Dorairaj v. Doraisamy

cents only in the said land, which belonged toPallikoodathan. No crops could be cultivated in that landand it was not an income yielding property.(iii) The suit items 15, 27, 29, 30, 32, 44, 67 and 69were purchased by D2 for and on behalf of his children fromthe minor children of the deceased Chidambaram representedby D1, who is the guardian for the Chidambaram's minorchildren.(iv) The rest of the suit properties belonged to D1 ashe purchased it from out of his own income and they are notthe joint family properties. Without any rhyme or reason,the plaintiff' in the plaint simply described all the suitproperties as joint family properties.(v) D1 sold to D2, the suit items, 1 to 7, 9 to 13,16, 18, 19, 20 to 25, 31, 33 to 41, 52, 54 to 60, 63 andother items under three sale deeds so as to meet his medicalexpenses and for his own future maintenance.(vi) Accordingly, he prayed for the dismissal of thesuit.4. D2 filed the written statement reiterating the contentionsas put forth by D1 virtually. Over and above that he would alsocontend as under:(i) D2 also discharged D1's debts due payable by D1in favour of Lakshmanasamy Reddiar of Perambalur and RiceMill Ponnusamy of Perambalur. D2 also discharged thesundry hand loan debts due payable by D1 in favour ofvarious debtors to the tune of Rs.10,000/-. D2 is acontractor and earned money and with that he purchasedvarious items of the suit properties.(ii) Accordingly, he prayed for the dismissal of thesuit.5. The gist and kernel of the written statement filed by D3 toD7 would run thus:D3 to D7 are the legal heirs of deceased Rajakannu,the one of the sons of D1 and as such, they claim 1/3 rdshare in the suit properties. Pithily and precisely statingthey sail with the plaintiff in this litigation.6. A summation and summarisation of the written statement filedby the defendants 9 to 14 would run thus: https://hcservices.ecourts.gov.in/hcservices/ (i) D9 to D14, being the children of D2 wouldreiterate the case as put forth by D2 and pray for thedismissal of the suit by also contending that D1 during hislife time executed an unregistered Will dated 24.11.1989bequeathing his properties in their favour.(ii) Accordingly, they prayed for the dismissal of thesuit.7. The reply statement and the additional reply statement filedby the plaintiff would be by way of denying and refuting,remonstrating and challenging the averments/allegations in thewritten statements filed by D1, D2 and D9 to D14.8. The trial court framed the issues. During trial, theplaintiff examined himself as P.W1 and no documentary evidence wasadduced on his side. On the defendants' side, D.Ws.1 to 4 wereexamined and Exs.B1 to B206 were marked. Ultimately the trial Courtdecreed the suit allotting ¼ th share in favour of the plaintiff inall the suit properties excluding the following items viz., 15, 27,28, 29, 30, 32, 44, 67, 69, 26, 31, 1 to 7, 9 to 13, 18, 19, 20, 22to 25, 31, 33, 40, 36, 39, 41, 52, 55, 57, 60 and 63 respectively.9. Being disconcerted and dissatisfied with the judgment ofthe trial court, the plaintiff filed appeal in A.S.No.160 of 1994before the I Additional District Judge, Tiruchirapalli and D3 to D7preferred appeal in A.S.No.161 of 1994 before the same Court andboth the appeals were heard together and the Appellate Court modifiedthe judgment of the trial court and granted the reliefs holding thatthe suit properties are all joint family properties and that theplaintiff is entitled to 5/16th share and the defendants 3 to 7 areentitled to another 5/16th share in all the suit properties.10. Animadverting upon the common judgment passed by the firstAppellate Court, these two second appeals have been focussed by thesecond defendant almost on similar grounds, the gist and kernel ofthem would run thus:(a) The first Appellate Court committed error inholding that the suit properties are the joint familyproperties.(b) Item Nos.14 and 15 are the ancestral propertiesand other items of the suit properties are not at all to betreated as joint family properties.(c) The first Appellate Court failed to take intoconsideration that even those items 14 and 15 have been inwater logged condition throughout the year fetching noincome. https://hcservices.ecourts.gov.in/hcservices/ (d) The items 15, 27, 28, 30, 22, 44, 67 and 69belonged to deceased Chidambaram and in connection with thedischarge of the debts incurred by Chidambaram, thoseproperties were sold by D1 as guardian of the children ofdeceased Chidambaram in favour of the children of D2represented by D2 after obtaining court order.(e) In the absence of evidence, the first AppellateCourt should not have granted the reliefs prayed by theplaintiff and the defendants, viz., D3 to D7.(f) No documentary evidence at all were produced by theplaintiff and based on the ipse dixit of the plaintiff, thefirst Appellate Court decreed the suit and allowed both theappeals.(g) Without considering the evidence on thedefendants' side, including the voluminous records, thefirst Appellate Court wrongly decided the appeals.(h) The first defendant had independent contractbusiness and pawn broker business; but that was notconsidered by the lower court. There was no joint status atall among Sengan and his three sons and they were livingseparately having separate income. But those facts have notbeen considered by the first Appellate Court.(g) The factum of D1 having been taking treatment inseveral hospitals for which D2 incurred expenses were notconsidered by the first Appellate Court.(h) The onus of proof was on the plaintiff to provehis case that the properties are joint family properties;but he failed to do so;(i) Even though the first Appellate Court ignoring thelaw relating to the burden of proof, granted the prayer ofthe plaintiff, the factum of plaintiff, being in possessionof item Nos.14 and 15 by grazing cattle there, was notconsidered by the first Appellate Court.(j) The original plaint was a cryptic one and did notcontain any particulars. (k) From item Nos.14 and 15, no income was derived.Under such circumstances, the remaining items could not havebeen purchased from out of the income derived from theancestral property and as such, the properties should nothave been treated as joint family properties by the firstAppellate Court. https://hcservices.ecourts.gov.in/hcservices/ (j) Accordingly, he prayed for setting aside thejudgment and decree of the first Appellate Court.11. My learned Predecessor at the time of admitting both thesecond appeals, framed the following substantial question of law:"Whether the lower Appellate Court is correct inpassing a decree for partition in the absence of anyevidence, both oral and documentary to establish that thefamily was living jointly and the acquisition was by jointefforts?"12. At the time of hearing, I felt that the substantialquestions of law as framed supra is not sufficient and thesubstantial questions of law have to be formulated as under, whichwould infuse in them the aforesaid earlier framed substantialquestion of law also. "1. Whether the first appellate Court was justified inholding that all the suit properties are joint familyproperties even though there are various documents markedon the defendants' side pointing out that the individualmembers of the family concerned have purchased variousitems of the suit properties and that too in the wake ofalleged absence of income bearing joint family nucleus?2. Whether the first appellate Court properly appliedthe law relating to burden of proof, in the alleged absenceof any evidence to prove that there were sufficient jointfamily income to purchase the properties in the name of D1? 3. Whether the properties purchased by Sengan-thekartha of the Hindu joint family should be treated as thejoint family properties and whether the alienations made bythe said kartha and the purchase of the other propertiesfrom out of such sale proceeds would constitute jointfamily properties?4. Whether the first appellate Court was justified indisbelieving the Will, in the wake of alleged clinchingevidence placed on the side of the propounders of the Will? 5. Whether there is any perversity or non-applicationof law in interpreting the oral and documentary evidence inconsidering the Will as well as the other Exhibits?6. Whether the property acquired under Ex.B2 wasunjustifiably treated as joint family property by the first https://hcservices.ecourts.gov.in/hcservices/ appellate Court, in the absence of any clinching evidenceand in ignoring the relevant court order?"13. Both sides took notice of those additional formulation ofsubstantial questions of law and submitted their respective argumentsetc.14. During the pendency of the second appeals, C.M.P.Nos.121and 122 of 2009 were filed for impleading as many as three persons,viz., Suresh Kumar, R.Mangayarkarasi and R.Alagi as proposedrespondents 13 to 15 in the respective two second appeals on almostone and the same following grounds:(i) The petitioners in those C.M.Ps.are the legalheirs of deceased Rajakannu, one of the sons of deceasedD1. Deceased Rajakannu died on 29.06.1989 leaving behindthe following persons: 1. Mrs.Dhiraviyam2. Mrs.Pavunammal3. Mrs.Rajamani4. Mrs.Sakthi5. R.SureshKumar6. Mangayarkarasi7. Alagi(ii) As per Section 16 of the Hindu Marriage Act,they are entitled to shares in the suit properties andthey have to be impleaded also as parties.(iii) In fact, in the land acquisition proceedings,the petitioners in these CMPs were recognised as the legalheirs of Rajakannu and they were given compensation.15. Per contra, the respondents 3 to 6 filed the counter, thesum and substance of them would run thus:(i) The petitioners in those two CMPs are not at allnecessary parties to the second appeal; Papathi D3 in thesuit was the only wife of Rajakannu and Rajakannu did notmarry Nagammal for the second time and the petitioners arenot his children.(ii) Accordingly, the petitioners in the CMPs are notentitled to be impleaded as legal heirs and in fact thesaid Nagammal married one Muthusamy and gave birth to fivechildren. Absolutely, there is no rhyme or reason forgetting themselves impleaded. By misrepresentation, thepetitioners in these CMPs got some signatures in blankpapers from the respondents and the reference to the land https://hcservices.ecourts.gov.in/hcservices/ acquisition proceedings would not be tenable for the reasonthat the petitioners played fraud and coercion on thedefendants earlier.16. The point for consideration in these two miscellaneouspetitions is as to whether the petitioners are necessary parties tothe second appeals at this stage?17. At this juncture, it is also just and necessary to refer toone other M.P.No.1 of 2009, the delay petition filed by respondents 9to 14 for getting the delay of 4294 days condoned for filing crossappeal.18. Tersely and briefly, the relevant averments, as foundexemplified in the affidavit of Achaya Gopal P4 would run thus:a) Deceased Sengan (D1) during his life time and thattoo, during the pendency of the original suit executed theWill Ex.B200 in favour of all the petitioners herein, viz.,the defendants 10 to 14, who were minors initially and nowthey attained majority. Thereafter, they had discussionwith their Advocate and understood that they could prefercross appeal. Hence, the delay occasioned. b) However, the respondent/plaintiff resisted theapplication. 19. Relating to M.P.No.1 of 2009 for condoning the delay, thepoints for consideration are as to:-(i) Whether there is any justification in condoningthe delay of 4294 days in filing the cross appeal ?and (ii) Whether the petitioners are having any right tofile cross second appeal at all?As such, the substantial questions of law formulated by this Courtand the two points for consideration framed under the C.M.P.Nos.121and 122 of 2009 referred to supra should be dealt with. 20. I would prefer to take up the points for considerationframed under M.P.No.1 of 2009 at the first instance. In thisconnection I would like to recapitulate and recollect the facts in a"resume" thus:(i) The relationship among the parties is an admittedone. However, the relationship of the petitioners inC.M.P.Nos.121 and 122 of 2009 as the legal heirs ofRajakannu alone has been disputed by D3 to D7, as they would https://hcservices.ecourts.gov.in/hcservices/ claim that they are the only legal heirs of deceasedRajakannu.