the decree reading thus:"That the first defendant (Bhagyathammal) shall also beentitled to joint management along with the plaintiff(Kartik Kone) of the trust properties and the firstdefendant shall be at liberty to take appropriate stepsto work out her rights to joint management by way ofseparate proceedings..."There is accordingly a decree embodying the decision ofthe Court and it seems to us that it can no longer bemaintained that the observations are merely obiterdicta having no executable force. It is not open toKartik Kone to question the decree unless he can say itis nullity which it obviously is not. In Kolu Nambiarv. Chathu Nambiar (4), this Court held that a mattercould be in issue under S.11 of the Civil ProcedureCode even though an express issue had not been framed.It would be in issue if the decision about it isnecessary for the decree. They say further that if thefinding has been arrived on a matter which is notnecessary for the disposal of the suit and it is notmade the basis of the decree which is given in spite ofit, that matter cannot be said to have beensubstantially in issue between the parties and suchfinding would be more in the nature of obiter dicta.It follows that where the finding was incorporated in adecree, the position would clearly be otherwise. Thishas been emphasised in Sankara Mahalinga Chettiar v.Muthulakshmi (5), where it was held that though afinding might be unnecessary, yet if it is embodied inthe decree, it will operate as res judicata."11. The perusal of it would at once make the point clear thatthe aforesaid decision is not enuring to the benefit of the https://hcservices.ecourts.gov.in/hcservices/ plaintiff and it is quite obvious that in the cited decision theirLordships clearly observed that if a decree embodies the decision ofthe Court, it can no longer be contended that the observations aremerely obiter dicta, having no executable force. 12. Here in the judgement dated 31.12.1986, passed inA.S.No.154/94 by the I Additional District Judge-cum-Chief JudicialMagistrate, Coimbatore, absolutely there is no such finding isfound embodied relating to the title of any one over the suitproperty. The said injunction suit itself was an off shootlitigation, which was one for injunction. A bare perusal of thecommon judgement in O.S.No.509 of 1985 and O.S.No.337 of 1988 passedby the Sub Court, Coimbatore on 18.8.1993 would evince and evidencethat only two issues were framed concerning O.S.No.337 of 1988 asunder: (i) Whether the plaintiff is entitled to permanentinjunction as prayed for?;(ii)To what relief the plaintiff is entitled to?13. No common issues in these two suits were framed anddecided. The said injunction suit O.S.No.337 of 1988 was filed byBalasubramaniam-the first respondent/plaintiff herein, even duringthe pendency of O.S.509 of 1985, which was filed by the sameBalasubramaniam and his mother Palaniammal for the substantiverelief of partition and consequential reliefs. Instead of filing aseparate suit, namely, O.S.No.337 of 1988, for injunction, he couldhave very well filed an interlocutory application in the pendingsuit O.S.509/85 and sought for necessary relief. But he has notchosen to do so. In my considered opinion, the second suit, namely,O.S.337 of 1988, strictly speaking, was not at all maintainable andit was against the wholesome public policy that there should not beany multiplicity of proceedings. The relief of injunctionobtained in O.S.No.337 of 1988 in stricto senso, is interim innature as pending adjudication in O.S.No.509 of 1985 only it couldbe operative and the ultimate decision in the partition suit wouldhave direct legal impact on the said injunction. It is thereforecrystal clear that a virtual interim injunction cannot be put forthas one constituting as resjudicata as against the proceedings in theconnected partition suit. 14. The learned counsel for the plaintiff would contend thatthere need not be any specific issue framed and even then the saiddecision would operate as res-judicata.15. I am at a loss to understand as to how the decision in aninjunction suit, where the title to the suit property cannot be goneinto in the judgement to be rendered relating to it, could betreated as resjudicata as against the person, who seeks remedy in adifferent proceedings based on title. The substantial issue is as https://hcservices.ecourts.gov.in/hcservices/ to whether the suit properties are joint family properties or notand whether there was already any oral partition or not and theseissues are found framed in the partition suit O.S.No.509 of 1985and relating to that suit, an d for adjudication of those issuesalone, now the present appeal is pending. In such a case, by nostretch of imagination, it could be taken that the dismissal of thesaid appeal by the District Judge could be taken as one operating asres-judicata as against the appellants in this appeal. 16. The learned counsel for the plaintiff also relied on thedecision of the Honourable Apex Court reported in AIR 1966 SCC1332-SHEODAN SINGH, V. DARYAO KUNWAR, excerpts from it would runthus:-(10a). Re.(i): The judgment of the Additional CivilJudge shows that there were five issues common to allthe four suits, and the main point raised in thesecommon issues was whether Harnam Singh and his adoptedson Ram Kishan were joint with the appellant and hisfather and whether Ram Kishan died in a state ofjointness with them. This main question was decidedagainst the appellant and his father and it was held bythe Additional Civil Judge that Harnam Singh and RamKishan were separate from the appellant and his fatherand that Ram Kishan did not die in a state of jointnesswith them. On this view of the matter, the AdditionalCivil Judge held that the respondent, Smt DaryaoKunwar, succeeded to Ram Kishan on his death and wasentitled to the separated share of Ram Kishan and theappellant and his father had no right to the propertyby survivorship. In the face of the judgment of theAdditional Civil Judge which shows that there were fivecommon issues in all the four suits, the appellantcannot be heard to say that these issues were notdirectly and substantially in issue in Suits Nos. 77and 91 also. Further this contention was not raised inthe High Court and the appellant cannot be permitted toraise it for the first time in this Court. Besides thequestion whether these common issues were directly andsubstantially in issue in Suits Nos. 77 and 91 can onlybe decided after a perusal of the pleadings of theparties. In the paper book as originally printed, theappellant did not include the pleadings. Later he filedcopies of the plaints an application. Even now we havenot got copies of the written statements andreplications, if any of Suits Nos. 77 and 91. In the https://hcservices.ecourts.gov.in/hcservices/ circumstances we must accept from the fact that thejudgment of the Additional Civil Judge shows that thesefive issues were raised in Suits Nos. 77 and 91, thatthey were directly and substantially in issue in thosesuits also and did arise out of the pleadings of theparties. We therefore reject the contention that issuesas to title were not directly and substantially inissue in Suits Nos. 77 and 91.12. Then it is urged that all the four suits wereconsolidated and decided on the same day by the samejudgment and there can therefore be no question thatSuits Nos. 77 and 91 were former suits and thus thedecision as to title in those suits became resjudicata. It is not in dispute that the High Court’sdecision in the appeals arising from Suits Nos. 77 and91 was earlier. Reliance in this connection is placedon the decision of this Court in Nahari v. Shankar.That case however has no application to the facts ofthe present case, because there the suit was only onewhich was followed by two appeals. The appeals wereheard together and disposed of by the same judgmentthough separate decrees were prepared. An appeal wastaken against one of the decrees. In thosecircumstances this Court held that as there was onlyone suit, it was not necessary to file two separateappeals and the fact that one of the appeals was time-barred did not affect the maintainability of the otherappeal and the question of res judicata did not at allarise. In the present case there were different suitsfrom which different appeals had to be filed. The HighCourt’s decision in the two appeals arising from SuitsNos. 77 and 91 was undoubtedly earlier and thereforethe condition that there should have been a decision ina former suit to give rise to res judicata in asubsequent suit was satisfied in the present case. Thecontention that there was no former suit in the presentcase must therefore fail.13. Re.