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2012 Supreme(Mad) 4021
High Court of Judicature at Madras
G. RAJASURIA, J.
K. Govindarajan
Versus
K. Subramanian
S.A.No.273 of 2005 and C.M.P.No.3706 of 2005 and V.C.M.P.No.7013 of 2005
Decided On : 03-10-2012
For the Appellant:Mrs. Mythili Suresh for M/s. Sarvabhauman Associates, Advocate.
For the Respondent:N. Manokaran, Advocate.
Properties acquired by the plaintiff from his skill and learning cannot be brought into the common hotch pot and he cannot be called upon to render accounts for his earnings.
Headnote:
Partition - Hindu Gains of Learning Act - Section 3 of The Hindu Gains of Learning Act (1930) - The court confirmed the findings of the trial court that the properties purchased by the plaintiff in his name and in the name of his relatives cannot be called upon to be put into the common hotch pot and the defendant cannot claim any share in that. The court also held that the suit was bad for omission of certain properties in the schedule of the plaint for partition and that the courts below were right in discarding certain documents as against the defendant.
Fact of the Case:
The plaintiff filed a suit seeking division of properties and permanent injunction. The trial court decreed the suit partially, and the defendant appealed, suggesting various substantial questions of law.
Finding of the Court:
The court found that the properties purchased by the plaintiff in his name and in the name of his relatives cannot be called upon to be put into the common hotch pot and the defendant cannot claim any share in that. The court also held that the suit was bad for omission of certain properties in the schedule of the plaint for partition and that the courts below were right in discarding certain documents as against the defendant.
Issues: The issues included the sustainability of the suit for partition, liability to render accounts for monies acquired by the plaintiff, and the admissibility of certain documents.
Ratio Decidendi: The court confirmed that properties acquired by the plaintiff from his skill and learning cannot be brought into the common hotch pot and he cannot be called upon to render accounts for his earnings. The court also upheld the decision to discard certain documents as against the defendant.
Final Decision: The court dismissed the second appeal, finding no perversity or illegality in the judgments and decrees of both the courts below.
This second appeal is focussed by the defendant animadverting upon the judgment and decree dated 26.10.2004 passed by the learned Additional District Judge cum Fast Track Court, No.II, Salem in A.S.No.73 of 2003 in confirming the judgment and decree dated 20.01.2003 passed by the learned Subordinate Judge, Sankari in O.S.No.105 of 2000.
2. The parties, for convenience sake, are referred to here under according to their litigative status before the trial Court.
3. Heard both sides.
4. The long and short of the germane facts absolutely necessary for the disposal of this second appeal would run thus:
a] The respondent/plaintiff, filed the suit seeking the following reliefs: To pass a judgment and decree as against the defendant -
(i) directing the division of suit A and B schedule properties into two equal shares by metes and bounds taking into consideration the good and bad nature of the soil equities of just and fair division and for the allotment of one share to the plaintiff.
(ii) granting permanent injunction interdicting the defendant from in any way excluding the plaintiff from the joint possession of the suit A and B schedule properties.
(iii) and for costs
(extracted as such)
inrespect of two items of the properties described in the schedule.
b] The defendant resisted the suit by filing the written statement admitting his half share and also the half share of the plaintiff over the A scheduled property, but denying the share of the plaintiff in the B scheduled property.
c] The trial court framed the relevant issues.
d] During trial, the plaintiff examined himself as PW1 and marked Exs.A1 to A20 and the defendant examined himself as DW1 and marked Exs.B1 to B12.
e) Ultimately, the trial court decreed the suit and passed the preliminary decree allotting half share each to the plaintiff and to the defendant in the A scheduled property and dismissed the prayer of the plaintiff in respect of the B scheduled property. As against which, appeal was preferred by the defendant for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court.
f) Being aggrieved by and dissatisfied with the judgments and decrees of both the courts below, the defendant has preferred this second appeal suggesting various substantial questions of law.
5. My learned predecessor framed the following substantial questions of law:
1. When admittedly some of the properties have been left out, whether the suit filed by the respondent for partition is sustainable, especially when it is bad for partial partition?
2. When the monies acquired by the respondent out of his earnings, which is the result of his education with the aid of joint family funds tantamount to joint family properties and is liable to render accounts for the same, whether the courts below are correct in law in holding that the respondent is not liable to render accounts since his earnings are his separate property?
3. Whether the courts below are correct in law in discarding Exs.B1 to B12 which would categorically negate the case of the respondent?
(extracted as such)
6. Heard both sides.
7. Indubitably and indisputably, unassailably and unarguably, the germane facts for the disposal of this second appeal would run thus:
a) The plaintiff is the younger brother of the defendant-Govindarajan. In the course of the proceedings, the plaintiff gave up his right over the B scheduled property, which was claimed to be the absolute property of the defendant as he purchased it from out of his own funds. So far as the A scheduled property is concerned, it originally belonged to the father of the plaintiff and the defendant and he released his share in favour of his sons on 03.08.1991. However, there was no partition emerged relating to the A scheduled property between the plaintiff and the defendant. Hence, the suit was filed by the plaintiff seeking the aforesaid reliefs.
b) Per contra, the defendant would contend that from out of the joint family