(ii) Duraisamy, being one of the sons of Sengan (D1),filed the suit as against his father (D1), D2 (his brother)and the other defendants 3 to 7 (the legal heirs of deceasedRaja Kannu, one of the sons of D1), D8, the daughter of D1and D9 to D14 (the sons of D2). From the above narrationof facts, it is crystal clear that Sengan (D1) had threesons, viz., Duraisamy, the plaintiff, Durairaj, D2 thedeceased Rajakannu as his children. D3 Papathi, isindisputably and indubitably, incontrovertibly andunassailably, the legitimate wife of deceased Rajakannu andD4, D5, D6 and D7 are the children of deceased Rajakannu andPapathi. D8 is the daughter of D1. D9 to D14 are thechildren of D2. (iii) The petitioners in C.M.P.Nos.121 and 122 of2009 are claiming to be the legal heirs of deceasedRajakannu and his one other wife Nagammal. As such, theyeven place reliance on Section 16 of the Hindu marriage Actso as to claim right as the illegitimate children ofRajakannu.21. It is therefore crystal clear that the petitioners inC.M.P.Nos.121 and 122 of 2009 have to prove their relationship withRaja Kannu and their right to claim share in the property or shareof Rajakannu. It is ex facie and prima facie clear from the bareperusal of the records that the defendants 3 to 7 are fighting thislitigative battle for getting the share of Rajakannu and there is nocollusion between the parties to the main lis. In fact, theplaintiff has initiated the litigation pointing out that along withthe plaintiff, D2 Durairaj and the legal representatives of deceasedRajakannu representing the share of Raja Kannu are entitled to equalshares. It was only D1 and D2, who denied such claim by theplaintiff and the legal heirs of Rajakannu and the perusal of thejudgment of the courts below would demonstrate and display thatthere is absolutely no iota or shred, shard or miniscule, scintillaor molecular extent of evidence to evince and evidence that there wascollusion among the parties. In such a case, the petitioners whoclaim to be the children of Nagammal and that too, as illegitimatechildren of Rajakannu cannot seek for getting themselves impleaded atthe second appellate stage and set the clock back.22. Mr.T.R.Mani, the learned senior counsel appearing for D2would advance and canvass his argument to the effect that thepetitioners in C.M.P.Nos.121 and 122 of 2009 are at liberty to file aseparate suit, if they are so advised, as against D3 to D7 relatingto their share in the alleged share of Rajakannu, if at all one isallotted to them in these present proceedings. He would also clearly https://hcservices.ecourts.gov.in/hcservices/ highlight that if those petitioners are allowed to get themselvesimpleaded in the second appeal, naturally, they have to be givenopportunity to file the written statement and consequently additionalissued have to be framed and opportunity to adduce further evidencewould also arise. Certainly, that would lead to the rigmarole ofconducting once again a trial afresh, which is totally notcontemplated in law.23. I would like to agree with the arguments advanced by thelearned senior counsel for D2, in this regard.24. The analysis of the records would disclose and demonstratethat, there is no collusion in this case, wherefore the petitionerscannot contend that in a partition suit all the persons claiming tobe entitled to shares under a deceased sharer should necessarily beadded as parties as otherwise, the suit would be bad for non-joinderof necessary parties.25. I am fully aware of the legal proposition that normally ina partition suit all the sharers should be added as parties. But, itis also a well recognised common or garden principle of law that ina partition suit, if some of the legal heirs of a deceased sharer isleft out but the said sharers' rights are protected by some of hisother legal heirs then the suit is not nbad for non-joinder ofnecessary parties. It is nothing but an internecine dispute betweenthe two groups claiming under Rajakannu for which the entire processin these proceedings, which reached it finality, cannot bedestabilised or made to take a retrograde step. 26. The suit was filed in the year 1987 and it is quite obviousthat a period of 22 years has elapsed and now only they have chosento file this application for getting themselves impleaded. Eventheir averments in the affidavit accompanying the impleading petitionwould demonstrate and display that they should have and must haveknown about the litigation, even at the time of the alleged landacquisition proceedings etc, with which, we are not concerned now. 27. The learned Senior counsel for the petitioners in C.M.Ps.would cite the decision of this Court reported in AIR 1997 MADRAS 226– SHANMUGHAM AND OTHERS VS. SARASWATHI AND OTHERS – Certain excerptsfrom it would run thus:"6. ........................ Hence, the conclusion ofthe lower appellate Court that items 1 to 37 among the suitproperties which are dealt with in paragraph 5 of the Willbelonged to the plaintiffs inasmuch as they are the onlyheirs of Saravanan the son of Muruga Pandaram throughNagarammal is correct. It should be mentioned here thatteh said items were allotted to the share of the saidSaravanan in a suit for partition filed by him along withChinnathambi, who died unmarried later, that is O.S.No.46 https://hcservices.ecourts.gov.in/hcservices/ of 1933 on the file of Sub Court,Cuddalore against Palaniand Singaravelu, the sons of Pachaiammal. As there is noother heir to Saravanan, the plaintiffs who are hisdaughters are entitled to the items allotted to Saravanan'sshare. On his death, the plaintiffs being the vestedremainder holders are entitled to get those properties.Hence, the decree passed by the lower appellate Court asregards items 1 to 37 is correct.7. With reference to items 38 to 44 they areproperties purchased by Saravanan in Court auction inexecution of a part of the decree passed in his favour inO.S.No.43 of 1933 for mesne profits as against Palani andSingaravelu. It cannot be disputed that what he purchasedin court auction was the liefe estate of Palani andSingaravelu and both them being dead before this suit, thevested remainder in those properties would naturally goonly to their heirs, that is, defendants 1 to 3 and others,if any. The plaintiffs cannot claim any interest in thoseitems as the interest purchased in Court auction was only alife estate of Palani and Singaravelu. Both the Courtshave rightly negatived the claim of the plaintiffs withregard to those items. Even with regard to those items thecontention of learned counsel for the respondents is thaton the interpretation given for items 1 to 37 his clientwill be entitled to get the properties. But that is notacceptable on the face of it. If the judgment-debtor hadonly a life estate and the court auction purchaserSaravanan had purchased only the same, on the death of thelife estate holders, the vested remainder people who areadmittedly defendants 1 to 3 will get the same.8. .....................................It is furtherargued that the question of non-joinder of other sharerswas not raised in the Courts below and it cannot be allowedto be raised for the first time in second appeal. It issubmitted that the plaintiffs have claimed only the halfshare belonging to Saravanan which was allotted to him inO.s.No.453/63 on the file of District Munsif, Villupuramand the sisters of the appellants can claim a share only inthe other half share which belonged to Palani andSingaravelu.9. There is no merit in the contentions.The questionof non-joinder of necessary parties in a suit for partitioncan be raised at any time as it goes to the root of thematter. It is well settled that a suit for partition isnot maintainable in the absence of some of the co-sharers.See A.Ramachandra Pillai v. Valliammal, (1987) 100 MadL.W.486. https://hcservices.ecourts.gov.in/hcservices/

10. There is no dispute that the appellants have twosisters who are also co-sharers. Whatever conclusion isarrived at by this Court on the interpretation of para 5 ofthe Will, it will not be binding oi the sisters of theappellants even if they are impleaded as parties to thepresent suit and the trial Court is directed to give theman opportunity to file a written statement and decide thematter once again with regard to items 45 to 57. It willbe as good as having a fresh trial of the entire matter inrelation to those items. It is as if the suit has to betried once again from the beginning with reference to items45 to 57, and that will be only leading to unnecessarycomplications and keeping this suit pending forunnecessarily longer time. Hence, I am of the opinion thatit is better to leave open the question so that a freshsuit may be instituted by the plaintiffs, if so advised,with regard to items 45 to 57 claiming their shares inthose properties and all the questions including thequestion of interpretation of the last clause found in thatwill can be gone into therein. Hence, I am not expressingany opinion as to whether the condition in the last clauseis only a re-affirmation of what is stated in paragraphs 1and 2 or the last clause will be an additional conditiongiving only life estate to the sons of the testator in theproperties which are dealt with in paragraphs 1 and 2also."A mere reading of it would clearly indicate and exemplify that thesaid decision is not applicable to the facts and circumstances ofthis case, as the facts involved in this case is different from thefacts involved in the cited decision and it is quite obvious andaxiomatic.28. Here the status of the petitioners in relation to thedeceased Rajakannu is not an admitted one, but it is very much indispute and my discussion supra, is to the effect that they have toprosecute their claim in the way known to law.29. Hence, I could see absolutely, no merit in theC.M.P.Nos.121 and 122 of 2009 and accordingly,both these petitionsare dismissed with the observation that if at all, they are soadvised, it is open for them to file a fresh litigation as against D3(since died), D4, D5, D6 and D7 relating to the share of Rajakannu,which would be allotted in their favour in these proceedings. But, Imake it clear that in such a litigation, it is for the Court todecide on merits of the matter.30. Nextly, I would like to decide the points for considerationrelating to M.P.No.1 of 2009, the delay petition. The germanefacts, would run thus: https://hcservices.ecourts.gov.in/hcservices/ The trial court in the judgment did not uphold thatEx.B200 Will was a valid one enuring to the benefit of D9to D14. Accordingly, in the decree of the trial court, noshare was allotted in favour of D9 to D14 based on theWill.31. The pleadings in the plaint would unambiguously andunequivocally exemplify that even in the year 1987, D9, who was theeldest son of D2 was aged 17 years and D14 the youngest child of D2was one year old and by this time, D9 should be 39 years old and theyoungest D14 should be 23 years old and that itself would besufficient to reject the contention of the petitioners that now onlythey attained majority and that as though as they had discussion withtheir counsel and wherefore decided to file cross appeal. As such,the ground set out in the affidavit accompanying the petition forgetting the delay condoned is turned out to be false and untenable.D2, who is contesting tooth and nail the proceeding all along hasbeen representing a few minors and in such a case, they cannot beheard to contend that they did not have had enough ability to notethe things and happenings file appeal or cross appeal, as the casemay be, in time. 32. It is quite obvious and axiomatic from the very date of thefiling of this M.P.No.1 of 2009 that it was only filed on 19.01.2009,which means that the second appeal itself has been pending forseveral years and that they have not chosen to file this applicationearlier and only now and that too only after the commencement of thehearing in the second appeal, this petition has been filed. As such,the learned counsel for the plaintiff would appropriately andappositely, correctly and convincingly point out that such anapplication should be dismissed in limini.33. It is a fact that as against the order of the trial courtin not giving any benefit under the Will, in favour of the defendantsconcerned, they did not prefer any appeal and such a finding relatingto the rejection of the Will by the trial court was not agitated byD2 also. In fact, only the plaintiff and D3 to D7 preferred appealsbefore the Appellate Court and it amounts to D2 and his sons D9 toD14 having accepted the judgment of the trial court fully.34. The Appellate Court, modified the judgment of the trialcourt to the detriment of D2; whereupon only D2 alone filed thesecond appeals, because there were two appeals decided by the trialcourt. In fact, these two second appeals were one and the same andhe could have even filed only one second appeal. D9 to D14 are thechildren of D2 and it was D2, who represented them all along in thelitigation. Hence, in such a case, they cannot be heard to contendthat because of their minority they could not file the cross secondappeal on time. Further more, the first Appellate Court in no waymodified or changed the rejection of the Will, by the trial court. https://hcservices.ecourts.gov.in/hcservices/ Hence, in such a case, there is