(iv): This brings us to the main point that hasbeen urged in these appeals, namely, that the HighCourt had not heard and finally decided the appealsarising out of Suits Nos. 77 and 91. One of the appealswas dismissed on the ground that it was filed beyondthe period of limitation while the other appeal was https://hcservices.ecourts.gov.in/hcservices/ dismissed on the ground that the appellant therein hadnot taken steps to print the records. It is thereforeurged that the two appeals arising out of Suits Nos. 77and 91 had not been heard and finally decided by theHigh Court, and so the condition that the former suitmust have been heard and finally decided was notsatisfied in the present case. Reliance in thisconnection is placed on the well-settled principle thatin order that a matter may be said to have been heardand finally decided, the decision in the former suitmust have been on the merits. Where, for example, theformer suit was dismissed by the trial court for wantof jurisdiction, or for default of plaintiff’sappearance, or on the ground of non-joinder of partiesor misjoinder of parties or multifariousness, or on theground that the suit was badly framed, or on the groundof a technical mistake, or for failure on the part ofthe plaintiff to produce probate or letters ofadministration or succession certificate when the sameis required by law to entitle the plaintiff to adecree, or for failure to furnish security for costs,or on the ground of improper valuation or for failureto pay additional court fee on a plaint which wasundervalued or for want of cause of action or on theground that it is premature and the dismissal isconfirmed in appeal (if any), the decision not being onthe merits would not be res judicata in a subsequentsuit. But none of these considerations apply in thepresent case, for the Additional Civil Judge decidedall the four suits on the merits and decided the issueas to title on merits against the appellant and hisfather. It is true that the High Court dismissed theappeals arising out of Suits Nos. 77 and 91 either onthe ground that it was barred by limitation or on theground that steps had not been taken for printing therecords. Even so the fact remains that the result ofthe dismissal of the two appeals arising from SuitsNos. 77 and 91 by the High Court on these grounds wasthat the decrees of the Additional Civil Judge whodecided the issue as to title on merits stood confirmedby the order of the High Court. In such a case, eventhough the order of the High Court may itself not beon the merits, the result of the High Court’s decisionis to confirm the decision on the issue of title whichhad been given on the merits by the Additional CivilJudge and thus in effect the High Court confirmed thedecree of the trial court on the merits, whatever may https://hcservices.ecourts.gov.in/hcservices/ be the reason for the dismissal of the appeals arisingfrom Suits Nos. 77 and 91. In these circumstancesthough the order of the High Court itself may not be onthe merits, the decision of the High Court dismissingthe appeals arising out of Suits Nos. 77 and 91 was touphold the decision on the merits as to issue of titleand therefore it must be held that by dismissing theappeals arising out of Suits Nos. 77 and 91 the HighCourt heard and finally decided the matter for itconfirmed the judgment of the trial court on the issueof title arising between the parties and the decisionof the trial court being on the merits the High Court’sdecision confirming that decision must also be deemedto be on the merits. To hold otherwise would make resjudicata impossible in cases where the trial courtdecides the matter on merits but the appeal courtdismisses the appeal on some preliminary ground thusconfirming the decision of the trial court on themerits. It is well settled that where a decree on themerits is appealed from, the decision of the trialcourt loses its character of finality and what was onceres judicata again becomes res sub-judice and it is thedecree of the appeal court which will then be resjudicata. But if the contention of the appellant wereto be accepted and it is held that if the appeal courtdismisses the appeal on any preliminary ground, likelimitation or default in printing, thus confirming totothe trial court’s decision given on merits, the appealcourt’s decree cannot be res judicata, the result wouldbe that even though the decision of the trial courtgiven on the merits is confirmed by the dismissal ofthe appeal on a preliminary ground there can never beres judicata. We cannot therefore accept the contentionthat even though the trial court may have decided thematter on the merits there can be no res judicata ifthe appeal court dismisses the appeal on a preliminaryground without going into the merits, even though theresult of the dismissal of the appeal by the appealcourt is confirmation of the decision of the trialcourt given on the merits. Acceptance of such aproposition will mean that all that the losing partyhas to do to destroy the effect of a decision given bythe trial court on the merits is to file an appeal andlet that appeal be dismissed on some preliminaryground, with the result that the decision given on themerits also becomes useless as between the parties. Weare therefore of opinion that where a decision is given https://hcservices.ecourts.gov.in/hcservices/ on the merits by the trial court and the matter istaken in appeal and the appeal is dismissed on somepreliminary ground, like limitation or default inprinting, it must be held that such dismissal when itconfirms the decision of the trial court on the meritsitself amounts to the appeal being heard and finallydecided on the merits whatever may be the ground fordismissal of the appeal."17. A mere perusal of the above said excerpt, including theentire judgement would at once make the point explicitly clear thatthe cited decision is not applicable to the facts and circumstancesof this case. It is apparent in the cited precedent that as many as5 issues were framed common to all the four suits involved in thatmatter and the main issue raised was whether Harnam Singh and hisadopted son Ram Kishan were joint with the appellant and his fatherand 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 thatthe plea of res-judicata was applicable. But here my abovediscussion supra would clearly indicate that the said injunctionsuit itself was an off shoot litigation, which ought not to havebeen instituted and the trial Court also has not framed any issuesrelating to the joint nature of the suit property and also about thealleged oral partition. In fact, the parties are not the same inboth the suits and it is quite obvious, warranting no furtherelaboration. 19. The learned counsel also cited the following decisionsrelating to the plea of res-judicata:AIR 1973 ALLAHABAD 63 BUDHAN V. LALA HARBANS LAL ANDOTHERS;AIR 1977 SUPRE COURT 1268 – NARAYANA PRABHUVENKATESWARA PRABHU V. NARAYANA PRABHUH KRISHNA PRABHU(DEAD) BY L.RS.;AIR 1962 SUPREME COURT 338 BADRI NARAYA SINGH VS.KAMDEO PRASAD SINGH AND ANOTHER;AIR 1976 SUPREME COUT 1645 – LONANKUTTY V. THOMAN ANDANOTHER;AIR 1937 MADRAS 544 – KRISHNAN NAIR V. KAMBI;AIR 1966 SUPREME COURT 153 – PANDURANG DHONDI CHOUGULEAND OTHERS V. MARUTI HARI JADHAV AND OTHERS; 2001(1) CTC 222 – RENGANAYAKI AND ANOTHER VS.K.R.RENGANATHA MUDALIAR;AIR 1990 NOC 163(ANDHRA PRADESH)- PALA NARAYANAN ANDANOTHER VS. M.VEERA SAMAIAH. 20. In view of the ratiocination adhered to by me, in not https://hcservices.ecourts.gov.in/hcservices/ upholding the plea of res-judicata, the aforesaid precedents alsoare found to be not relevant to this case. Accordingly, this pointNo.(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 asagainst the appellant herein from arguing this appeal on merits.21. Point No.(ii) Indubitably and unassailably by items 1 to 4of the suit properties, which are agricultural lands and an extentof 20 cents of plot area in Survey No.225/1, as described in thesame schedule of property and the three houses referred to therein,are the joint family properties. Even though the suit property, asfound described in the schedule of the plaint is not so clear,nevertheless the learned counsel for the plaintiff would clarify thefactual position by portraying and detailing that the suitproperties could be taken under three segments as found set out inthe plaint; the first segment would comprise of six items ofagricultural properties, totally measuring an extent of 10 acres and8 cents; the second segment is the 20 cents of land in SurveyNo.225/1; and the third segment would refer to the three houses. Theitems 5 and 6 of the agricultural properties referred to supra areclaimed to have been acquired by Arumugha Chettiar (D1) andChidambaram Chettiar (D2) as per Ex.B7-the sale deed dated21.6.1968. 22. The learned counsel for the plaintiff would contend thatthose two items of properties covered under Ex.A7 are also the jointfamily properties, as there had been no partition at all much lessany 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 incomederived from the joint family nucleus, to wit from out of the incomederived from items 1, 2, 3 and 4 of the agricultural lands referredto supra; and those items were admittedly in possession andenjoyment of the defendants and their father PeriyapalaniappaChetty. Accordingly, the learned counsel for the plaintiff wouldpray for partition.23. The learned Senior counsel for the defendants would advancehis argument to the effect that the said Periyapalaniappa Chettiardied only on 16.4.1975. Even during his life time, there was only afamily arrangement/understanding for convenient enjoyment of theproperty and accordingly, the plaintiff was in possession of tbheSurvey No.344/1 measuring an extent of 3 acres and 2 cents, which isnot one among the suit properties herein, but it was subsequentlyacquired by the Government and the compensation of Rs.17,365/- paidto the R1/plaintiff herein, being the eldest son of PeriyapalaniappaChetty, being the kartha of the family, after the death of the saidPeriyapalaniappa Chetty. Even though the said sum of money was notreferred to in the schedule of the plaint for being partitioned, https://hcservices.ecourts.gov.in/hcservices/ nonetheless the first respondent/plaintiff is ready to distributethe shares of the other co-sharers and such receipt of compensationby