IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
S.Rajarathinam – Appellant
Versus
Dr.S.Navarathinam (Died), N.Rathnakumar – Respondent
A.Nos.2178 & 2507 of 2020 in C.S.No.290 of 2003
Decided on : 19-05-2021
Constitution of India,1950 - Joint Hindu Undivided family - Registered sale deed - Executed a mortgage deed for the business of Saravana Stores in favour of the Tamilnadu Merchantile Bank - Whether the business Saravana Stores was started as a proprietary concern or as partnership firm - Whether the Income Tax Returns for the period would be produced - Whether additional evidence could be received by the Appellate Court in the appeal stage - Suit C.S.No.290 of 2003 was originally filed by the deceased 1st plaintiff seeking partition of his 1/4th share in the suit A and C schedule properties, for appointing a Commissioner to take an inventory of the properties mentioned in schedule A and C, for an injunction restraining the defendants from interfering with the possession and enjoyment of A and C schedule properties by the plaintiffs and defendants 1 to 3 and for a receiver to take possession of schedule A and C properties and deposit Income therefrom to the credit of suit - Plaintiff in his plaint would state that he and the defendants 1 to 3 are the sons of one defendants 4, 5 and 6 are wives of defendants 1, 2 and 3 respectively. The 1st plaintiff would contend that their father was carrying on business at for over 50 years where he was doing business in Hardwares, Textiles and Provisions Stores. Out of these business said had earned considerable money which he invested in the purchase of extensive property at Tiruchendur and at Chennai – Held, statement the applicants/defendants 2 and 5 are seeking to introduce an entirely new defense. It is to be noted that the sister of the plaintiffs and defendants 1 to 3 has not sought to the suit though the same is pending since the year 2003 and the said Selvanayagi had died only on 23.07.2019. The defendants who were aware about the case pleaded by the plaintiffs as early as in the year 2003 have not thought it fit to raise this defense in their original written statement. The suit is now in the stage of cross examination of D.W.1, if at this stage leave is granted to receive the written statement then the plaintiffs would be compelled to take out an application to implead the said Selvanayagi's legal representatives newly impleaded parties would have to file their written statement additional issues need to be framed. All of this would take considerable time and proceedings would be further protracted - defendants is that the property is not the property of joint family it appears to be only an attempt to protract proceedings. Another fact that has to be taken note is that no reasons whatsoever has been given by the defendants for taking out the said application - Judgment relied upon by defendants 2 and 5 are the cases where adequate reasons have been given for filing an additional written statement - Affidavit in the instant case is totally silent in this regard. The filing of an additional written statement is not a matter of right but should be granted only upon sufficient reasons being given for - application in A.No.2507 of 2020 is dismissed
JUDGMENT :
The 2nd and 5th defendants have filed the above applications in the suit C.S.No,290 of 2003.
2. A.No.2178 of 2020 is filed seeking permission for the 2nd defendant to mark the petition mentioned documents. The petition mentioned documents were; (a) Partnership Deed dated 15.02.1979, (b) Income Tax Returns for the years 1978-1979, 1979-1980, 2018-2019 and 2019-2020.
3. A.No.2507 of 2020 is filed seeking permission to file an additional written statement.
4. Before traversing through the contents of the two applications it is necessary to briefly narrate the pleadings of the plaintiff and the defendants in the suit C.S.No.290 of 2003, in which these two applications have been filed.
5. The suit C.S.No.290 of 2003 was originally filed by the deceased 1st plaintiff seeking partition of his 1/4th share in the suit A and C schedule properties, for appointing a Commissioner to take an inventory of the properties mentioned in schedule A and C, for an injunction restraining the defendants from interfering with the possession and enjoyment of A and C schedule properties by the plaintiffs and defendants 1 to 3 and for a receiver to take possession of schedule A and C properties and deposit the Income therefrom to the credit of the suit.
6. The 1st plaintiff in his plaint would state that he and the defendants 1 to 3 are the sons of one Shanmugasundara Nadar. The defendants 4, 5 and 6 are the wives of defendants 1, 2 and 3 respectively. The 1st plaintiff would contend that their father Shanmugasundara Nadar was carrying on business at Srilanka for over 50 years where he was doing business in Hardwares, Textiles and Provisions Stores. Out of these business the said Shanmugha Sundaram Nadar had earned considerable money which he invested in the purchase of extensive property at Tiruchendur and at Chennai.
7. The 1st plaintiff would contend that he and defendants 1 to 3 along with their father had lived as a Joint Hindu Undivided family. The properties at Chennai were purchased from out of the joint family funds jointly in the names of the 1st plaintiff and defendants 1 to 3.
8. The 1st plaintiff would submit that first of such purchase was Door No.20/1, Ranganathan Street, T.Nagar, under a registered sale deed dated 24.02.1973. This property was later exchanged for Door No.2/19 which belonged to T.S.Ratnam Nadar. The next property that was purchased jointly in the name of 1st plaintiff and the defendants 1 to 3 was Door No.45, Ranganathan Street, under a registered sale deed dated 17.04.1982.
9. Thereafter, Door No.14, Natesa Iyer Street, T.Nagar was purchased in the name of 1st plaintiff and defendants 1 to 3 under a registered sale deed dated 19.09.1985. The 1st plaintiff would contend that he had taken to medicine and was not directly involved in the family business. However, the defendants 1 to 3 were taking care of his interest in the business and the fact that he was involved in the business is evident from the fact that he had executed a mortgage deed for the business of Saravana Stores in favour of the Tamilnadu Merchantile Bank.
10. The 1st plaintiff would submit that till 1997 all of them living jointly and it was only in 1997 that the 1st plaintiff had shifted his residence to Ekkatu Thangal. He would submit that even when the brothers were living jointly at Rathna Street they never shared a common Kitchen. Each of the brother's portion was treated as a separate unit. The 2nd defendant was taking care of the lands at Tiruchendur. It is also the case of the plaintiff that the spouses of defendants 1 to 3, namely, defendants 4 to 6 were inducted as partners only as name lenders, since the 1st plaintiff who was a medical practitioner was prohibited from carrying on business.
11. The 1st plaintiff would further submit that the A Schedule property consist of properties which were jointly purchased by him and the defendants 1 to
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