no scope for the petitioners/D9 toD14 to file second cross appeal at all as virtually D2 and hischildren were satisfied with the findings of the trial court inrejecting the Will. 35. However, the learned senior counsel for D2 would by way ofassisting the court would advance his argument to the effect that hadthe Appellate Court not framed the point for consideration regardingthe Will Ex.B200, then the matter would be different; but theAppellate court even though it was not called upon to frame a pointfor consideration regarding the Will, which was already rejected bythe trial court, framed such a point and decided in conformity withthe trial court's order and hence, the defendants 2 to 9 are havingthe right to prefer second appeal.36. I cannot countenance such an argument and uphold it forthe reasons cited supra that D2 as well as his children weresatisfied with the rejection of the Will by the trial court and theAppellate Court, even though framed suo motu a point forconsideration, ultimately, it confirmed the rejection of the Will bythe trial court.37. The learned counsel for the plaintiff would cite thefollowing decision of the Honourable Apex Court reported in AIR 1978– SC - 1201 – BINOD BIHARI LAL AND OTHERS VS. RAMESHWAR PRASAD SINHAAND OTHERS, an excerpts from it would run thus:"2. So far as the bakasht lands are concerned, apartfrom the fact that the findings of the two courts below areconcurrent and unassailable, there is a furtherinsurmountable difficulty in the way of the appellants inthat they had not filed any appeal or cross-objection in theHigh Court challenging the decision of the trial Court whichwas adverse to them in regard to this property."The aforesaid decision operates against the petitioners case for thereason that they failed to challenge the judgement of the trial Courtbefore the appellate Court, which Court also confirmed the findingsof the lower Court, and wherefore, now the petitioners cannot agitateby attempting to file a cross-second appeal. 38. Hence, in such a case, the question of filing second appealat this stage would not arise and that too, there is also enormousdelay, which is not an accidental one and it has occurred because oftheir intention not to place reliance on the Will and that importantfactor, so to say, the animus not to dispute the Will on the part ofD2 and D9 to D14 cannot be lost sight of.40. Accordingly, M.P.No.1 of 2009 filed for getting the delaycondoned in filing the cross appeal is dismissed. https://hcservices.ecourts.gov.in/hcservices/

41. Substantial questions of law Nos.1 to 3 are taken togetherfor discussion as they are inter linked and inter-woven, entwined andinter-linked with one another. 42. Axiomatically and obviously in this case, Hindu law has tobe applied. It is therefore just and necessary to recollect and callup the relevant case laws on the subject.(i) AIR 1954 SC 379 (Srinivas Krishnarao Kango vs. Narayan DevjiKango and others). An excerpt from it would run thus:"8. Proof of the existence of a joint family does notlead to the presumption that property held by any member ofthe family is joint, and the burden rests upon anyoneasserting that any item of property was joint to establishthe fact. But where it is established that the familypossessed some joint property which from its nature andrelative value may have formed the nucleus from which theproperty in question may have been acquired, the burdenshifts to the party alleging self-acquisition to establishaffirmatively that the property was acquired without the aidof the joint family property.10. Whether the evidence adduced by the plaintiff wassufficient to shift the burden which initially rested on himof establishing that there was adequate nucleus out of whichthe 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 the nucleusyields. A building in the occupation of the members of afamily and yielding no income could not be a nucleus out ofwhich acquisitions could be made, even though it might be ofconsiderable value. On the other hand, a running business inwhich the capital invested is comparatively small mightconceivably produce substantial income, which may well formthe foundation of the subsequent acquisitions. These are notabstract questions of law, but questions of fact to bedetermined on the 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 made https://hcservices.ecourts.gov.in/hcservices/ without 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, and thesmall income derived from them must have been utilised forthe maintenance of the members of the family, whether itwere held that the plaintiff had failed to discharge theburden which lay on him of establishing sufficient nucleus,or that the defendants had discharged the burden ofestablishing that the acquisitions were made without the aidof joint family funds, the result was the same." 43. 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 light ofthe 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 of specificproperty to each one of them which is described as“division by metes and bounds”. A member need not receiveany share in the joint estate but may renounce hisinterest therein, his renunciation merely extinguisheshis interest in the estate but does not affect the statusof the remaining members vis-a-vis the family property. Adivision in status can be effected by an unambiguousdeclaration to become divided from the others and thatintention can be expressed by any process. Thoughprimafacie a document clearly expressing the intention todivide brings about a division in status, it is open to aparty to prove that the said document was a sham or anominal one not intended to be acted upon but wasconceived and executed for an ulterior purpose. But thereis no presumption that any property, whether movable orimmovable, held by a member of a joint Hindu family, isjoint family property. The burden lies upon the personwho asserts that a particular property is joint family https://hcservices.ecourts.gov.in/hcservices/ property to establish that fact. But if he proves thatthere was sufficient joint family nucleus from and out ofwhich the said property could have been acquired, theburden shifts to the member of the family setting up theclaim that it is his personal property to establish thatthe said property has been acquired without anyassistance from the joint family property."44. 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 same decisionhighlights one other important proposition of Hindu law that there isa presumption under the Hindu law that the family is a joint 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 such titlein the member and pleads that they should also be broughtto the hotch-pot ought to establish by cogent and matureevidence that there was enough surplus income which wasavailable in the joint family and which positively could bethe foundation for such annexures made by one or the otherof the members of the joint family. In all cases definiteproof is required that the further purchase in the names ofjoint family members ought to have been made and could nothave been made otherwise than from the surplus income ofthe family. For a greater reason the rule is made strictin the case of properties in the name of female members.The fact that a female member in a joint family hasproperties in her own name would not necessarily lead tothe conclusion that the origin of such properties should betraced to the joint family or to the income from the jointfamily, inasmuch as the stridhanam property of a female andpossession of property by her have been recognised fromancient 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. https://hcservices.ecourts.gov.in/hcservices/

45. 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 when hewas 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. 46. Over and above that, the learned Senior counsel for the D2would cite the following decisions:(i) A.I.R. 1929 PRIVY COUNCIL 1 – K.L.S.V.E.ANNAMALAI CHETTY vs.K.L.S.V.E.SUBRAMANIAN CHETTY AND OTHERS:This decision is on the point that the burden of proof is on theplaintiff to prove his contention in the partition suit andabsolutely there is no quarrel over such a proposition and adheringto it alone, the case is being adjudged.(ii) A.I.R.1952 SUPREME COURT 225 – GUR NARAIN DAS AND ANOTHERVS. GUR TAHAL DAS AND OTHERS This decision is on the point that when two brothers are livingseparately and also sharing the income in halves, the division instatus could be apparent. However, in this case, the facts aredifferent as D1 and D2 lived together and only the plaintiff wasliving away from them. But the ancestral properties remainedundivided.(iii) A.I.R.1929 PRIVY COUNCIL 13 – PEDDI REDDI JOGI REDDI VS.PANEM CHINNABBI REDDI AND OTHERS:This decision is on the point that a co-parcener can have self-acquisition and as such there could be no quarrel over such aproposition and it is for the plaintiff, who pleads that the propertypurchased by a co-parcerner belongs to joint family, to prove thesame.(iv) A.I.R.(34) 1947 PRIVY COUNCIL 189 – APPALASWAMIV.SURYANARAYANAMURTI AND OTHERS:This precedent is also on the same point referred to supra.(v) AIR 1984 – SUPREME COURT 1171 – KUPPALA OBUL REDDY VS.BONALA VENKATA NARAYANA REDDY (DEAD) THROUGH LRS.This decision is on the point that simply because there is Hindujoint family, there is no presumption that joint family possess joint https://hcservices.ecourts.gov.in/hcservices/ family property. Absolutely there could be no second thought oversuch a proposition.(vi) AIR 2003 SUPREME COURT 2800 – D.S.LAKSHMAIAH AND ANOTHERVS. V.L.BALASUBRAMANYAM AND ANOTHER :This precedent is on the point that the burden of proof is onthe co-parcener who pleads that the property, standing in the name ofone other co-parcener, is not his self-acquired property, but jointfamily property and it is a well settled proposition, in view of theseveral other precedents cited supra.(vii) A.I.R.1954 SC.379(Vol.41, C.N.92) – SRINIVAS KRISHNARAOKANGO VS. NARAYAN DEVJI KANGO AND OTHERS:This decision is also on the very same point cited supra.(viii) AIR 1969 SUPREME COURT 1076 – MUDIGOWDA GOWDAPPA SANKHAND OTHERS VS. RAMCHANDRA GOWDA SANKH:This precedent also reiterates the aforesaid propositions.47.A plain perusal of those precedents would unambiguously andunequivocally highlight and spotlight the fact that if a propertystands in the name of a co-parcener, who is not a kartha of thefamily, the onus of proof is on the person who pleads that the saidproperty which was purchased by the individual co-parcener is also ajoint family property and for that, he has to prove that the jointfamily had income bearing joint family property, so as to enable theindividual member to purchase the property concerned from out of thejoint family funds, whereupon only the onus would get fobbed off onthe individual co-parcener to prove that from out of his own sourceof income without the assistance of joint family income, he acquiredthe property concerned as his separate property.48. In this case, both the Courts below gave concurrent findingthat joint family existed among D1 and his three sons, namely,Doraisamy (plaintiff) and Durairaj (D2) and the deceased Rajakannu.49. At this juncture, I call up and recollect the decisionreported in AIR 1987 Madras 24- P.KALIAPPA GOUNDER AND ANOTHER V.MUTHUSWAMI MUDALIAR in respect of the joint family status andcertain 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 in specie. https://hcservices.ecourts.gov.in/hcservices/ Joint ownership turns into ownership in severalty and inspecie. It is true that 'partition' is not a transfer.But there must be the element of conversion as the jointownership into ownership in severalty and in specie.Therefore, the essence of partition is that the jointownership is put an end to and the joint owners come tohold the property in severalty and each in his ownindividual right. In this country, it is common that notonly coparceners of a joint Hindu family but alsoindividuals join or continue together to own property incommon. If this common ownership is to be put an end tonot only in theory but also in practice, there must beprimarily severance of the joint ownership in the eye oflaw, 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 of anintention to separate to bring about division in statusin a joint Hindu family. It is not unusual for partiesholding properties jointly or in common to have separateenjoyment of portions for the sake of sheer convenience.But such separate enjoyment of convenience cannot beequated to partition in the eye of law and in fact, so asto say that the joint ownership has been put an end toand in its place ownership in severalty or in specie hascome into existence. Separate enjoyment for the sake ofconvenience is one thing and partition in the eye of lawis 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 there wasin fact a partition or a division of the commonproperties as between the parties in the eye of law. Thefeatures which Mr.T.S.Subramanian, learned counsel forthe defendants, brings to our notice are not adequate inlaw to support the theory of 'partition'. Learnedcounsel would state that the parties are admittedly inpossession of different portions; the plaintiff inpossession of the southern portion and the defendants inpossession of the northern portion. Learned counselfurther states that the defendants have deepened the wellin their portion and have put up a motor pump set andthere is also an underground pipe line in their portion,which exclusively serves the requirements of thedefendants and this is the finding of fact rendered bythe Court below. Learned counsel would also urge that onthe basis of certificate of ownership, the parties, both https://hcservices.ecourts.gov.in/hcservices/ the plaintiff and the defendants, have obtained loans forthe purpose of deepening the wells in the portions intheir enjoyment. In our view, these features are notunusual even in the case of common ownership in the eyeof law along with separate enjoyment of specifiedportions for the sake of convenience. They could be inconsonance with the admitted enjoyment of separateportions by the parties, explained by the plaintiff asone for the sake of convenience. We could not spell outthat the joint ownership as such was put an end to and inits place the ownership in severalty and in specie cameinto existence. 