the first plaintiff ipso facto would not lead to any presumptionof any oral partition. Ex.A8, the partition deed, according to him,which emerged between D1 and D2 during the pendency of the suitwould torpedo the plea of oral partition and accordingly he prayedfor the dismissal of the appeal.24. The contention of the learned Senior counsel for thedefendants would be to the effect that even as early as in the year1963 there was an oral partition among Periyapalaniappa Chetty andhis descendants and as per which, the divided sharers startedenjoying their respective share; the first plaintiff also acquiredtwo houses and similarly defendants 1 and 2 also acquired items 5 &6 of the agricultural suit properties; patta also correspondinglygot changed in the name of the respective sharers incommensuratewith and in concinnity with the shares allotted at the oralpartition and that the said oral partition became a fait accompli.25. The learned Senior counsel for defendants 1 and 2, aucourant with facts and laws alternatively would put forth the pointthat in the event of this Court not countenancing and upholding theplea of the defendants that there had been oral partition, then thisCourt might order for partition, in respect of the two houses alsopurchased by the first plaintiff in his name from out of the jointincome derived from the joint family nucleus and also thecompensation amount, which admittedly, the first plaintiff receivedfrom the Government.26. In this factual matrix, it is just and necessary, at thefirst instance, to scrutinise the evidence as to whether the oralpartition as alleged by the defendants, in fact had taken place atall.27. The learned counsel for the plaintiff placing reliance onEx.A8-the partition deed, dated 2.9.1989, which emerged during thependency of the suit, would advance his argument that the veryrecitals in that document would torpedo the plea of oral partitionas put forth by the defendants. 28. A bare perusal of Ex.A8 would unequivocally highlight andspotlight the fact that the said document is fraught with unrealfacts, which are quite antithetical to what the defendantsthemselves had contended earlier in their written statement. Thereis no reference in Ex.A8, about the oral partition, which allegedlyhad taken place during the year 1963. Had really an oral partitiontaken place, certainly there would have been some reference to it inEx.A8. The recitals in Ex.A8 would proceed on the footing as thoughPeriyapalaniappa Chetty was having ancestral properties, andconsequent upon his death, those properties devolved upon https://hcservices.ecourts.gov.in/hcservices/ defendants 1 and 2 and that they wanted to partition such propertiesin the presence of Panchayatdars. The learned counsel for theplaintiff would correctly and convincingly strike the nail on thehead of it by arguing spotlight and highlight that the recitals inEx.A8-Partition Deed dated 2.9.1989 would ignore the very existenceof the plaintiffs as well as the daughters of the saidPeriyapalaniappa Chetty. 29. On the contrary, unconvincingly and dubiously from thedefendants' side, the explanation, which was forthcoming relating toEx.A8-the Partition Deed dated 2.9.1989, was to the effect that onlyfor the purpose of availing loan such a document was brought aboutby the defendants. Whereas, the learned counsel for the plaintiffwould correctly torpedo such explanation by pointing out that aperusal of Ex.B15-the copy of plaint filed in O.S.No.3701 of 1991,would reveal that the bank filed the suit as against the defendantsfor recovery of dues long prior to the emergence of Ex.A8 and thatthere is no iota or shred of evidence to exemplify that based onEx.A8 any loan was availed by the defendants.30. The whole kit and caboodle of evidence on record would inno way highlight that Ex.A8 was brought about by the defendantspurely for the purpose of obtaining loan. If really any oralpartition had taken place during the year 1963, it is not known asto why during the year 1968, as per Ex.A7-the Sale Deed dated21.6.1968, both D1 and D2 should have purchased items 5 & 6 in theirjoint names and the very Ex.A7-Sale Deed dated 21.6.1968 itself isindicative of the fact that there was no actual division among theco-sharers.31. The learned counsel for the plaintiff drawing the attentionof this Court to Ex.B1 to Ex.B14, would advance his argument thatnone of those documents issued by the Revenue officials would enureto the benefit of the defendants to canvass their plea of oralpartition.32. Ex.B1 is the patta book dated nil relating to 4th item ofthe suit property, which stands in the name of D1 and one other 3rdparty and in that document it is found specified that the propertyis an ancestral property. Ex.B2 patta book dated 1.7.1974 stands inthe name of D1 and D2 relating to items 5 & 6, which have purchasedas per Ex.A7, and in that document it is found mentioned that it isan ancestral property. 33. The learned counsel for the plaintiff would develop hisargument to the effect that even as per Ex.B2, the suit items 5 & 6are stated to be the joint family property of PeriyapalaniappaChetty 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 https://hcservices.ecourts.gov.in/hcservices/ plaintiff and D1 and D2 and various other persons, relating to thesaid 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 tothe 20 cents of land, as contemplated under the second segment. Assuch, the learned counsel for the plaintiff would develop hisargument 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 theagricultural properties, which stands in the name of the sons ofPeriyapalaniappa Chetty and there is no indication that there wasany division of status among them. Ex.B6 dated 6.10.1986 is thechitta relating to items 4 & 5 of the suit properties. This standsin the name of D2. 34. The learned counsel for the plaintiff would raise a validcontention that item No.4 was sold in favour of D5-MuthusamyChettiar, but Ex.B6-Chitta-dated 10.3.1985 does not reflect thesame. Ex.B8 and Ex.B9- the Survey notices dated 6.8.1976 are in thename of D1 and D2 respectively, which are relied on by thedefendants to advance the plea that there had been oral partitionand thereupon alone those survey notices were sent to D1 and D2relating to item No.4. But the learned counsel for the plaintiffwould deny their genuineness and submit that those are only mereSurvey notices and nothing more and that cannot also be taken asevidence of the alleged oral partition, which was claimed to haveemerged during the year 1963.35. Ex.B12 dated 31.3.1983 and Ex.B13 dated 19.2.1985 are thehouse tax receipts in the name of the deceased PeriyapalaniappaChettiar, and that would indicate that there was no mutation in thehouse tax register relating to the house properties, which were alsoclaimed to have been partitioned as per the defendants.36. As such, the learned counsel for the plaintiff hascorrectly highlighted that those Exhibits referred to supra markedon the side of the defendants would not enable the Court to arriveat a reasonable conclusion that there was oral partition during theyear 1963. He would also convincingly argue that had really therebeen an oral partition in the year 1963, then the defendants must beable to produce patta or Revenue records or tax receipts anterior to1974 to that effect, but apparently, between 1963 and 1974 not evenany modicum or exiguous extent of evidence has been produced toprove the said oral partition.37. The learned counsel for the plaintiff would be right in hisargument that the plaint is as silent as silence could be relatingto the details about the oral partition. Normally, if an oralpartition had taken place, the party, who relies on such oralpartition, must be able to expatiate as on what date, before whom https://hcservices.ecourts.gov.in/hcservices/ and at which place, it had taken place. But there is no suchindication at all in the written statement. Even in the replynotice Ex.A13 dated 22.6.1985, which emerged in response to Ex.A12dated 23.5.1985- the lawyer's notice sent by the plaintiff to D1 andD2, there are no details about the oral partition. On the contraryfor 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 ofelders namely, Avinasi Chetty, Chinnapalaniappa chetty, Vanji(D.W.2). No date has been specified. None of those Panchayatdarsand elders have been examined to speak about such oral partition.In consonance with the deposition of D.W.1, D.W.2 (D4) also spokeabout the oral partition unconvincingly. The depositions of D.W.1and D.W.2 the parties to the proceedings are turned out to benothing but their ipse dixit and it is not preceded by avermentsin the written statement. It is a trite proposition of law that anyamount of evidence, without pleadings, should be eschewed. In thisconnection, the following decisions of the Full Bench of this Courtreported in 2006 (4) L.W.409-B.SURESH CHAND VS. 1.STATE OF TAMILNADU, REP.BY THE SECRETARY REVENUE DEPARTMENT, FORT ST.GEORGE,MADRAS-9, 2.THE DEPUTY COMMERCIAL TAX OFFICER, THIRUPATTUR, NORTHARCOT DISTRICT has been cited by the learned counsel for theplaintiff. In the said decision, various decisions of the HonourableApex Court have been adverted to and certain excerpts from it wouldrun thus:"28. In this context it will be useful to refer toOrder 6 Rule 2 of C.P.C., which reads as follows:"Order 6 Rule 2: Pleading to state material factsand not evidence.- (1) Every pleading shall contain,and contain only, a statement in a concise form of thematerial facts on which thek party pleading relies forhis claim or defence as the case may be, but not theevidence by which they are to be proved."29.A reading of the above provisions show that theparty must plead all material facts on which he meansto rely at the trial. If any one of the material factis omitted, the statement of claim is bad and it wouldmean no pleading and no cause of auction for the suit.If material facts are not pleaded, a court cannotpermit evidence to be led. In 1977 (1) S.C.C.511(Udhav Singh vs. Madhav Rao Scindia) the Supreme Courthas defined the expression "material facts' in thefollowing words:-"All the primary facts which must be proved at thetrial by a party to establish the existence of a causeof auction or his defence are material facts". https://hcservices.ecourts.gov.in/hcservices/

