AS/1122/1986 of RAMARAJ.G Vs PONNUSWAMY REDDIAR AND 4 on 19 December 2002

:COMMON JUDGMENT

M.CHOCKALINGAM, J.

The defendants 3 to 6 in O.S.363/81 are the appellants in A.S.1122/86, while the plaintiff in O.S.59/85 is the appellant in A.S.437/89.2. Both the appeals have arisen from the common judgment and decreeof the learned II Additional Subordinate Judge, Madurai, granting apreliminary decree in O.S.363/81 and dismissing the suit in O.S.59/85.3. The plaintiff in O.S.363/81 has averred in the plaint as follows:The plaintiff is the son of the defendants 1 and 2 and the brother ofthe defendants 3 and 7, while the defendants 4 to 6 are the children of thethird defendant. Suit properties are the ancestral properties of theplaintiff, and some of them are purchased out of the income from the jointfamily properties and the defendants 1, 3 and 7. The properties described in'A' Schedule are ancestral properties. 'B' Schedule properties were purchasedin the name of the first defendant . Since the name of the second defendantis lucky, 'C' Schedule properties were purchased in her name. She is only abenami. 'D' Schedule properties were purchased in the name of the plaintiff.'B' to 'D' Schedule properties were purchased from out of the income from theancestral properties and from the joint efforts of the plaintiff and thedefendants 1, 3 and 7. 'E' Schedule properties are in the house inMaiyittampatty Village, while 'F' Schedule properties are in the house inMadukathan Village. Though heavy amounts of the joint family in cash havebeen deposited in the names of the defendants 4, 5 and 6, they have noindependent source of income. Hence, those deposits belonged to the jointfamily. The defendants 1 and 3 have also advanced loans to various parties tothe tune of Rs.80,000/- from the joint family funds. The first defendant askartha of the joint family is liable to render accounts for the same. The 8thdefendant is the daughter and the 9th defendant is the son of the plaintiff,while the defendants 10 and 11 are the sons of the 7th defendant. The 9thdefendant purchased 37 cents of punja lands from out of the funds provided byhis mother by way of a registered sale deed dated 7.7.66. the said propertiesare not the joint family properties. The plaintiff and the defendants 1, 3and 7 are entitled to 1/4th share in the suit properties. The 2nd defendantis entitled to only maintenance till her life from out of the share of thefirst defendant. Since quarrel arose in the family, the plaintiff tried hislevel best to have a partition of the joint family properties. On 5.6.81, thefirst defendant informed that there cannot be any partition, which constrainedthe plaintiff to file this suit for partition and allotment of 1/4th share ofthe suit properties to the plaintiff and for direction to the first defendantto render accounts.

4. The defendants 1 and 3 to 6 have filed a written statement with the following averments:

'C' Schedule properties belonged to the second defendant, having beenacquired by her from out of her sridhana properties. Apart from that, thehouse property bearing door No.70.A in Maiyittampatty Village described in BSchedule belonged to the 2nd defendant, and it is purchased by her with herown funds. In addition to the properties described in A Schedule, the familyis entitled to a padapadi 2 cents in extent comprised in R.S.97/14 in theVillage of Maiyittampatty, which should be included as an item available fordivision. The kottam described in B Schedule is only a repetition of item 16of A Schedule, and hence, item 16 of A schedule should be deleted. Since thefirst defendant had become ill and old in 1971, he entrusted the management ofthe properties to the plaintiff. The fact that the amount of Rs.12,000/-belonging to the family was deposited in the name of the minor son of theplaintiff as a lucky name in the Indian Bank, Viruidhunagar Branch wassuppressed by the plaintiff. The said amount should also be included as anitem available for division. The minor son of the plaintiff had nowherewithal to purchase any property, and hence, the properties under items 1to 5 were purchased out of the joint family income. Out of the income fromthe joint hindu family, the plaintiff advanced Rs.30,000/- on othi in the nameof his daughter Saraswathi, and the plaintiff subsequently purchased the saidhouse in her name for a consideration of Rs.1,30,000/-. The plaintiff hasalso obtained another othi for Rs.10,000/- in her name. But, the plaintiffhas fraudulently omitted to include the said property for division. Theplaintiff's son and daughter should also be impleaded as parties. The suit isbad for their non joinder. The plaintiff has also omitted to mention thevarious vessels and other movables. Since they are family properties, theyshould also be made available for partition. There are two wooden bureaus.There are only two pairs of bulls. The value given for items 1 and 3 to 9 ofE Schedule is not correct. Items 2 and 9 of E Schedule do not belong to thefamily, but belonged to the 2nd defendant. The plaintiff has deliberatelyomitted to mention 2 bearing machines belonging to the family, which are inhis custody. They should also be made available for partition. The house inMadakathan Village belonged to the 2nd defendant. Though these defendants arealways ready and willing to effect a fair and equitable partition, theplaintiff and the 7th defendant colluded with each other and are adoptingunreasonable attitude by setting up false claims to the properties whichexclusively belonged to the 2nd defendant. These defendants have no objectionfor dividing the ancestral properties. None of the family properties or fundsare with either the first defendant or the third defendant, and they are notliable to render any account therefor. The suit is also bad for non joinderof two sons of the 7th defendant. Hence, a preliminary decree may be passedin respect of the family properties only belonging to the plaintiff and thedefendants 1 and 3 to 6 allotting their 1/4th share separately, and theplaintiff has to be directed to render accounts in respect of their respectiveshares and pay the same to them. The remaining portion of the suit claim maybe dismissed with costs.5. The second defendant filed a written statement alleging that withthe moneys presented to her, she had been advancing the same to variouspersons for interest even as early as 1929; that the moneys advanced by herfrom 1929 refer only to her separate funds and not out of the joint familyfunds; that she purchased properties with her moneys, in which neither the