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 and consequentlya separate ownership long prior to these alienations, asclaimed by the defendants, the parties would not haveomitted to make a specific reference to the same. Such arecital which is not only a natural one but also anabsolutely necessary one, is conspicuously absent in allthe title deeds under which the defendants claim right tothe suit properties. Admittedly, there was no mutationand no separate payment of kist. None of the documentsrelied on by the defendants reflects or speaks aboutdivision at all."50. It is a trite proposition of law that unless there isperversity or non-application of law in interpreting the evidence,the question of interfering with the finding based on facts does notarise. As such, both the Courts below, after due discussion based onthe evidence available, arrived at the conclusion that there existedthe joint family among them.51. Indubitably and indisputably items 14 and 15 measuring anextent of 2.47 acres, happened to be the ancestral property, so tosay, the said property originally belonged to Pallikoodathan-thefather of D1. According to the plaintiff the ancestral property wasyielding good income and from out of the income derived from suchancestral property, the other properties were acquired by D1-thekartha of the co-parcenary, which comprised of D1 and his said threesons, namely, the plaintiff, D2 and the deceased Rajakannu.52. Whereas D2 would contend that those ancestral propertieswere not fetching any income, as they were always in water loggedcondition, permitting no cultivation, but it was used only forgrazing cattle. 53. Both the Courts below on this aspect considered theevidence and held that income was derived from the said ancestral https://hcservices.ecourts.gov.in/hcservices/ property. The trial Court by referring to the oral and documentaryevidence held that from the ancestral property, income was generatedand D1 was working as sub-jail contractor and also a prominent personin the village and earned money and as kartha of the family heacquired the various items of properties in his name and that thoseproperties should be treated as joint family properties. The firstappellate Court also gave a finding that the properties acquired inthe name of D1, as the kartha of the family, should be treated asjoint family properties.54. The trial Court also referred to the deposition of D.W.1(D2) and gave a finding of fact that D2 was studying up to 1966. Infact, he studied B.A.during the period between 1963 and 1966 in JamalMohamad College, Trichy. 55. A plain reading of the lower court's judgment wouldexemplify and disclose that D2 as D.W1 detailed and delineated thatduring the period between 1920 and 1930, his father D1 was earning asum of Rs.9/- per month by assisting the Sub Inspector of Police inhis equestrian practice, so to say, horse riding; thereafter, hestarted earning a sum of Rs.10/- per month by working in surveyoffice and still thereafter, D1 worked in the Forest Department.56. It is also the contention of D2 as DW1 that D1 wasfunctioning as Village Munsif for one year and also Panchayat Boardmember. As per DW1 (D2) during the period between 1968 and 1984, D1worked as Sub Jail Contractor as revealed by Exs.P33 to Ex.P40. Assuch, the sum and substance of the deposition of DW1 (D2) is to theeffect that his father purchased properties from out of his ownincome and not from the income derived from the ancestral properties.57. At this juncture, the argument of the learned counsel forthe plaintiff deserves to be considered for the reason that he wouldput forth and set forth the contention that simply because, D1 Senganis stated to have earned some amount, that does not mean that whatare all he earned should be construed as sufficient fund forpurchasing the various items of suit properties, without the aid ofthe income derived from the ancestral properties.58. According to the plaintiff's side, the salary alleged tohave been obtained by D1 might not have been sufficient to meet thebasic necessaries of life and in such a case, it cannot legally bepresumed that Sengan after meeting the necessaries of life towardshimself and his family members, had saved sufficient money andpurchased properties without the assistance of the income from thejoint family.59. Whereas the learned Senior counsel for D2 would argue thatin those days, one sovereign of gold was purchased for bare Rs.13/-(Rupees thirteen only) only and that in such a case, the argument as https://hcservices.ecourts.gov.in/hcservices/ put forth on the side of the plaintiff could not be countenanced andupheld as correct. I would prefer to hold that there is considerableforce in the submission made on the plaintiff's side because, as perthe evidence of DW1 himself, during the period 1920-1930, D1 startedearning at Rs.9/- or Rs.10/- per month. In fact, DW1 himself couldnot have personal knowledge about it as he was born only during theyear 1938 and he was only a student of B.A., during the periodbetween 1963-1966 and in such a case, he cannot be taken as acompetent witness to speak about the financial wherewithal of D1during the period between 1920 and 1930 and even thereafter when D1acquired by purchase, the various items of the suit properties.60. It is a trite proposition of law that preponderance ofprobabilities would govern the adjudication in civil cases. But, inthis case, the deposition of DW1 cannot be taken even as oneprojecting the preponderance of probabilities as no elderly relativeof the family was examined so as to highlight and spotlight as towhat was the financial status of D1 at the relevant time. 61. No doubt, on the plaintiff's side, except the plaintiff,who examined himself as PW1, no other oral evidence and for thatmatter, no documentary evidence was adduced. In a partition suit, ifthe plaintiff could prove the circumstances, it is quite obvious andaxiomatic that from the admitted facts and the documents, which arefiled on the defendant's side, a decision could be arrived at.62. It is a common or garden principle of law that in apartition suit, the plaintiff is the defendant and vice versa. It isthe contention of D2 that the ancestral properties, viz., item Nos.14 and 15 did not fetch any income at all as they were in a waterlogged condition always. In order to buttress and fortify such aspecific plea as put forth on the side of D2, no revenue officialwas examined or no record from the Government's side was alsoproduced. No doubt, the suit emerged in the year 1987 and trial wascommenced subsequently; even then no evidence has been caused to beproduced from the Revenue Department to speak about the nature andcondition of those items 14 and 15. But, on the other hand, thetrial court placing reliance on Exs.B201 to B206, the revenue recordswould give a categorical finding that there are four wells and twomotor oil engines in the suit item Nos.14 and 15, which are theancestral properties bearing survey Nos.557/2 and 565/2.63. A plain reading of those exhibits would demonstrate anddisclose that in those ancestral properties, cultivation was carriedon during the fasli years 1390, 1391, 1392, 1393, 1394 and 1395.This portion of the documentary evidence coupled with the oralevidence of PW1, torpedoes and pulverises the very bedrock of thetheory of D2 and his descendants that absolutely, there was no incomederived from the ancestral properties. https://hcservices.ecourts.gov.in/hcservices/

64. Once it is established beyond doubt that there existedincome generated nucleus of sufficient extent, so to say, in thiscase, 2 acres and 47 cents ,it cannot be assumed or presumed that asclaimed by D2 (DW1) that D1 purchased various other items ofproperties without the assistance of the income from the joint familynucleus. Wherefore, I hold that the entire edifice of the D2's casefalls to the ground and both the courts below correctly held that theproperties, which Sengan (D1) acquired in his name, all happened tobe the joint family properties as he happened to be the kartha of theco-parcenery.65. At this juncture, I would like to recollect and call up thescope of Section 100 of the Code of Civil Procedure that if at allthere is any perversity or non-application of law on the part of boththe courts below in rendering such categorical finding relating tothe fact that D1 acquired the properties in his name as Kartha of thefamily with the help of joint family nucleus, the question ofinterference would arise. But, my discussion supra would reveal thatboth the courts below after delving deep into the factual scenario,as detailed and delineated before them, arrived at the consistentfinding, warranting no interference.66. I would also like to point out that if the Kartha of theco-parcenery family by doing some job earns and also getting incomefrom the joint family nucleus and purchased properties, the other co-parceners, in that co-parcenery, are entitled to treat the propertiesso purchased as joint family properties and as such the other co-parceners cannot be driven from pillar to post to gather evidence andprove with mathematical precision as from which income derived onwhich date or month, the properties claimed to the joint familyproperties were purchased by the kartha.67. The learned senior counsel for D2 would contend that therewas no joint living at all as Raja Kannu was treated as a prodigalson by D1 himself and hence, Raja Kannu was not living with D1; theplaintiff was also not living under one roof with D1; there weresales among brothers and in such a case, even by phantasmagoricalthoughts, it cannot be visualised that there existed joint familystatus among them; in such a case, the properties purchased by D1 andalso the sales effected by him subsequently, all would not begoverned by the law relating to joint family properties and that theplea of joint family is a myth.68. Pithily and precisely, according to the contention of D2,the properties purchased by D1 and the properties acquired by D2 areall self-acquired properties of those respective persons. At thisjuncture, I would like to point out that my discussion supra woulddemonstrate that D1 happened to be the father of his three sons andhe had income bearing joint family nucleus as cited supra and thoseancestral properties were not divided at all. In such a case, simply https://hcservices.ecourts.gov.in/hcservices/ because D1 was living with D2 under one roof and other sons might notbe living with him would not constitute division in status as forconvenient living, some of the co-parceners are living separately.69. It is a trite proposition of Hindu Law that they cannot betreated as divided co-parceners. I can go even one step further tohold, that the Hindu Law is so well settled, that even if there isseparate enjoyment of various items of properties, for convenientenjoyment, still, it would not amount to partition of the jointfamily properties and division in status and unless the animus toget themselves divided is explicitly established by the person, whopleads division in status, a joint family or co-parcenery cannot betaken as divided.70. In respect of the contention of D2 and his descendants,that there were various items sold and purchased by the deceased RajaKannu and the plaintiff, I would like to point out that there is noindication that the recitals in those deeds refer to any of theirdivided status. It is also the contention of D2's side that theplaintiff has not chosen to include the properties alienated already. 