30. The distinction between "material facts' and"particulars" cannot be overlooked. Material facts areprimary and basic facts which must be pleaded by theparty in support of the case set up by him, either toestablish his cause of auction or defence. Since theobject and purpose is to enable the opposite party toknow the case he has to meet, in absence of pleading aparty cannot be allowed to lead evidence. Failure tostate even a single material fact, hence, will entaildismissal of the suit. Particulars, on the other hand,are the details of the case. They amplify, refine andembellish material facts. They give the finishingtouch to the basic contours of a picture already drawnso as to make it full, more clear and moreinformative."38. It is therefore clear that the Full Bench of this Court,adverting to the Honourable Apex Court's judgements, categoricallyset out that if material particulars are missing in the pleadings,then oral evidence cannot be entertained. It is also worthy andsignificant to note that even before the institution of the suit,in the reply notice the defendants have chosen to come forward withthe plea of oral partition and the plaintiff in the plaint contendedthat such plea of oral partition was false and despite that in thewritten statement there found no details set out. The learnedcounsel for the defendants placing reliance on the deposition ofP.W.1(P1-Balasubramanian) during his cross-examination, has advancedhis argument that P.W.1 candidly and categorically admitted thatthere had been an oral partition. No doubt the perusal of thedeposition would evince that there is one sentence found in thecross-examination as under:-". . .. . . . . . . jdpg;gl;l ghfk; gphpj;j gpwF th';fpajpy; mJjdpg;gl;l brhj;J / / / / / / @ 39. Per contra, the learned counsel for the plaintiff wouldsubmit that no such admission was made by P.W.1, conveying such ameaning as though there had been an oral partition.40. At this juncture, I would like to point out that adeposition has to be read as a whole. The tenor of the depositionis the sure test. When doubt arises as to whether a partyunwittingly gave any answer to a question, in my considered opinionplacing reliance on a stray answer to a question during cross-examination and deciding a serious matter involving a serious issuerelating to the existence or otherwise of the oral partition, wouldlead to travesty of justice. The duty of the Court in suchcircumstances under Section 165 of the Indian Evidence Act is to https://hcservices.ecourts.gov.in/hcservices/ ascertain from the witnesses as to his own contradictory versions inhis deposition. 41. Here it is the consistent contention of P.W.1 even in hispre-suit notice as well as in the plaint and also in his depositionduring Chief-examination and in cross-examination that there hadbeen no oral partition and in such a case, placing reliance on afragment of a sentence during cross-examination of P.W.1 cannot betreated as the decisive factor to decide the lis. It is also notreadily known as to whether it was recorded properly. I am fullyaware of the fact that the appellate Court cannot look askance atthe deposition recorded by the lower Court. But if thecircumstances warrant so, the appellate Court should not hesitate todoubt such recording of the deposition. Hence, I would like toextract the portion before and after the doubtful sentence includingthe 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/ tptrhatUkhdk; jtpu ntW tUkhdk; Vjkpy;iy/ FoapUf;Fk; tPL jhthtpy;fhl;ltpy;iy/ mJ jdpf;Foj;jdk; nghdt[ld; th';fpaJ/ 2fpiuaj;jpw;F th';fpaJ/ tPl;Lthp v';fs; nghpy; eh';fs; fl;otUfpnwhk;/ ,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{kpfpiuak; 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 theview taken by me that such stray portion of the sentence in themiddle of the cross-examination cannot be taken as admission byP.W.1 about the alleged oral partition.43. The learned counsel for the plaintiff would also correctlyadvance his argument that mere separate mess and separate physicalliving from other coparceners, would not constitute division incoparcenary status relating to coparcenary properties. In supportof his contention, he would place reliance on the decision of thisCourt reported in AIR 1987 Madras 24- P.KALIAPPA GOUNDER AND ANOTHERV. MUTHUSWAMI MUDALIAR, certain excerpts from it would run thus:-"8.Partition is the intentional severance of thejoint ownership by an unequivocal expression of anintention to bring out severance in the eye of law andfurther implementing it by actual division by metes andbounds. What was held in common as a single propertygets converted into a holding in severalty and inspecie. Joint ownership turns into ownership inseveralty and in specie. It is true that 'partition' https://hcservices.ecourts.gov.in/hcservices/ is not a transfer. But there must be the element ofconversion as the joint ownership into ownership inseveralty and in specie. Therefore, the essence ofpartition is that the joint ownership is put an end toand the joint owners come to hold the property inseveralty and each in his own individual right. Inthis country, it is common that not only coparceners ofa joint Hindu family but also individuals join orcontinue together to own property in common. If thiscommon ownership is to be put an end to not only intheory but also in practice, there must be primarilyseverance of the joint ownership in the eye of law,followed up by actual physical division. We make itclear that in the present case, we are not concernedwith the concept of a bare unequivocal expression ofan intention to separate to bring about division instatus in a joint Hindu family. It is not unusual forparties holding properties jointly or in common to haveseparate enjoyment of portions for the sake of sheerconvenience. But such separate enjoyment ofconvenience cannot be equated to partition in the eyeof law and in fact, so as to say that the jointownership has been put an end to and in its placeownership in severalty or in specie has come intoexistence. Separate enjoyment for the sake ofconvenience is one thing and partition in the eye oflaw is another. The latter carried with it the legalincidents of mutating the joint ownership. The latterhas to pass through and satisfy a more rigorous test inlaw and on facts.9. Keeping in mind the above principle, when weexamine the present case, we are not able to subscribeour support to the case of the defendants that therewas in fact a partition or a division of the commonproperties as between the parties in the eye of law.The features which Mr.T.S.Subramanian, learned counselfor the defendants, brings to our notice are notadequate in law to support the theory of 'partition'.Learned counsel would state that the parties areadmittedly in possession of different portions; theplaintiff in possession of the southern portion and thedefendants in possession of the northern portion.Learned counsel further states that the defendants havedeepened the well in their portion and have put up amotor pump set and there is also an underground pipeline in their portion, which exclusively serves therequirements of the defendants and this is the finding https://hcservices.ecourts.gov.in/hcservices/ of fact rendered by the Court below. Learned counselwould also urge that on the basis of certificate ofownership, the parties, both the plaintiff and thedefendants, have obtained loans for the purpose ofdeepening the wells in the portions in their enjoyment.In our view, these features are not unusual even in thecase of common ownership in the eye of law along withseparate enjoyment of specified portions for the sakeof convenience. They could be in consonance with theadmitted enjoyment of separate portions by the parties,explained by the plaintiff as one for the sake ofconvenience. We could not spell out that the jointownership as such was put an end to and in its placethe ownership in severalty and in specie came intoexistence. The title of the defendants to theundivided share in the suit properties is derived underseveral deeds of sale. In all these documents what thedefendants acquired is described as only an undividedshare. If in fact, there was a division andconsequently a separate ownership long prior to thesealienations, as claimed by the defendants, the partieswould not have omitted to make a specific reference tothe same. Such a recital which is not only a naturalone but also an absolutely necessary one, isconspicuously absent in all the title deeds under whichthe defendants claim right to the suit properties.Admittedly, there was no mutation and no separatepayment of kist. None of the documents relied on bythe defendants reflects or speaks about division