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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
S. Krishnamurthy
Versus
S. Venugopal & Others
S.A. Nos. 1691 of 1986 & 393 of 1987
Decided On :Decided On : 12-03-1996
{'KEYWORD': 'JOINT FAMILY PROPERTY', 'SUBJECT': 'Partition', 'ACT SECTION LIST': []}
Fact of the Case:
Plaintiff filed a suit for partition of the plaint property, claiming that it was a joint family property acquired through the joint exertion and labour of the family members. The first defendant, who was the elder son, claimed that the property was his self-acquisition and that he had purchased it with his own funds. The third defendant, who was the plaintiff's brother, also claimed a share in the property, contending that it was acquired with the labour of all the coparceners and that the first defendant had gifted a portion of the property to him.
Finding of the Court:
The trial court held that the plaint property was a joint family property and passed a preliminary decree in favour of the plaintiff. However, the lower appellate court reversed the trial court's decision and held that the property was the self-acquisition of the first defendant. The third defendant's claim was also dismissed.
Issues: 1. Whether the plaint property was a joint family property or the self-acquisition of the first defendant? 2. Whether the third defendant was entitled to a share in the property?
Ratio Decidendi: 1. The court held that the plaintiff had failed to prove that the plaint property was a joint family property. It noted that the father and the first defendant were the only members of the family who knew the family profession of weaving and that the plaintiff and the other defendants were employed elsewhere. The court also noted that the property was purchased in the name of the first defendant and that there was no evidence to show that the other coparceners had contributed any funds towards the purchase. 2. The court held that the third defendant was not entitled to a share in the property. It noted that the third defendant had attested a mortgage deed in which the first defendant claimed absolute title to the property and that there was no evidence to show that the third defendant had accepted the settlement deed executed by the first defendant.
Final Decision: The court dismissed both the plaintiff's and the third defendant's appeals.
1. Both these Second Appeals arise from O.S. No. 356 of 1982, a suit filed for partition. Plaintiff therein is the appellant in S.A. No. 1691 of 1986. Third defendant in that suit is the appellant in the connected Second Appeal.
2. As per judgment dated 29-7-1985, preliminary decree was passed in favour of the plaintiff holding that he is entitled to 8/35 shares in the plaint item. The said judgment was set aside in appeal. Third defendant also claimed a share. When the suit was dismissed, the third defendant, being aggrieved, has also filed the connected Second Appeal.
3. The material averments in the plaint are as follows:—
Plaintiff, defendants 1, 2, 3, 5 and 6 are children of the 4th defendant born through late K.V. Subramaniam Chettiar. Defendants 5 and 6 are daughters. Others are sons. 7th defendant is the wife of the first defendant. The other defendants in the suit are tenants, occupying portions of the suit property.
4. It is the case of the plaintiff that late K.V. Subramaniam Chettiar, who died in the year 1978 at the age of 91, was permanently residing at Salem, and the entire family migrated to Coimbatore for earning a better income. It is his case that Subramaniam Chettiar and the family were doing traditional handloom weaving business and they were owners of some looms. They used to get yarn from various merchants, and after weaving, the same was supplied to various merchants, and they had a flourishing business at Salem. About 30 years prior to the institution of the suit, it is said that the entire family migrated to Coimbatore where they lived initially in the house of the elder daughter of Subramaniam Chettiar and thereafter they resided in a rented house. It is the plaintiffs case that the family members were contributing their labour and exertion to augment the income of the family, and out of savings, the plaint A Schedule property was obtained. It is said that the family members had absolute faith in the first defendant, who is the elder son, and so the property was purchased in his name. Misunderstandings arose after the death of the father, and therefore, plaintiff has filed the suit for partition. The sale deed in Ex. A-1 or Ex. B-1 dated 1-12-1976.
5. In the written statement filed by the 1st defendant, he said that the family did not have any income nor was there any contribution either by exertion or labour. Father and himself were the only members who knew weaving and both of them were conducting independent, separate business. It was out of his own exertion, he could make some savings and purchase the plaint property in his name and, therefore, the same is his self-acquisition. It is also said that the first defendant during the relevant time, was having his own business and was also having partnership business with strangers, and the plaintiff was employed separately. It is also said that even though the father and the brother were all residing in the same house, they were not having a common mess. It was only because of love and affection, all of them were living together, and not because the plaint property was joint family property.
6. The 3rd defendant filed a written statement contending that it was due to the exertion of all the coparceners, the family property could be acquired. He also said that the first defendant has executed a settlement deed in his favour whereby he has gifted a portion of the property. Since it was acquired with the labour of the brothers, each of them will be entitled to an equal share. The 1st defendant has gifted his share to him as per Ex. B-6. Therefore, he claims that apart from the share in his individual right, he is also entitled to the share gifted to him by the first defendant as per Ex. B-
6.
7. Before the trial court, elaborate evidence was taken. We find that Exs. A-1 to A-16 were marked on the side of the plaintiff. Apart from examining himself as P.W. 1, plaintiff examined two more witnesses as P.Ws. 2 and 3. On the side of the defendants,
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