71. At this juncture, I would like to point out that simplybecause, the plaintiff refrained from adding some of the propertiesalienated already by D1, that would not be fatal to the case of theplaintiff and the plaintiff could restrict his claim also and it isquite obvious and axiomatic, warranting no elaboration.72. However, certain points have to be noted from the availabledocuments.a) Ex.B155, which is a sale deed dated 04.09.1969would reveal that the deceased Raja Kannu son of D1purchased a plot with tiled house for a sum of Rs.2,000/-from Ponnusamy, the son of deceased Chidambaram , who wasthe brother of D1. The said Ponnusamy on his behalf and onbehalf of some of the minors also executed such a saledeed. The question might arise as to whether, thisproperty also should be added in the partition. The said Ponnusamy was not a co-parcener and in such acase, if D2 wants that property also should be added in theevent of partition, then he should have established thatthe funds for purchasing those properties flowed from theincome earning joint family nucleus for Raja Kannu topurchase it from Ponnusamy. But, there is no evidence tothat effect. Simply because, one of the co-parcenerspurchased the property under Ex.B155, there is nopresumption that it should be added as a joint familyproperty. https://hcservices.ecourts.gov.in/hcservices/ b) Ex.B156, is the sale deed dated 09.09.1969, whichwould connote that the said Raja kannu purchased propertiesfrom Ponnusamy and others and the suit properties referredto therein would in no way would show that it belong to theco-parcenery property of D1 and his sons and as such, thesaid property referred to in Ex.B156 cannot be treated as ajoint family property, liable for partition.The sameratiocination adhered to for deciding the matter relatingto Ex.B155 also would be applicable to Ex.B156.c) Ex.B7 is the sale deed dated 22.02.1979, under whichthe said Raja Kannu purchased from Ponnusamy and others,item Nos. 64 and 65 of the suit properties. However, theplaintiff added those items 64 and 65 also for being,partitioned and Raja Kannu's legal heirs did not raise anyobjection to it and in such a case, this court need notexclude those items from partitioning ,as they voluntarilyput it into the common hotch pot for partition.d) Exs.B4, B5 and B16 do deserved to be consideredtogether:The recitals in Exs.B4, B5 and B16 would reveal thatSurvey Nos.289/6B is contemplated in all the three deeds,but different moieties are the subject matter of sales; theantecedent title deed is not found spelt out; however, it isclear that in Survey No.289/6B, there was a large item,which originally belonged to D1's father Pallikoodathan andin the partition among the sons of Pallikoodathan, the saidlarger extent was divided into moieties and the moiety,which was given to Natesan was sold to the plaintiff underEx.B5, the sale deed dated 19.06.1972; but the plaintiff hadput it into the common hotch pot for division as alreadyreferred to supra.e) Ex.B4 is the sale deed dated 08.11.1974, executed byRaja Kannu one of the co-parceners in favour of one otherco-parcener, the plaintiff. Wherefore, it is crystal clearthat the said moiety referred to in Ex.B4 is in the saidlarger extent, which originally belonged to Pallikoodathan.In such a case, the properties referred to in Ex.B4 shouldbe put into common hotch pot for partition, if not alreadyincluded in the suit properties.At this juncture, I would like to point out that from adeep scrutiny of various documents and the description ofproperties therein, I could find that there arediscrepancies and it appears that the parties litigatedkeeping in mind the realities and the identities. Themoiety referred to in the larger plot, presumably should be https://hcservices.ecourts.gov.in/hcservices/ in some of the items of plots found set out in item Nos.70to 73 of the suit properties. If that is not so added,during final decree proceedings, the moiety contemplated inEx.B4 should be added, as one co-parcener cannot, in thisfactual matrix simply sell in favour of another co-parcener,the undivided joint family property and it is quite obvious.f) Ex.B16 is the sale deed dated 04.01.1971, executedby Mookayee in favour of D2 Durairaj, selling item No.74 ofthe suit properties. As such, applying the same standardfor deciding the right of Raja Kannu, relating to theproperties purchased by him under Exs.B155 and B156, theright of D2 as per Ex.B16 relating to item No.74 of the suitproperties has to be adjudged. D2, purchased item No.74 ofthe suit properties from Mookayee, who was not a co-parcener of the suit properties and D2 was also not thekartha of the family. D8,being the daughter of D1 mighthave been given with right over that moiety by others who donot challenge it and in such a case, item No.74 of the suitproperties should be exonerated from being partitioned.g) Ex.B10 is the sale deed dated 13.06.1968 executed byone Thangavel in favour of D2 Durairaj, an item of the suitproperty and it is not part of the suit properties and itwas correctly, not added as the suit property because, thereis nothing to indicate that Durairaj purchased any undividedjoint family property of the same co-parcenery.h) Ex.B73 is the sale deed dated 19.01.1970 executed byChinnakattayan in favour of D2 and the same remarks offeredfor Ex.B10 are applicable to Ex.B73 also.i) Ex.B15 is the sale deed , which one Muthaloo Ammalexecuted in favour of D2,(The reference to Ex.B15 as thoughit is a sale deed executed by D8 is not correct in the trialcourt's judgment) which is not relating to the suitproperty and the same remarks offered for Ex.B10 areapplicable for this exhibit also.j) Ex.B14 is the sale deed dated 21.03.1984 executed byMuthaloo Ammal in favour of Durairaj (D2) and it is notfound to be the suit property and it should be treated onpar with Ex.B10.k) Ex.B75 is the sale deed dated 29.08.1989 executed byPonnusamy and Velumani in favour of Durairaj (D2) selling anextent of 4 cents out of 12 cents in item No.36 of the suitproperties and also item No.66 of the suit properties. Assuch, the properties covered under Ex.B75 did not form partof the co-parcenery concerned in this case, wherefore, the https://hcservices.ecourts.gov.in/hcservices/ property purchased by D2 as per Ex.B75 should be excludedfrom partition.l) Ex.B76 is the sale deed dated 19.04.1991 executed byMaruthamuthu in favour of D2 selling certain properties,which are not suit properties and the same remarks offeredto Ex.B10 would also be applicable to this exhibit.73. By way of responding to the arguments advanced by thelearned Senior counsel for D2, the above exercise has beenundertaken by me and culled out as to how both the courts below tothe limited extent have not properly porred over and perused therecords and documents and analysed, by applying the law to theaforesaid extent.74. Ex.B3 is the sale deed dated 24.08.1963, under which D1 andhis three sons, viz., (i) deceased Raja Kannu, (ii) the plaintiff and(iii) D2 all joined together and sold some of the joint familyproperties, which are not suit properties here, for a sum ofRs.2,000/- and in that D2 was described as a school student. Infact, there is force in the contention of the plaintiff that the saleproceeds obtained under Ex.B3 also, which was in the hands of D1helped him to make improvements in the co-parcenery by enlarging itsproperty status. As such, the joint status of the co-parceners areconcerned, both the courts below, gave a concurrent finding to theeffect that what are all the suit properties D1 acquired in his nameshould be treated as joint family properties and such a findingwarrants, no interference.75. Exs.B17 to Ex.B19 are the sale deeds executed by D1 infavour of his son D2, selling the suit items 1 to 7, 9 10 13, 16, 18,19, 20 to 25, 31, 33 to 41, 52, 54 to 60, 63 and other items. D2would contend that D1 was suffering from ill health and hence, he wasin dire need of money and it was D2 who helped his father with themedical expenses and as such, for the purpose of D1 meeting hismedical expenses and future maintenance sold the aforesaid variousitems of suit properties as per the sale deeds Exs.B17 to B19.76. The learned counsel for the plaintiff would convincinglyand appropriately argue that those sales are only bogus sales, purelyfor the purpose of benefiting D2, as no son would ever think ofspending money for the medical expenses of his father and inconsideration of the same get his property sold in his favour; if atall D2 wants that the medical expenses incurred by him should beshared by the other coparceners, then it is for the Court to orderfor the same and by no stretch of imagination, the sale could beheld to be valid. https://hcservices.ecourts.gov.in/hcservices/

77. At this juncture, my mind is reminiscent and redolent ofthe following decisions regarding sales effected by the kartha of thejoint family:(i) AIR 1996 SC 2127 (Gangadharan vs. Janardhana Mallan andothers), certain excerpts from it would run thus:"14. Now coming to the decision of this Court inRadhakrishnadas v. Kaluram, (1963) 1 SCR 648: (AIR 1967 SC574) this Court after referring to the Privy Councildecision observed as follows:“It is well established by the decisions ofthe Courts in India and the Privy Council thatwhat the alienee is required to establish islegal necessity for the transaction and that itis not necessary for him to show that every bitof the consideration which he advanced wasactually applied for meeting family necessity. 15. Again in Smt.Rani v. Shanthi Bala Devnath (1970) 3SCC 722: (AIR 1971 SC 1028) it is observed as follows:(Paras 10 and 11 of AIR):“The onus of proving legal necessity may bedischarged by the alienee by proof of actualnecessity or by proof that he made proper and bonafide enquiries about the existence of thenecessity and that he did that was reasonable tosatisfy himself as to the existence of thenecessity.”The Court further observed regarding legal necessity asfollows: “Recitals in a deed of legal necessity do not bythemselves prove legal necessity. The recitals are, however,admissible in evidence, their value varying according to thecircumstances in which the transaction was entered into. Therecitals may be used to corroborate other evidence of theexistence of legal necessity. The weight to be attached tothe recitals varies according to the circumstances. (emphasis supplied)A plain reading of the Chapter relating alienation of joint familyproperty for legal necessity as found in famour treatises namely,1.Mulla Hindu Law, 2.N.R.Raghavachariar's Hindu Law and 3.Mayne'sHindu Law also would leave no doubt in the mind of the Court, thatsuch sales effected by D1 in favour of his son D2 for the former'salleged medical expenses and future maintenance is totally untenable. https://hcservices.ecourts.gov.in/hcservices/