atall."44. As such, the cited decision is in support of the contentionof the plaintiff that there was no oral partition and my abovediscussion relating to the documents and evidence relied on by thedefendants would also evince that the parties, for the sake ofconvenience, have been enjoying different portions of the jointfamily properties and by that alone the Court cannot jump to theconclusion that there had been oral partition.45. The learned counsel for the plaintiff also would cite thedecision of the Division Bench of the Andhra Pradesh reported in1982 ANDHRA PRADESH 270- PURNA BAI AND OTHERS V. RANCHHODDAS ANDOTHERS, certain excerpts from it would run thus:"26. It is next contended by Mr.H.S.Gururaja Raothat Ex.B-14 is a letter written by Gopinath on 6.6.66stating therein that he had distributed the amounts as https://hcservices.ecourts.gov.in/hcservices/ stated in the Will. In that it is shown that DwarakaDas was paid Rs.15,000/-. Gopinath is not examined toprove this payment or Ex.B-14. Except D.W.1, no oneelse is examined to prove Ex.B-14. In the cross-examination of P.W.2 it is suggested that Dwaraka Daswas paid Rs.25,000/- in pursuance of the Will. Thesuggestion, thus, is not in accordance with thecontents of Ex.B-14. Ex.B-14 is dated 6.6.66 i.e.,after the death of Dwaraka Das. Further, Ex.B-14 wasnot put to P.W.1 or P.W.2 during their cross-examination. Therefore, there is any amount of doubtas regards the contents of this Ex.B-14. Further, itis to be noted that it is in the evidence of P.Ws.1 and2 that D-1 used to pay them Rs.1,500/- per month fortheir maintenance after the death of Dwaraka Das.There were also occasions when D-2 and D-6 paid to theplaintiffs. They stopped payment only some timeearlier to the filing of the suit. As held supra, theevidence of D.W.1 is not trustworthy as regards thefact that there was a partition or settlement in 1942or 1957. It is very difficult to believe his evidenceeven in respect of this aspect of the case also. Nodoubt, he denied having made payments at the rate ofRs.1,500/- to the plaintiffs. But having regard to thecircumstances and other evidence adduced, it seems tobe true as deposed to by P.Ws.1 and 2 that they werebeing 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 wasa joint family and the properties were joint. For allthese reasons we hold that there was no division orsettlement of the family properties as alleged by thedefendants and that the family continues to be joint.It is a fact that P.Ws.1 and 2, both, deposed that thefamilies of the plaintiffs and D-1, D-6 and otherdefendants are living separately since 20 to 25 years.Merely because the families are living separately thenature of the joint family property will not be changedunless there is partition, division or settlement.Therefore, the properties continue to be joint familyproperties only.27. The third point to be considered is, whetherthe suit is barred by limitation. In the plaint it isalleged that the plaint schedule properties are jointfamily properties and when the plaintiff demanded forpartition the defendants refused it. The plaintiffsserved the suit notice, Ex.A-15 dated 14.1.1976 and the https://hcservices.ecourts.gov.in/hcservices/ defendants issued a reply, Ex.A-16 denying that theproperties are joint family properties. Therefore thesuit 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 thatthe business was carried on independently even longbefore 1943, late Dwarakadas at Secunderabad and D-1,Motilal, at Gulzara House as partners of the shop.Thus, according to the written statement the businesswas so carried on independently by the sons even duringthe lifetime of Purandas. In view of this, it ispleaded, the suit for partition is wholly untenable andtime barred. Except this allegation that the suit istime-barred, there is no specific plea in the writtenstatement that Dwaraka Das was excluded from enjoymentof the joint family properties to the knowledge ofDwaraka Das and his sons. Since there is no plea ofexclusion, there is also no issue and consequently noevidence or finding. It is a settle principle of lawthat when there is no plea, there will be no issue andtherefore there cannot be any finding. What amounts toexclusion is a question depending upon the particularfacts of each case. The exclusion must be to theknowledge of the person excluded and there should besufficient (material) to prove the said exclusion.Merely because the members of the joint family areliving separately with the consent of each other andmanaging the joint business, it cannot be said thatthere is exclusion. For this proposition of law, it isrelevant to refer to the decision of the Privy Councilin Radhoba v. Aburao, AIR 1929 PC 231. The PrivyCouncil held:"There is no definition of the word "exclusion", in theLimitation Act and the question whether a person hasbeen excluded from joint family must depend upon thefacts of the particular case. An intention to excludeis an essential element. It is necessary, therefore,for the Court to be satisfied that there was anintention on the part of those in control andpossession of the joint family property to exclude theperson 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. Sinceit is not raised before the trial Court, the learnedcounsel for the plaintiffs contended that in view ofthe decision of the Privy Council in Virayya v. Adenna,AIR 1930 PC 18, the same cannot be entertained in thisappeal. The Privy Council laid down that although the https://hcservices.ecourts.gov.in/hcservices/ plea of limitation may have been mentioned in thewritten statement and also in the grounds of appeal, ifno issue is directed to bear upon the question beforethe trial Judge and the point has not been taken at theBar during the trial, it cannot be allowed in appeal.The learned counsel further submitted that the questionof limitation is a mixed one of law and fact and thatunless there is an issue and evidence, the same cannotbe considered in appeal. In the present case, thoughthere was a plea in the written statement no issue isframed and no evidence was let in and no finding isgiven by the trial Court. On the other hand, thelearned counsel Sri H.S.Gururaja Rao, contended thatthe plea of limitation is a pure question of law andtherefore even though it is not raised before the trialCourt it can be raised at the appellate stage. Forthis proposition of law, the learned counsel sought toplace reliance upon a decision of the Federal Court inRatneshwari Nandan v. Bhagwati Saran, AIR 1950 FC 142and also of this High Court in Sambhasiva Rao v.Kanakamma, AIR 1960 Andhra Pradesh 213. He furthercontained that the documentary evidence i.e., thepartnership deeds between the defendants and theirsons, the income-tax assessment orders and thecertificates issued by the Income-tax Authorities showthat since 1959 onwards the defendants are doingbusiness exclusively and therefore the suit filed inthe year 1976 is barred by limitation as per Art.110 ofthe Limitation Act. First of all, there was no issue,evidence or finding on this point. We have also heldthat once there is a joint family and the propertiesare joint family properties managed by some members ofthe joint family, the said properties will not seize tobe joint family properties merely because the othermembers have not managed the said properties, unless itis proved that the other members to their knowledgehave been excluded from the joint family. As held byus, the properties are still joint family properties asthe alleged settlement or partition pleaded was held tobe false. The evidence of D.W.1 on this point was heldto be not believable. The case of the plaintiffs isthat though the two shops are there – one at GulzaraHouse and the other in Secunderabad – managed by thedefendants and Dwaraka Das, the entire profits wereenjoyed by all the members jointly and this is evenspoken to by D.W.1 in the cross-examination thatearlier to the division they were all enjoying the https://hcservices.ecourts.gov.in/hcservices/ fruits jointly. We have held that there is nosettlement either in 1942 or 1957. Therefore, thejoint family properties continues to be joint. Eventhe evidence of P.Ws.1 and 2 is that the defendantsused to pay Rs.1,500/- per month for their maintenancefrom the income of Gulzara House Shop. All these factsshow that there was no exclusion of Dwaraka Das fromenjoyment of the joint family properties. Evenotherwise once the property is the joint familyproperty, unless there is exclusion of one member tohis knowledge from the joint family for over a periodof twelve years, it cannot be said that the said memberhas ceased to have any right in the joint familyproperties. Mr.Mohan Rao, the learned counsel for the4th respondent submitting that P.W.1 herself hash inevidence deposed that they were living separately since30 years, that the house in which she is living is inher name having been purchased some 30 to 35 yearsback, that Motilal has got a separate business in aseparate shop, that since 1957 the business was carriedon in partnership, while P.W.2 also admitted thathimself, the 2nd plaintiff as well their mother wascarrying on business in the shop at Sultan Bazar in apartnership till the end of 1972, sought to contendthat these admissions and portions in their evidenceindicate that they were not only living separatelysince more than two decades but the businesses were runon partnership basis to the exclusion of others and,therefore, the suit brought in after twelve long yearsis barred by limitation. All these contentions havebeen in fact adverted to earlier and held that simpleseparate living is no indication to conclude eitherexclusion or division and that the plaintiffs were evenpaid at the rate of Rs.1,500/- per month for theirmaintenance from out of the earnings of the shop atGulzara House by the defendants. Further at the timeof death of Dwaraka Das, the 3rd plaintiff was a minorin 1966 and he attained majority only thereafter. Asheld by the Madras High Court in Marudanayagam v. SolaPillai, AIR 1965 Mad 200, a suit filed by the minorafter attained majority within twelve years thereof(i.e. From the date of attaining majority) is withinthe period of limitation. For all these reasons wehold that the suit is not barred by limitation and thatthere is no exclusion of the plaintiffs also ascontended." https://hcservices.ecourts.gov.in/hcservices/

