The court affirmed that property treated as joint family property entitles the plaintiff to a 1/3rd share, ruling against the validity of a unilateral settlement deed.

JUDGMENT :

N.SATHISH KUMAR, J.

Aggrieved over the judgment and decree of the trial court dismissing the suit for declaration and for partition and granting only permanent injunction restraining the defendants except by due process of law, the unsuccessful plaintiff has filed the present first appeal. The parties herein are referred to by their respective ranks before the trial court.

2.The brief facts of the plaintiff’s case is as follows:

(a)The plaintiff is the son of the first defendant and second defendant is the brother of the plaintiff. An extent of 3600 square feet in Plot No.5 in Survey Nos.12/4, 12/5 and 12/6 in No.106, Koyambedu village was originally purchased by one Mr.K.G.Mahadevan, the father of the first defendant and grand father of the plaintiff and the second defendant. After the purchase, he threw the property into hotchpot of the joint family. The joint family consisted of the said Mr.K.G.Mahadevan, his two sons, namely the first defendant Mr.K.M.Ganapathy and his brother Mr.K.M.Subramanian. The said Mr.K.G.Mahadevan has put up the construction after the purchase out of the joint family nucleus and also the amount contributed by his wife Mrs.Annapoorni. The said Mr.K.G.Mahadevan and his two sons were living together as joint family along with their respective families. After the life time of Mr.K.G.Mahadevan, the first defendant and his brother Mr.K.M.Subramanian lived with their mother and their families as joint family and treated the larger extent of the property as joint family property by putting the same into the hotchpot of the joint family. After the death of Mr.K.G.Mahadevan, the first defendant and his brother Mr.K.M.Subramanian entered into a partition deed dated 04.03.1987, in which the suit property measuring 1800 square feet was allotted to the first defendant. After the said partition, the suit property was treated as joint family property of the plaintiff and defendants by putting the same into the hotchpot of the joint family property. The plaintiff and the second defendant were living in the suit property as joint family and the ration card was also issued including all their names.

(b)It is further averred that to raise funds to put up a new superstructure over the suit property land after demolishing the existing old superstructure, the defendants and the plaintiff decided to sell the property in plot no.17, Sri Kamatchiamman nagar, No.42, Mangadu village measuring 2100 square feet belonged to the mother of the plaintiff and second defendant. The first defendant sold the entire property and received a sum of Rs.38,00,000/-. After the sale of the property, the first defendant had appointed one M/s.Bakkiyam Builders as a contractor for construction of the new superstructure. After putting up the construction, the plaintiff and his family are residing in the ground floor of the suit property as co-owner and the second defendant was residing with his family in the first floor and the first defendant was also residing in the first floor of the suit property. Hence, according to the plaintiff, the suit property is only a joint family property. When the plaintiff went to the USA on official trip during January 2015 to February 2015 and during March to May 2015 and when the plaintiff’s wife decided to go for a job during January 2015, the plaintiff requested his parents-in-law residing in Coimbatore to come and stay with the plaintiff’s family for the purpose of taking care of the two tender aged children and only for that purpose, the in-laws of the plaintiff had shifted their residence from Coimbatore to Chennai. The first defendant used to visit the plaintiff’s house and had maintained a cordial relationship with the plaintiff and his family members till the in-laws of the plaintiff came to Chennai. Only after the parents-in-law of the plaintiff came to his house, a dispute arose. Later, a legal notice was received on 06.06.2016 from the first defendant wherein the first defendant made all sorts o