78.It is therefore clear that the sale executed by D1-thefather, in favour of his son D2, amounts to kartha executing thesale deed in favour of one other coparcener and such a sale isinvalid. No doubt, there is some evidence to show that D2 spentmoney for the treatment of his father and in such a case it is forhim to place the complete evidence during final decree proceedingsand pray for assessment of the actual amount and it is for the lowerCourt, during final decree proceedings, to assess the actual amountspent by D2, which should be shared by the other sharers also. Thetrial Court fell into error in simply holding that the kartha-D1 hadthe right to alienate the property for his medical expenses. D2would claim that D1 was with him or in other words D1 and D2 wereliving together under one roof and in such a case, D2 was notjustified in getting the sale deeds executed in his favour and itamounts to the kartha selling the joint family property in favour ofhis son D2. Adding fuel to the fire, a cumulative reading of therecitals in Exs.B17 to B.19 would exemplify and demonstrate that thesales were effected by D1 in favour of D2 not only for the D1'smedical expenses but also for D1's future maintenance. 79. The learned counsel for the plaintiff would correctly arguethat such sort of sale by the kartha in favour of one other member,for his future maintenance, is unknown to Hindu law. As such, it isclear that the trial Court, without considering the relevant law,jumped to the conclusion as though the sale deeds Exs.B17 to B19 arevalid. Wherefore, the finding of the trial Court was perverse onthis aspect. Whereas the first appellate Court's finding that thesale deeds Exs.B17, B18 and B18 as invalid, should be upheld ascorrect. 80. The contention of D2 that the sale executed by D1 as perEx.B2 dated 16.12.1968 in his capacity as guardian for and on behalfof the descendants of Chidambaram in favour of D2 in selling thesuit items 15, 27, 28, 29, 30, 32, 44, 67 and 69, is valid wasaccepted by the trial Court and the lower Court held as though thoseproperties belonged to D2. However, the first appellate Courtdisagreed with the view taken by the lower Court and held that thoseproperties should be treated as joint family properties.81. It is therefore just and necessary to find out as towhether there is any perversity or non-application of law on the partof either of the Courts to arrive at such conclusion.82. The trial Court itself in its discussion pointed out thateven though D1 obtained Court order as per Ex.B1 to sell theproperties of the minors, in favour of the prospective purchaserGopal, nonetheless D1 sold the properties in favour of D2.I am at aloss to understand as to how it could be done in violation of suchEx.B1, the court order. To say the least, the trial Court simply https://hcservices.ecourts.gov.in/hcservices/ narrated certain facts and in no way stated any reason for upholdingEx.B2.83. The first appellate Court correctly considered thecircumstances under which Ex.B2 emerged. It is the contention of D2that the deceased Chidambaram-the brother of D1, during his life timeborrowed a sum of Rs.4000/- from D8 and executed Ex.B13, promissorynote dated 16.12.1965 and in the back of the pro-note D1 madeendorsement that it was he who paid the amount and discharged thepro-note Ex.B13 dated 16.12.1965 in favour of D8 Mookayee, but therecitals in Ex.B2 would speak otherwise as though D2 only undertookto discharge the debt.84. By way of elaborating on this point, I would like to referto the recitals in Ex.B2, an excerpt from it would run thus:@/ / / / / / / / nyl; rpjk;guk; Fkhuh;fs; ikdh;fs; rkhh; 17taJs;s bghd;Drhk 1;. Rkhh; 13 taJs;s rpd;drhkp 2. nyl;Jiurhk; kfd;fs; Rkhh; 12 taJs;s b$fehjd; 3. Rkhh; 9 taJs;snyhfehjd; 4. Rkhh; 7 taJs;s uhn$e;jpud; 5/ Mf ma;e;Jegh;fSf;Fk; jpUr;rp $py;yh nfhh;l;L O.P.124 of 68 d; go fhh;oaDnghc&fDkhd gs;spf;Tlj;jhd; Fkhh; cwhp$d; gaph; br';fhd; ic&ikdh;fSf;fhf fhh;oad;; ncwhjhtpy; vGjpf; bfhLj;j Rj;jf; fpiuagj;jpuk; vd;dbtd;why; fhyk;brd;w rpjkguk; kfd; Jiurhk[pmth;fSf;F thhpR fpiuago ghj;jpag;gl;lJk; mth; $Ptpa jpirf;Fgpd;g[ thupR fpukg;go ic& ikdh;fs; bghd;Drhkp 1/ rpd;drhkp 2/.b$fd;ehjd; 3/ nyhfehjd; 4/ uhn$e;jpud; Mf ma;e;J ngh;fS;fFk;ghj;jpag;gl;lJk; ic& ikdh;fSf;F fhh;oaD nghc&fDkhd vd;dhy;nknd$; bra;ag;gl;L tUtJkhd moapy; fz;l brhj;Jf;fis jpUr;rp$py;yh nfhh;l;L O.P.124 of 1968 y; nghlg;gl;Ls;s I.A.425 of 68d;go brhj;Jf;fis tpw;gjw;F m';F fhyk; bgw;W moapy;fz;lbrhj;Jf;fis j';fSf;f Rj;j fpuak; bra;tjhf xg;g[f;bfhz;Lmjw;fhf epr;rapj;j fpiuak; U:gha; 4000?00 ic& fpiuaj;jij 4000j;ija[k; j';fsplk; bgw;Wf;bfhz;ljw;F tptuk; bguk;gYhh; jhYf;fhJiuk';fsk; fpuhkk; Jiurhk; kidtp K:f;fhap mk;khsplk;fhyk;brd;w ic& 1. 2 byf;fkpl;lth;fs; jfg;gDk; 3.4.5byf;fkpl;lth;fs; ghl;lDkhd rpjk;guk; mth;fshy; 16/12/1965 k;njjpapy; U: 4000?00 f;F vGjpf;bfhLf;fg;gl;l g[nuhnehl;Lf;flidjh';fs; jPh;gjhf xg;g[f;bfhz;L jh';fSk; U: 4000?00 ic& K:f;fhapmk;khSf;F g[nuhnehl;L Jif U:gha; tl;o bry;yhdJ nghf mry;Jif U:/4000-? Kk; bfhLj;J jPu;j;Jtpl;lgoahy; ehd; j';fSf;F/ / / // / / / / "85. A mere perusal of it would unambiguously and unequivocallymake the point clear that D1's brother Chidambaram died leavingbehind his two minor sons, namely, Ponnusamy and Chinnasamy and alsothe said Chidambaram's deceased son's minor sons, namely, Jaganathanand Loganathan and Rajendran and as such, on behalf of the said fiveminors, D1 executed the deed Ex.B2. The recitals also would https://hcservices.ecourts.gov.in/hcservices/ expatiate and demonstrate that D2 undertook to discharge the debt ofRs.4000/- payable by the deceased Chidambaram in favour of D8-Mookayee and it is not the recital that D2 paid the saleconsideration directly to D1, so as to enable him to discharge thedebt. But the recitals on the back of Ex.B13-the pro note wouldconvey as though it was D1, who allegedly paid the said sum ofRs.4000/- to D8. As such, it is clear that it is not a case where D2handed over cash to D1 under Ex.B2. 86. There are also some other facts to be noted. Ex.B2 wasscribed on 16.12.1968, whereas, the registration of the deed tookplace only on 4.3.1969. Ex.B13-the pro-note would show that it wasdated 16.12.1965 and in the back of Ex.B13, it is found as though bythe end of three years i.e. on 16.12.1968, D1 paid the sum in favourof D8. As such, all these factors have not been taken intoconsideration by the lower Court and in fact, there is no specificfinding based on reason by the lower Court at all on this aspect anda plain reading of that portion of the judgement of the trial Courtwould expose the lapse on the part of the lower Court in holdingEx.B2 in favour of D2.87. Over and above that the first appellate Court alsocorrectly referred to the fact that up to 1961, D2 was studying incollege and he could not have generated such a huge saleconsideration of Rs.4,000/- , so as to purchase the propertiescontemplated under Ex.B2 from D1. Regarding D2's claim that whilehe was a student, he managed to save from his scholarship amount to atune of Rs.8,000/- was correctly looked askance at by the firstAppellate Court, which also pointed out that per year a sum ofRs.800/- to Rs.850/- alone was the scholarship and after meeting hiseducational expenses, he could not have saved and purchased property.His claim that he started rice business with the alleged savings istoo big a pill to swallow. It is also a fact to be noted that theentire transactions occurred within the family. 88. Ex.B13 pro-note is obviously and axiomatically a document,which is not a registered one and hence it has no authenticity of itsown relating to the time at which, it emerged actually. The allegedloan obtained by Chidambaram from D8, the daughter of D1, should havebeen proved convincingly and for that matter D8 even though very mucheo-nominee party in this matter, was not examined so as toprobabilize the case of D2. Whether such a debt existed at all isvery much in doubt. 89. Mookayee is none but the daughter of D1 Sengan and sisterof D2. D1 was representing the minor children of his brotherChidambaram. As such, very correctly inference was drawn by thefirst Appellate Court that the properties contemplated in Ex.B2 werebrought into the said joint family, headed by D1 by D1 and D2colluding together. https://hcservices.ecourts.gov.in/hcservices/

90. To the risk of repetition and pleonasm, but without beingtautalogous, I would like to point out that the law is well settled,that if a property stands in the name of a co-parcener, it is for theother, who is pleading that it is a joint family property, to provethat it was purchased from out of the joint family funds. 91. Here, the discussion supra would clearly demonstrate anddivulge that the fund flowed only from D1-the kartha of the jointfamily and not from D2 and the above discussion would reveal that atthe relevant time D1 was deriving income from the joint familynucleus. I would like to highlight that each and every transactionshould be analysed with reference to the attending circumstanceinvolved in it, so as to assess whether as per a given transaction,the property was acquired by the joint family in the name of a co-parcener or it belonged to the individual or his self acquiredproperty. Accordingly, if viewed it is crystal clear from theevidence analysed so far that the transactions, as envisaged inEx.B17, concerning item Nos.33, 34, 35, 46, 54, 55 and 56, inEx.B18, concerning, item Nos.1 to 7, 9 to 14, 16, 18 to 25, 28, 36 to45, 47, 57, 59, 60, 63 and 66 in Ex.B19, concerning item Nos. 48,49, 50, 51 and 52 and in Ex.B2, concerning item Nos.15, 26, 27, 29,30, 31,32, 38, 44, 67, 69, 76 and 77 are all joint family properties.92. The limitation point raised in this case is, in my opinion,totally unwarranted, as the plaintiff was not eo-nominee party in anyone of those deeds, in which D2 was involved and as such, theplaintiff being a coparcener is entitled to ignore those deeds and ina partition suit, he is entitled to prove the true nature of thetransactions irrespective of the period of limitation, so long as hisright to seek partition subsists.93. The learned Senior counsel for the D2 would advance anddevelop his argument to the effect that the plaintiff in thepleadings simply went on putting forth new pleas during trial andthat reply statement will not constitute part of the pleadings.94. Whereas, the learned counsel for the plaintiff by placingreliance on the treatise Mogha's Law of Pleadings in India,Seventeenth Edition, would refer to the following excerpts:"Pleadings are statements in writing drawn up and filedby each party to a case, stating what his contentions willbe at the trial and giving all such details as his opponentneeds to know in order to prepare his case in answer.General: The drafting of pleadings is an art. . . . . .The purpose of rules regarding pleadings is to advancejustice and to prevent multiplicity of proceedings. . . ... . . . .It is a well-known principle of jurisprudencethat a judge is the counsel for both parties. . . https://hcservices.ecourts.gov.in/hcservices/ It must be borne in mind that the rules of pleadingsare intended to regulate the business and procedures of theCourt. They never create new legal rights where none exist,nor do they take away the existing rights. The Code ofCivil Procedure is only an adjective law as opposed tosubstantive law, on the basis of which alone the rights of aparty are to be determined. . . . I. Pleadings in a suitPlaint and written statement: As a rule, there are onlytwo pleadings in a suit, viz.,(a) A statement of claim, called the "Plaint", in whichthe plaintiff sets out his cause of action with allnecessary particulars;(b) A statement of defence is called the "writtenStatement", in which the defendant deals with every materialfact alleged by the plaintiff in the plaint and states anynew facts which tell in his favour, adding such legalobjections as he wishes to take the claim.Replication: No pleading subsequent to the writtenstatement of a defendant, other then by way of a defence toa set off or counter-claim can be presented except by leaveof the court and upon such terms as the court thinks fit,but the court may at any time require a written statement oradditional written statement from any of the parties. . . .It is for this reason that "pleading" is shortly defined inthe Code of Civil Procedure as meaning a plaint or a writtenstatement. In view of the language of O.8, R.9, theexpression "written statement' comprises a Replication aswell. Annexures to a plaint or written statement, referredto in some paragraphs of such pleading are deemed parts ofthe pleading.. . . Pleadings, therefore, also include statements ofparties or counsel, recorded before the framing of issuesfor clarification of the points in dispute. . . . Statementsmade under O.10, R.1, being part of pleadings are binding onthe party making it and cannot be rebutted by it. . . . Duty of Court : "The responsibility of clearlyperceiving and raising points, which arise upon thepleadings and evidence, and the proper adjudication of whichis essential for the ends of justice, rests on the court asmuch ash on the parties of their pleaders. . . . . . . When https://hcservices.ecourts.gov.in/hcservices/ the question is whether a party should be held bound by anadmission in his pleadings, it is the duty of the court tolook to the pleadings as a whole and not to dissect a factout of the pleadings. . . . . . When the pleadings arevague, the court has power also to order further and betterparticulars. The distinction between material facts andmaterial particulars of facts stated ought not, however, beoverlooked. . . . . Unfortunately, courts do not make sofree and extensive use of these powers as is necessary, andthe result is that the issues are enlarged and irrelevantevidence is often introduced, the real issues beingsometimes lost sight of. If these powers were carefully andextensively exercised, much of the evil effect of badpleading could be avoided. In fact that is not merely amatter of discretion; it is the duty of the court to findout accurately the real points of controversy between theparties and to adjudicate upon them, and not to passtechnical orders on technical points, for that means denialof substantial justice. In England these powers and alsothe rights of the parties to seek discovery, clarificationsand admissions, which are contained in Orders 11 and 12 ofour C.P.C., are so extensively and effectively exercisedthat ninety nine percent cases are settled even beforereaching the trial stage.Courts have no power to non-suit the plaintiff merelybecause the pleadings are not in proper form. . . . Where aparty pleads and proves all necessary facts, it is for thecourt to draw the legal inferences from them. A party neednot plead them.Fundamental Rules of Pleadings (Summing up) Thefundamental rules of pleadings are four, viz.,1.Every pleading must state facts and not law.2.It must state all the material facts, and materialfacts only, (o.6, R.2)3. It must state only the facts on which the partypleading relies, and not the evidence by which they are tobe proved; and,4. It must state such facts concisely but withprecision and certainty."95. Whereas, the learned Senior counsel for D2 would cite thefollowing precedents: https://hcservices.ecourts.gov.in/hcservices/ (i) AIR 1958 MADRAS 383 – NANJAN v. SELAI AND OTHERS(ii) 2000-1-L.W.420 – H.RAMACHANDRA RAO V. A.MOHIDEEN(iii)2002(4) CTC 295 – MRS.VERA MARIE VAS AND ANOTHERVS. MRS.JOYCE PRIMROSE PRESTON NEE VAS AND 3 OTHERSThe sum and substance of those precedents is to the effect that theamendment of plaint and written statement is different from reply andrejoinder. 