46. The said decision would highlight the law point that merelybecause coparceners live separately, there is no presumption thatthere was division of status relating to coparcenary properties.There is also one another dictum found set out in the said precedentthat simply because some members managed some properties there couldbe any presumption that there had been division in status.47. The learned Senior counsel for the defendants would drawthe attention of this Court to paragraph 7 of the plaint and advancehis argument that the very conduct of first plaintiff in receivingthe compensation amount relating to the land acquired by theGovernment would speak volumes that he admitted the oral partition.Per contra, the learned counsel for the first plaintiff would placereliance on the first plaintiff's stand in his pre-suit noticeitself and submit that the first plaintiff being the kartha of thejoint family, after the death of his father PeriyapalaniappaChettiar, received the said compensation amount and that heexpressed his desire to share that amount with the other co-sharersand that even now the first plaintiff is ready and willing to sharethe compensation amount with other co-sharers. 48. No doubt, the first plaintiff could have very well alreadyshared that compensation amount along with the other co-sharers, buthe did not do so. The Core question arises as to whether suchreceipt of compensation amount itself would amount to accepting theoral partition. It is a common or garden principle in Hindu Lawthat in a co-parcenary, after of the death of the father, the eldestmale member would be deemed to be the kartha and in such a case,the factum of the first plaintiff qua kartha having received thecompensation amount would not constitute an estoppel against himfrom contending that there was no oral partition. In fact, inparagraph 7 of the plaint, the first plaintiff himself would admitthat he is the kartha of the family after the death ofPeriyapalaniappa Chetty. 49. It is therefore clear that even though certain items ofproperties were under the enjoyment of some of the co-sharers, itcould only be taken that they were enjoying so for convenience sakeand not after division of status in the coparcenary family andaccordingly, point No.(ii) is decided to the effect that there wasno oral partition among the co-sharers and that they have beenenjoying the various items of properties for their own convenience.50. Point No.(iii): In view of the finding above that there hadbeen no oral partition as contended by the defendants, as a sequalethe aforesaid admitted joint family properties should be partitionedamong the shares concluded. https://hcservices.ecourts.gov.in/hcservices/

51. The pertinent question arises as to whether items 5 & 6 ofthe agricultural lands referred to in the suit property, claimed tohave been purchased by D1 and D2, as per Ex.A7, and the two housesadmittedly purchased by the first plaintiff, but not shown in theschedule of the plaint, should be treated as joint family propertiesor not?52. Indubitably,the items 1 to 4 - agricultural properties, asfound set out in the schedule of the plaint, have been in possessionand enjoyment of defendants 1 and 2 as on the date of emergence ofEx.A7-the sale deed, dated 21.6.1968, relating to purchase of thesaid items 5 and 6. As such it is crystal clear that defendants 1and 2 had income from the joint family nucleus and out of that theypurchased those items. The learned Senior counsel for thedefendants would contend that there is no evidence on record todemonstrate and exemplify that D1 and D2 purchased those propertiesonly 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. NarayanDevji Kango and others). An excerpt from it would run thus:"8. Proof of the existence of a joint family doesnot lead to the presumption that property held by anymember of the family is joint, and the burden rests uponanyone asserting that any item of property was joint toestablish the fact. But where it is established that thefamily possessed some joint property which from its natureand relative value may have formed the nucleus from whichthe property in question may have been acquired, theburden shifts to the party alleging self-acquisition toestablish affirmatively that the property was acquiredwithout the aid of the joint family property.10. Whether the evidence adduced by the plaintiff wassufficient to shift the burden which initially rested onhim of establishing that there was adequate nucleus out ofwhich the acquisitions could have been made is one of factdepending on the nature and the extent of the nucleus. Theimportant thing to consider is the income which thenucleus yields. A building in the occupation of themembers of a family and yielding no income could not be anucleus out of which acquisitions could be made, eventhough it might be of considerable value. On the otherhand, a running business in which the capital invested iscomparatively small might conceivably produce substantialincome, which may well form the foundation of thesubsequent acquisitions. These are not abstract questionsof law, but questions of fact to be determined on the https://hcservices.ecourts.gov.in/hcservices/ evidence in the case. Where the finding of the Courts is that the incomefrom the ancestral lands was not sufficient even for themaintenance of the members, and the houses in dispute aresubstantial, burden is on the plaintiff who alleges thehouses to have been acquired out of joint family funds, toestablish it.Held that if the contention that on proof of theexistence of the Watan lands the burden had shifted on tothe defendants to prove that the acquisitions were madewithout the aid of joint family funds,that burden had beendischarged. Likewise, it was held that since the ancestral Watanlands are intact, and were available for partition, andthe small income derived from them must have been utilisedfor the maintenance of the members of the family, whetherit were held that the plaintiff had failed to dischargethe burden which lay on him of establishing sufficientnucleus, or that the defendants had discharged the burdenof establishing that the acquisitions were made withoutthe aid of joint family funds, the result was the same." 53. The aforesaid precedent would unambiguously spot light andmake apparent and pellucid the point that in order to prove that theproperty is the joint family property, there should be evidence toindicate that there was joint family nucleus and income was arisingout of it so as to enable the joint family to purchase suchadditional properties and that the burden of proof is on the person,who pleads that even though the property might stand in the name ofone of the co-sharers, nonetheless, it belongs to the joint family.Undoubtedly, this case should necessarily be analysed in the lightof the dictum set out in the cited decision. (ii) AIR 1960 SC 335 (Rukhmabai vs. Lala Laxminarayan andothers) and an excerpt from it would run thus:"5. There is a presumption in Hindu law that afamily is joint. There can be a division in status amongthe members of a joint Hindu family by refinement ofshares which is technically called “division in status”,or an actual division among them by allotment ofspecific property to each one of them which is describedas “division by metes and bounds”. A member need notreceive any share in the joint estate but may renounce https://hcservices.ecourts.gov.in/hcservices/ his interest therein, his renunciation merelyextinguishes his interest in the estate but does notaffect the status of the remaining members vis-a-vis thefamily property. A division in status can be effected byan unambiguous declaration to become divided from theothers and that intention can be expressed by anyprocess. Though primafacie a document clearly expressingthe intention to divide brings about a division instatus, it is open to a party to prove that the saiddocument was a sham or a nominal one not intended to beacted upon but was conceived and executed for anulterior purpose. But there is no presumption that anyproperty, whether movable or immovable, held by a memberof a joint Hindu family, is joint family property. Theburden lies upon the person who asserts that aparticular property is joint family property toestablish that fact. But if he proves that there wassufficient joint family nucleus from and out of whichthe said property could have been acquired, the burdenshifts to the member of the family setting up the claimthat it is his personal property to establish that thesaid property has been acquired without any assistancefrom the joint family property."54. A perusal of the said