96. I am fully aware of the fact that in certain circumstancesamendment might be required to the plaint or written statement and insuch a case, necessary application should be filed by the partyconcerned, seeking amendment. In some other circumstances merereply by the plaintiff and rejoinder by the defendant would serve thepurpose. 97. No doubt in the Code of Civil Procedure, actually, theterms 'reply' and 'rejoinder' are not found exemplified. However, inthe Rules relating to the Original Side of the High Court, one couldcome across the term 'reply' as part of pleadings. 98. Be that as it may, in civil jurisprudence, it is common orgarden principle that the plaintiff could file reply and thedefendant could file rejoinder. In this connection, suo motto Iwould like to refer to the word 'Replication, as found exemplifiedand described, defined and portrayed in the black's dictionary.Replication - In common law pleading, a reply made bythe plaintiff in an action to the defendant's plea or in asuit in chancery to the defendant's answer. In equity practice (now obsolete in the federal andmost state courts), a general replication is a generaldenial of the truth of defendant's plea or answer, and ofthe sufficiency of the matter alleged in it to bar theplaintiff's suit, and an assertion of the truth andsufficiency of the bill. A special replication isoccasioned by the defendant's introducing new matter intohis plea or answer, which makes it necessary for theplaintiff to put in issue some additional fact on his partin avoidance of such new matter.(emphasis supplied)As such, it is clear that the reply and the rejoinder also should betaken as part of pleadings and the Court cannot exclude them and thattoo, in a partition suit, hypertechnical approach regarding pleading,to say the least, would amount to throwing the baby along with bathwater. As such, in this case, the reply and the rejoinder filed, inmy opinion, are sufficient pleadings on both sides to consider their https://hcservices.ecourts.gov.in/hcservices/ respective contentions, and no part of the evidence could be eschewedon either side on the alleged ground that evidence is not backed upby pleadings.99. Accordingly, substantial question of law Nos.1 to 3 aredecided.Will:Substantial question of law Nos. 4 and 5:-100. D9 to D14 are the propounders of the Will Ex.B200, who asalready found out by me, simply got satisfied with the judgment ofthe trial court in rejecting the Will and not giving any share intheir favour based on it. Those defendants have not preferred anyappeal and the first Appellate Court also in its finding confirmedthe findings of the lower court in rejecting the Will. Thedefendants 9 to 14 belatedly attempted to file second cross appealafter getting the enormous delay condoned and such application wasdismissed for the reasons set out supra.101. However, this substantial question of law relating to thesame Will Ex.B200 has been framed virtually not at the instance ofD2, as D2 as the second appellant had not raised any plea relatingto the Will. However, after hearing the arguments in these secondappeals, for a considerable time, I formulated in stricto sensusubsidiarily the said substantial question of law relating to thevalidity of the Will because in a partition suit, if the mainsubstantial questions of law are decided one way or the other, itmight result in deciding the other points also by virtue of Order 41Rule 33 of the Code of Civil Procedure. Further more, I intend tofind out whether there is any perversity in the findings of the Courtbelow relating to Ex.B200. Hence, this substantial question of lawwas formulated by me subsidiarily and that too, in view of D9 to D14who are the propounder of the Will were served with notice in secondappeals and they are being represented by the learned Advocate.102. My above discussion supra would demonstrate and displaythat under the previous substantial question of law formulated, ittranspired that there existed co-parcenery between D1 and his threesons, viz.,(i) the deceased Raja Kannu,(ii) the plaintiff and (iii)D2 and I have also given my finding that the properties acquired inthe name of D1, all happened to be the joint family properties and insuch a case, D1 being, the Kartha of the family, cannot be held tohave had the right to will away the properties standing in his nameas per Ex.B200.103. In a partition suit, while allotting shares dependingupon the existence of the Will executed by one of the co-parcenery,within the meaning of Section 30 of the Hindu Succession Act, the https://hcservices.ecourts.gov.in/hcservices/ allotment of share would vary and hence in the interest of justiceand by virtue of powers conferred under Order 41 Rule 33 of the Codeof Civil Procedure and also to find out whether there is anyperversity or non-application of law on the part of both the courtsbelow in deciding the lis and that too in the event of already D9 toD14 are parties in the second appeals, this substantial question oflaw relating to Will also was framed by me.104. The question arises as to whether the Will was executed bythe testator at all as alleged by the propounders?105. Both the courts rejected the Will. However, the learnedcounsel appearing for D9 to D14 would invite the attention of thisCourt to para No.20 of the judgment of the trial court and highlightthat the trial court did not disbelieve the Will, but it was underthe misconception as though if at all the Will was specifically tothe extent of bequeathing the testator's ¼ th share in the suitproperties, it would have been valid.106. A plain reading of the said judgment of the trial courtwould show that in page No.28 of its printed judgment, the trialcourt was not clear in its discussion as the trial court held that itcould not be inferred that simply because on the date of scribing theWill, parliamentary election was there and the scribe was on theparliamentary duty, he could not have scribed the Will. However,he never gave any finding that the Will was validly executed by thetestator. To say the least, in order to prove the Will, there arecertain well established norms as contemplated under Section 63 ofthe Indian Succession Act and Section 68 of the Indian Evidence Act.But the propounders of the Will have not chosen to highlight as tohow, from the available evidence, it could be understood that thepropounders have proved that the testator had executed the Will. Thefirst Appellate Court gave a finding that the Will is not a genuineWill at all. As such, the findings of both the courts below areconcerned, it is against the propounders of the Will to the effectthat the Will was not proved to be a valid Will, I proceed toconsider the evidence available on record relating to the Will. 107. At this juncture, my mind is reminiscent and redolent ofthe following decisions relating to Will.1. 1994 (5) SCC 135 (Bhagwan Kaur vs. Kartar Kaur andothers)2. 2003 (12) SCC 35 (Bhagat Ram and another vs. Sureshand others)3. 2006 (13) SCC 449 (B.Venkatamuni vs. C.J.AyodhyaRam Singh and others) https://hcservices.ecourts.gov.in/hcservices/ A perusal of the aforesaid judgments would cumulatively reveal thatthe propounder of a Will has to prove the due execution of the Willby the testator as per Section 63 (c) of the Indian Succession Actr/w Section 68 of the Indian Evidence Act. There could be no quarrelover the proposition that a Will has to be proved strictly inaccordance with those aforesaid provisions of law. (i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others](ii)2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another] (iii) 2005(1) CTC 443 [Sridevi and others vs. JayarajaShetty and others](iv)2005(1) L.W.455 [Janaki Devi vs. R.Vasanthiand 6 others](v)1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal](vi)AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another](vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others](viii) AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others](ix) 2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy](x)2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others](xi)2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others](xii) 2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph](xiii) (1990) 1 SCC 266 (Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur vs. Smt. Chhoti and others) https://hcservices.ecourts.gov.in/hcservices/ (xiv) (1990) 3 SCC 364 (Ram Piari vs. Bhagwant and others)(xv)(1962) II Madras Law Journal Reports (Supreme Court) 27 (Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another)(xvi) 1976 STPL (LE) 8415 SC (Smt.Jaswant Kaur vs. Smt.Amrit Kaur and others)(xvii) 1984 (II) MLJ 133 (M.Krishnan vs. Ramaswami and others)(xviii) 2004 (1) CTC 619 (SC) (P.S.Sairam and another vs. P.S.Rama Rao Pisey and others)(xix) (2008) 8 MLJ 647 (Thayammal vs. Ponnusamy and another) Among the aforesaid decisions, the decision of this Court reported in2001(3)CTC 283 [Corra Vedachalam Chetty and another vs. G.Jankiraman]is on the point that the Court while analysing the Will is acting asa Court of conscience. An excerpt from the above said decision wouldrun thus:"26. This need for caution, cannot be exploited byunscrupulous caveators who choose to cull out imaginarysuspisions with a view to prevent the legatees under theWill from claiming the benefit thereunder and to renderthe last Will of the deceased wholly ineffective. In thiscontext, the conduct of the persons who raise the allegedground for suspision is also to be looked at, to know asto how credible are the grounds for suspisions sought tobe raised by such persons. In this case, the suspicion issought to be raised by a person who is keenly interestedin making the Will ineffective and whose conduct is farfrom one which would inspire confidence in truthfulness ofhis statements."As such, the cited precedent would also highlight that the Courtshould not attach undue importance to imaginary suspicions. Allthese aforesaid decisions are on the point that the Court should notat the time of analysing the validity of the Will proceed on thehypothesis that the Will is an invalid one. https://hcservices.ecourts.gov.in/hcservices/