judgement would highlight that thereis no presumption that any property whether immovable or movableproperty held by the member of the joint Hindu family is a jointfamily property and the burden is on the person, who pleads that theproperty is the joint family property, to prove it. The samedecision highlights one other important proposition of Hindu lawthat there is a presumption under the Hindu law that the family is ajoint one. (iii) MLJ (II) 1976 225 ((Pattusami Padayachi vs. Mullaiammaland others:"18. The properties purchased by one or other of themembers of a co-parcenery or joint family when the familyis joint cannot as a matter of course be treated as jointfamily property. The co-parcener who challenges suchtitle in the member and pleads that they should also bebrought to the hotch-pot ought to establish by cogent andmature evidence that there was enough surplus income whichwas available in the joint family and which positivelycould be the foundation for such annexures made by one orthe other of the members of the joint family. In all casesdefinite proof is required that the further purchase in https://hcservices.ecourts.gov.in/hcservices/ the names of joint family members ought to have been madeand could not have been made otherwise than from thesurplus income of the family. For a greater reason therule is made strict in the case of properties in the nameof female members. The fact that a female member in ajoint family has properties in her own name would notnecessarily lead to the conclusion that the origin of suchproperties should be traced to the joint family or to theincome from the joint family, inasmuch as the stridhanamproperty of a female and possession of property by herhave 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 BETGERIAND OTHERS VS. R.YELLAPPAGOUDA PATIL AND OTHERS;(vi) AIR 1954 SC 379 - SHRINIVAS KRISHNARAO KANGO VS. NARAYANDEVJI KANGO AND OTHERS.55. The aforesaid decisions would unambiguously highlight thatthe burden of proof is on the party, who pleads that the propertypurchased by one of the co-sharers is the joint family property. Itis also pertinent to note that once it is established that the co-sharer purchased certain properties in his own name at a time whenhe was in receipt of income from the joint family nucleus, then theburden of proof would get shifted on him to prove that he acquiredthose properties from out of his own earnings. So far this case isconcerned, it is the admitted case of both sides that they allbelonged to agricultural family and they derived income only bydoing agricultural operation. In fact, D.W.1(D2) in his depositioncandidly and categorically deposed that he had no other avocation orjob except agricultural operation. In such a case, it is crystalclear that items 5 and 6 were purchased from out of the incomederived from the joint family nucleus. Had really defendants 1 and2 got separate income, other than the income derived only from thejoint family nucleus, then they should have adduced evidence aliundeto prove that they purchased those properties from out of suchseparate income; however there is no modicum of evidence in thatregard. Hence, I am of the considered opinion that items 5 and 6 ofthe agricultural properties, described in the schedule of theplaint, would constitute part and parcel of the coparcenaryproperty. 56. The learned Senior counsel for the defendants would submitthat the two houses purchased by the first plaintiff as admitted by https://hcservices.ecourts.gov.in/hcservices/ him should be treated as co-parcenery property and in fact, he oughtto have showed those items also in the schedule of the plaint alongwith the three houses, which had already been shown in the plaintschedule as the co-parcenery properties, but he had not done so andconsequently, the suit itself is bad for partial partition. Thelearned counsel for the plaintiff would contend that the evidence onrecord would demonstrate that the first plaintiff purchased twohouses from out of the income derived from his wife's agriculturalproperties and not from out of the income derived from the jointfamily nucleus. The fact remains that admittedly, the plaintiff, asper his own version, was in possession and enjoyment of an extent of3 acres and 2 cents in Survey No.344/1 as kartha of the joint familyand which was subsequently acquired by the Government andcompensation was paid to him. Readily it is not known about thedescription of those two houses as well as the date of thosepurchases. Instead of the first plaintiff, in accordance withSection 106 of the Indian Evidence Act, furnishing all the relevantfacts pertaining to the purchase of the of two houses withdescription, he simply relies upon the written statement filed bythe defendants and contends that those houses were purchased by thefirst plaintiff, soon after the alleged oral partition during theyear 1962/63. Such an argument cannot be countenanced and upheld astenable under the law. The pertinent questions arise thus:What is the stand of first plaintiff? Is there anystraight 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 statedthus:"7. The plaintiff No.1 after taking his share,purchased a separate 2 sets of house property in hisname and he is residing in the said house right fromthe date of purchase immediately after partition.Cleverly he has omitted to include those items in thesuit property. Similarly, these defendants havepurchased 2.34 acres of agricultural land in SF.No.221and 222/2 as per Sale Deed dated 21.6.1968."57. The unassailable fact is that the first plaintiff purchasedtwo houses. But he has not adduced precisely evidence relating tothem or furnished particulars about them. But he would develop hiscontention that the defendants themselves contended that the twohouses were purchased soon after the alleged oral partition. Thelaw and the logic, including the case laws applied as against D1 andD2 so as to treat the said items 5 and 6 of the suit properties aspart and parcel of the co-parcenary properties shall also beapplicable as against the first plaintiff so as to treat the saidtwo houses purchased by him as the ones acquired by him from out of https://hcservices.ecourts.gov.in/hcservices/ the income derived by him from the joint family nucleus.58. The contention of the first plaintiff is that from out ofthe income derived from his wife's property, he purchased those twohouses in his name. At this juncture, I would like to recollect thewell known proposition that preponderance of probabilities wouldgovern the adjudication in civil cases. Normally, if an undividedcoparcener wants to purchase a property, he would normally purchasein the name of his wife or his other close relatives, so as to keepthe property away from the reach of other coparceners. But, in thiscase, it is the specific contention of the first plaintiff that fromout of the income derived from his wife's property, those two houseswere purchased not in the name of his wife but in his own name. 59. The learned counsel for the first plaintiff would placereliance on the answer given by D.W.1(D2) to the effect that thefirst plaintiff's wife was having properties, which were lookedafter by the first plaintiff. Simply because, D.W.1 admitted thatthe first plaintiff was looking after his wife's property, there isno presumption that D1 and D2 admitted that the first plaintiffpurchased those two houses from out of the income derived from hiswife's property. On the side of the plaintiff, apart from theplaintiff, no one was examined. As such, the deposition of P.W.1remains only his ipse dixit and constitutes his self-servingversion, which cannot be relied on to hold that those two housespurchased 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 hisfather Periyapalaniappa Chetty, he was his eldest son and that heacquired those two houses while he was admittedly enjoying the jointfamily nucleus. In such a case, the presumption as applied asagainst D1 and D2 should also be applied as against the firstplaintiff and it has to be held that those two houses purchased bythe first plaintiff should be treated as co-parcenary properties.No more elaboration is required to hold that those two houses shouldnecessarily be treated as part and parcel of the co-parcenaryproperties. 61. At this juncture, the learned counsel for the defendantswould contend that as of now there are no particulars about thosetwo houses and that it would be difficult for partition of thosehouses also and on that ground itself the suit has to be dismissedas one bad for partial partition. Even though, the description anddetails about the two houses are not readily available , nonethelessduring the final decree proceedings, the plaintiff is bound tofurnish those particulars. It is a trite proposition that at the https://hcservices.ecourts.gov.in/hcservices/ final decree stage, description and inclusion of properties arepossible. But only requirement is that during the preliminarydecree proceedings itself, the controversy concerning title relatingto those items should have been settled. Even items which have beenleft out due to over sight could be added during the final decreeproceedings.62. Simply because the plaintiff did not come forward toinclude the sum of Rs.17,365/-, which he received from theGovernment as compensation, in the suit property, and that he, asper his own stand, was exclusive owner of the two houses and that hedid not include them in the suit properties, the suit cannot be heldto be bad for partial partition. Merely, because the plaintiffowing to some motive or as per his own stand did not include certainitems in the suit property, it would not lead to the conclusion thatthe suit is bad for partial partition. There are instances wherethe parties would deliberately leave certain items of properties,without any valid reasons for getting it divided at once, but toget them divided at a later date at their own whims and fancies andin such a case, the Court could hold that the suit is bad forpartial partition. Even in such cases, the Courts have got thepower to direct that the left out items also should be included inthe partition, once there are evidence available on record thatthose items are co-parcenary properties. In fact, both sides reliedon Mulla's Hindu Law on this Aspect. I would like to extract apassage from the famous Mulla Hindu Law (19th Edition) "327. PARTIAL PARTITION:(1) A partition between coparceners may be partialeither in respect of the property or in respect of thepersons making it.After a partition is affected, if some of theproperties are treated as common properties, it cannotbe held that such properties continued to be jointproperties, since there was a division of title, butsuch properties were not actually divided.