108. At this juncture, my mind is reminiscent and redolent ofone other decision reported in 2003(1)CTC 308 [ Janki NarayanBhoir vs. Narayan Namdeo Kadam]. An excerpt from it would run thus:"8. To say will has been duly executed therequirements mentioned in clauses (a), (b) and (c) ofSection 63 of the Succession Act are to be complied withi.e., (a) the testator has to sign or affix his mark to thewill, or it has got to be signed by some other person inhis presence and by his direction; (b) that the signatureor mark of the testator, or the signature of the personsigning at his direction, has to appear at a place fromwhich it could appear that by that mark or signature thedocument is intended to have effect as a will; (c) the mostimportant point with which we are presently concerned inthis appeal, is that the will has to be attested by two ormore witnesses and each of these witnesses must have seenthe testator sign or affix his mark to the Will, or musthave seen some other person sign the Will in the presenceand by the direction of the testator, or must have receivedfrom the testator a personal acknowledgement of signatureor mark, or of the signature of such other person, and eachof the witness has to sign the Will in the presence of thetestator.9. It is thus clear that one of the requirements ofdue execution of Will is its attestation by two or morewitnesses which is mandatory.10. Section 68 of the Evidence Act speaks as to how adocument required by law to be attested can be proved.According to the said Section, a document required by lawto be attested shall not be used as evidence until oneattesting witness at least has been called for the purposeof proving its execution, if there be an attesting witnessalive, and subject to the process of the Court and capableof giving an evidence. It flows from this Section that ifthere be an attesting witness alive capable of givingevidence and subject to the process of the Court, has to benecessarily examined before the document required by law tobe attested can be used in an evidence. On a combinedreading of Section 63 of the Succession Act with Section 68of the Evidence Act, it appears that a person propoundingthe Will has got to prove that the will was duly andvalidly executed. That cannot be done by simply provingthat the signature on the Will was that of the testator butmust also prove that attestations were also made properlyas required by clause (c) of Section 63 of the SuccessionAct. It is true that Section 68 of the Evidence Act doesnot say that both or all the attesting witnesses must be https://hcservices.ecourts.gov.in/hcservices/ examined. But at least one attesting witness has to becalled for proving due execution of the Will as envisagedin Section 63. Although Section 63 of the Succession Actrequires that a Will has to be attested at least by twowitnesses, Section 68 of the Evidence Act provides that adocument, which is required by law to be attested, shallnot be used as evidence until one attesting witness atleast has been examined for the purpose of the proving itsdue execution if such witness is alive and capable ofgiving evidence and subject to the process of the Court.In a way, Section 68 gives a concession to those who wantto prove and establish a will in a Court of law byexamining at least one attesting witness even though willhas to be attested at least by two witnesses mandatorilyunder Section 63 of the Succession Act. But what issignificant and to be noted is that that one attestingwitness examined should be in a position to prove theexecution of a will. To put in other words, if oneattesting witness can prove execution of the will in termsof the clause (c) of Section 63, viz., attestation by twoattesting witnesses in the manner contemplated therein, theexamination of other attesting witness can be dispensedwith. The one attesting witness examined, in this evidencehas to satisfy the attestation of a will by him and theother attesting witness in order to prove there was dueexecution of the Will. If the attesting witness examinedbesides his attestation does not, in his evidence, satisfythe requirements of attestation of the Will by otherwitness also it falls short of attestation of will at leastby two witnesses for the simple reason that the executionof the will does not merely mean the signing of it by thetestator but it means fulfilling and proof of all theformalities required under Section 63 of the SuccessionAct. Where one attesting witness examined to prove thewill under Section 68 of the Evidence Act fails to provethe due execution of the Will then the other availableattesting witness has to be called to supplement hisevidence to make it complete in all respects. Where oneattesting witness is examined and he fails to prove theattestation of the Will by other witness there will bedeficiency in meeting the mandatory requirements of Section68 of the Evidence Act."109. A plain reading of those decisions would highlight that ifthere are suspicious circumstances, then the same should be dispelledto the satisfaction of the Court by the propounders of the Will.110. Here, admittedly, the testator's left thumb impressionsalone are found and that too on the extreme left portion of the threesheets, constituting the Will, Ex.B200. Virtually, in the first and https://hcservices.ecourts.gov.in/hcservices/ second sheets, they are at the bottom of the left margin. Normally,left thumb impression should be obtained at the bottom in the middleportion or on the right side corner. Signatures are also expectedto be in the same manner. I am fully aware of the fact that in thebusiness circle, the modern development is to sign on the left sideend. But, here, the left thumb impression is found on the extremeleft side.111. Indubitably and indisputably, incontrovertibly andunassailably, the testator was a man, who was in the habit ofsigning. But he did not sign in Ex.B200. The Will itself ispurported to have emerged on 24.11.1989. Whereas the testator diedwithin 72 hours thereafter. Wherefore, it leads to the suspicion asto whether the testator was in a sound state of mind and health inorder to execute the Will. The service of a professional scribe wasnot utilised for scribing the Will. But only, the testator'srelative, who is the grandson, was deployed for scribing the Will.112. Admittedly, DW4, the scribe would admit that on24.11.1989, there was a parliamentary election and he was on duty andeven on the previous day, he was expected to reach the work spot andbe there till the elections are over. However, here, the Will wasclaimed to have been scribed at 9.00 a.m on 24.11.1989. As such, onthe plaintiff's side, the learned counsel would vehemently argue thatat 9.00 a.m on 24.11.1989, the scribe could not have been there inthe house of the testator so as to scribe the Will.113. I could see considerable force in the submission of thelearned counsel for the plaintiff.114. DW3, Periasamy, one of the attestors of the Will woulddepose that the testator was suffering from ill-health and his handswere shaking and at that time, D2's wife Rajathi was there. He wouldalso state that D1's grand children were around him, which means thatthe beneficiaries were there around him at the time of his allegedexecuting of the Will. As per plaint, the respective ages of D9 toD14 were already found set out above and they were grown up personsas on 24.11.1989 and at least a few of them might be major persons.115. DW4, Periyasamy also would depose during cross that hehad seen the testator putting his thumb impression but he did notremember whether the testator had put his left thumb impression.Admittedly, this is an unregistered Will and there are discrepancies,exfacie and prima facie clear in the Will itself. In the Will, thereis no reference to any specific property. In the 8th and 9th line ofthe Will, the testator would refer to the properties standing in hisname in Perambalur Village.116. No doubt, the learned counsel appearing for D9 to D14would submit that preponderance of probabilities are in favour of the https://hcservices.ecourts.gov.in/hcservices/ theory of the propounders of the Will that the testator in factgenuinely executed the Will Ex.B200 because D1 during his life timedid not like to give any property to the plaintiff or to Raja Kannu'sdescendants. 117. So far, proving of the Will is concerned, there should beclinching evidence and merely based on assumptions that D1 might haveintended to bequeath his share in the properties in favour of D2'sson, cannot be presumed. No doubt, I am fully aware of the fact thatD1 during his life time, by executing various documents in favour ofD2 expressed his likeness for D2. However, my discussion supra wouldprove that all those documents executed by D1 in favour of D2 turnedout to be invalid also. Simply based on assumption that D1 mighthave intended to execute the Will, would not be sufficient to holdthat the testator in fact, executed the Will.118. The one other probability also should be seen. Had reallyD1 intended to execute the Will and that too, during the pendency ofthe suit, certainly, he would have executed a registered Will. Thereis no rhyme or reason for D1 to wait uptill bare 72 hours anterior tohis death. D1 filed written statement in this case and contested thematter also and in such a case, the evidence on record bespeaks thatD1 was in the know of things and he was worldly wise in dealing withthe property matters and such a person, if he had really wanted tobequeath all his properties in favour of D9 to D14, he would havevery well executed a registered Will or deployed regular scribe toscribe the Will long prior to his death. But, he did not choose todo so. Hence, I am of the considered opinion, I could see noperversity in the findings given by both the courts below in notbelieving the Will.119. Accordingly, the substantial question of law is answeredto the effect that the first Appellate Court was justified indisbelieving the Will and there is no perversity or non-applicationof law in rendering the finding.120. In the result,(i) the substantial question of law No.1 isanswered to the effect that the first Appellate Court wasjustified in holding that all the suit properties with theexception of a few set out here under are joint familyproperties. The documents marked on the defendant's sideshowing that some of the co-parceners purchased some itemsof suit properties would not disprove the theory of jointfamily status and income bearing joint family nucleus.(ii) the substantial question of law No.(ii) isanswered to the effect that the first Appellate Courtproperly applied the law relating to burden of proof and https://hcservices.ecourts.gov.in/hcservices/ there is evidence available to prove that there weresufficient joint family income to purchase the suitproperties in the name of D1.(iii) the substantial question of law No.(iii) isanswered to the effect that the properties purchased bySengan (D1) should be treated as joint family propertiesand the alienations made by him and the purchase of otherproperties from out of such sale proceeds also should betreated as joint family properties.(iv) Accordingly, the substantial question of law No.(iv) is answered to the effect that the first AppellateCourt was justified in disbelieving the Will and there isno perversity or non-application of law in rendering thefinding.(v) In view of the ratiocination adhered to above,the substantial question of law No.(v) is decided to theeffect that there is no perversity or non-application oflaw in interpreting the oral and documentary evidenceconsidering the evidence relating to the Will as well asother exhibits in this case, except to the limited extentset out supra, which would also be put in a nut shell atthe end of this judgment.(vi) The substantial question of law No.(vi) isdecided to the effect that the first Appellate Courtcorrectly decided that the properties acquired by D2 underEx.B2 were joint family properties and the DistrictCourt's order as contained in Ex.B1 cannot be taken as oneenuring to the benefit of D2.122. C.M.P.Nos.121 and 122 of 2009 are dismissedwith the observation that if at all, the petitioners inthese CMPs are so advised, it is open for them to file afresh litigation as against D3 (since died), D4, D5, D6 andD7 relating to the share of Rajakannu, which would beallotted in these proceedings. But, I make it clear thatin such a litigation, it is for the Court to decide onmerits the matter.123. Accordingly, M.P.No.1 of 2009 filed for gettingthe delay condoned in filing the cross appeal is dismissed.124. Accordingly, both the second appeals are partly allowedto the following effect: https://hcservices.ecourts.gov.in/hcservices/ The judgment and decree of the First Appellate Courtare partly modified as under:a) The entire extent in Item Nos.66 and 74 of thesuit properties has to be excluded from partition and anextent of 4 cents out of 12 cents in item No.36 of the suitproperties has to be excluded from partition, as thoseproperties are the exclusive properties of D2.b) The suit property in Ex.B4, if not alreadyincluded in the suit property should be included in thesuit properties for partition.c) D2 is at liberty to adduce evidence during finaldecree proceedings over and above the evidence available onrecord relating to medical expenses incurred by him forD1's medical treatment and get the quantum assessed, whichshould be shared by all the sharers proportionately.d) The court concerned during the final decreeproceedings should assess the equivalent money value of themoney, which was spent by D2 towards D1's medical expenses,taking into account the money value prevailing around thedate of passing the final decree.e) The rest of the judgment and decree passed by theAppellate Court are confirmed. In the circumstances bothparties shall bear their respective costs in the secondappeal.Sd/Asst.Registrar/true copy/Sub Asst.Registrarvj2/mskTo1. The I Additional District Judge, Tiruchirapalli. 2. The Subordinate Judge, Ariyalur.+ 2 c.cs. to Mr. T.R. Rajaraman, Advocate. S.R.Nos.37959 & 37960.+ 1 c.c. to M/s. Sarvabhauman Associates. S.R.No.38409. https://hcservices.ecourts.gov.in/hcservices/ + 2 c.cs. to Mr. P. Sivakumar, Advocate. S.R.Nos.37961 & 37962.+ 4 c.cs. to Ms. C. Uma, Advocate. S.R.Nos.38776, 38777.+ 2 c.cs. to Mr. R. Kannan, Advocate. S.R.No.38632. S.A.Nos.1561 and 1562 of 1995KS (CO)GSK 28.08.2009.