(2) Partial as to property.- It is open to themembers of a joint family to make a division andseverance of interest in respect of a part of the jointestate, while retaining their status as a joint familyand holding the rest as the properties of a joint andundivided family. However, where there is evidence toshow that the parties intended to sever, then the jointfamily status is put to an end, and with regard to anyportion of the property which status is put to an end,and with regard to any portion of the property whichremained undivided the presumption would be that themembers of the family would hold it as tenants-in- https://hcservices.ecourts.gov.in/hcservices/ common, unless and until a special agreement to hold asjoint tenants is proved. When a partition is admittedor proved, the presumption is that all the property wasdivided and a person alleging that family property, inthe exclusive possession of one of the members afterthe partition, is joint and is liable to bepartitioned, has to prove his case." 332. . . . . . . . . . . . Whether a suit for partition should comprise all thejoint family properties, in other words, whether thesuit should be one for general partition, or whether itcan be one for a partial partition only depends uponwho the parties to the suit are:(i) The general rule is that where a suit for partitionis brought by a coparcener against the othercoparceners, it should embrace the whole familyproperty. This rule is subject to certainqualifications. Thus, where a portion of the propertyis not available for actual partition, as being in thepossession of a mortgagee, or where it is held jointlyby the family with a stranger, a separate suit forpartition may be brought in respect of that portion inthe courth of the place where that portion is situated.(ii) The next case is where a coparcener sells hisundivided interest in one of several propertiesbelonging to the coparcenary, and a suit for partitionis brought by the purchaser of such interest againsthis vendor and the other coparceners. In this case,there is a conflict of decisions as to whether he cansue for partition of that property alone in which he isinterested as a purchaser, or whether he should sue forgeneral partition of all the family properties. Thissubject is dealt with in 261(3).(iii) The third case is where a coparcener sells hisundivided interest in one of several propertiesbelonging to the coparcenary, and a suit for partitionis brought by the other coparceners against thepurchaser. As to the rights of the other coparcenersin such a case, see 261(3).(iv) The last case may be put in the form of anillustratin. A and B are members of a joint familyproperty consists of three houses, X, Y and Z. A sellshis interest in house X to C. B sells his interest inthe same house to D. In such a case, D can sue C forpartition of house X, without asking for a partition of https://hcservices.ecourts.gov.in/hcservices/ houses Y and Z. A and B, no doubt, must be joined asdefendants; but the real contest in this case isbetween strangers to the family, namely, C and D, andthere is no reason why such contest should not bedetermined without reference to the remaining propertyof the family."63. It is therefore clear from the above excerpts that the viewtaken by me that those two houses and the compensation amount eventhough not included in the suit properties, the same could beordered to be included during the final decree proceedings foreffective partition. Accordingly, point No.(iii) is decided thatthe suit is not bad for partial partition.64. Point No.(iv): The relationship among the parties is anadmitted one, over which, there is no controversy. PeriyaPalaniappa Chetty, had three sons, namely, the first plaintiff-P.Balasubramaniam, D1-P.Arumugham, D2-P.Chidambaram, and twodaughters, namely, D3-Palaniammal and D4-Vanchiammal and his wifePalaniammal, plaintiff No.2. The deceased Peria Palaniappa Chettyand his three sons being Hindus, constituted the co-parcenary andaccordingly, each were entitled to 1/4th share. Consequent upon thedeath of Peria Palaniappa Chetty on 16.4.1974, his 1/4th share inthe 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) areentitled 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 decreethe compensation amount received by the first plaintiff for beingdivided according to their respective shares of the parties. Eventhough the trial Court adverted to the evidence concerned, it hasfailed to consider the importance of including in the partition thetwo houses purchased by the first plaintiff from out of the incomederived from the joint family nucleus. As such, the judgement anddecree of the trail Court requires modification. Accordingly pointNo.(iv) is decided.66. Point No.(v): The learned Senior counsel for the fistplaintiff would contend that D5, despite notice having been issuedto him, did choose to purchase a portion of the suit property andthat he does not deserve any equity. Whereas the learned counselfor D5 (consequent upon D5's death R5 to R10-the legalrepresentatives were impleaded) would contend that D5 was a bonafide purchaser for value and that he was not in receipt of noticeearlier to the purchase of the suit property. https://hcservices.ecourts.gov.in/hcservices/

67. I am of the considered opinion that this Court need notprobe into the fact as to whether D5 was the bona fide purchaser forvalue without notice or not, as it is not a case where D5 purchasedthe property covered by any agreement to sell and only in such orsimilar circumstances, the question as to whether D5 was a bonafide purchaser or not, would gain prominence. It has become acommon or garden principle that the purchaser of the undividedshare of the sharers could work out his remedy during final decreeproceedings and the equity before the Court concerned could bepleaded and got adjudicated. Accordingly, point No.(v) is decided.68. In the result, the judgement and decree of the trial Courtis modified as under:-"(a) In the suit properties, the sum of Rs.17,365/-(Rupees seventeen thousand three hundred and sixty fiveonly) received by the first plaintiff shall be added asa one among the co-parcenary properties. The twohouses admittedly purchased by the first plaintiff, thedetails of which, the first plaintiff is bound tofurnish to the Court during the final decreeproceedings, shall also be part of the coparcenaryproperties for being partitioned, as per the judgementand decree of this Court. All the suit propertiesalready referred to in the schedule of properties inthe plaint shall also be the coparcenary properties forbeing partitioned, as per this judgement and decree.(b) The first plaintiff(P1), first defendant(D1)and second defendant(D2) are entitled to 7/24th shareeach in all the aforesaid items of co-parcenaryproperties. The second plaintiff (P2), third defendant(D3) and the fourth defendant (D4) are entitled to1/24th share each in all those properties. The firstplaintiff is bound to pay 6% interest on the share ofthe other sharers in the sum of Rs.17,365/- (Rupeesseventeen thousand three hundred and sixty five only)from the date of suit till the deposits are made beforethe lower Court. On such deposits, the respectivesharers are permitted to withdraw the same withoutwaiting for finalisation of the final decreeproceedings. It is made clear that R5 to R10-the legalrepresentatives of D5, are deemed to have stepped intothe shoes of the vendor of D5, corresponding to theshares allotted to them as per this judgement anddecree. (c) The parties are at liberty to file necessaryapplication for getting assessed the future income from https://hcservices.ecourts.gov.in/hcservices/ the date of the suit till their respective portions aredivided and allotted. However, I make it clear thatduring the final decree proceedings, the parties are atliberty to adduce evidence relating the income derivedfrom the suit properties, as well as to the fact as towho should pay in favour of whom the mesne profits. Theparties are directed to bear their own respective coststhroughout.This appeal is ordered accordingly. No costs.Sd/-Deputy Registrar./true copy/Sub Asst. Registrar.MskToThe II Additional Subordinate Judge, Coimbatore1 cc to Mr.P. Veeraraghavan, SR. 43899A.S.No.981 of 1993RL (CO)kk 3/11