first defendant nor the joint Hindu family of the first defendant had anyright, title or interest; that after purchase of the properties in her name,she has been separately enjoying the same as her own properties; that item 18of C Schedule was settled in her favour by her brother Tirupathi Reddiar, andits correct extent is 10.5 acres; that the house tax in respect of DoorNo.91-B has been assessed in her name; that it is her exclusive property; thatthe kist was also paid by her; that most of the purchases had been made by herlong before the plaintiff was born; that she is not a benamidar; that theplaintiff and the 7th defendant had refused to allow her to enter into thehouse and prevented her from opening the iron safe; that they have no rightsin her properties; that she is forced to reside at Mudakathan; that evenassuming that she had no moneys of her own for purchase of the properties, theproperties purchased in her name are to be treated to be the propertiesintended to be enjoyed absolutely by her; that she executed a Will on 17.6.81bequeathing all her properties in favour of her grandson viz. defendants 5and 6; that she purchased item 2 of C Schedule as early as 2.6.36; that shehas been keeping her income separately; that she purchased 10 acres of land on23.1.80 and also the house property shown as last item in B Schedule; that thehouse tax assessment stands in her name; that she sold a property purchased byher, to a third party Minor Raman as early as 16.3.1948; that the iron boxbelongs to her; that the plaintiff has no cause of action to file this suit;that the plaintiff is not entitled to get any relief, and hence, the suit maybe dismissed with costs.

6. The 7th defendant filed a written statement stating that he alongwith the plaintiff and the defendants 1 and 3 are in joint possession of thesuit properties; that the suit properties are ancestral properties; that theproperties purchased in the name of the second defendant belonged to the jointfamily; that the income from the Mayittampatti Village properties have beenhanded over to the first defendant then and there after meeting the expensesby the plaintiff and the 7 th defendant; that he is entitled to 1/4th share inthe deposited amounts and also 1/4th share in the loans advanced by thedefendants; and hence, 1/4th share may be allotted to him.

7. In the written statement filed by the 8th defendant, it is averred that she is the daughter of the plaintiff; that the house at Post OfficeStreet Virudhunagar had been purchased only for her benefit from the funds ofher husband by way of a registered sale deed dated 16.7.81; that after hermarriage, there was no need for the plaintiff or the defendants to look afterher; that no property was purchased in her name from out of the joint familyfunds of the plaintiff and the other defendants, and hence, the suit has to bedismissed with exemplary costs.

8. It is averred in the written statement filed by the 9th defendant that he is the son of the plaintiff and a member of the joint family; that hepurchased some properties from out of the funds of his mother; that his motherwas having separate funds, and the same had been deposited in Indian Bank;that the plaintiff withdrew the said amount and spent the same for the purposeof the joint family; that he should be allotted with his share from the jointfamily properties in addition to the properties purchased by him; and hence, apreliminary decree for partition allotting his share has to be passed.9. The 10th defendant filed a written statement stating that thedefendants 10 and 11 are necessary parties to the suit; that they are entitledto a share in the joint family properties; that they adopt the written

statement of the 7th defendant; that the shares of the defendants 10 and 11have to be allotted separately, and hence, a preliminary decree may be passedaccordingly.10. In the reply statement, the plaintiff has averred that the seconddefendant never intended to gift the said lands in favour of the fourthdefendant; that C Schedule lands are also joint family properties; that thealleged settlement deed was not given effect to; that the 4th defendant wasnot given possession of the lands mentioned therein; that the fourth defendantfiled a suit in O.S.778 of 1983 on the file of the District Munsif's Court,Tirumangalam against Nanammal, Ponnusamy Reddiar, Durairaj Reddiar, Gunapalan,Gandhiraj and Dinakaran for a permanent injunction restraining them frominterfering with her alleged possession and enjoyment; that the said suit isstill pending; that neither the plaintiff nor the 7th defendant is liable torender accounts for the profits; that the cancellation deed dated 4.3.8 3 asalleged by the 4th defendant is proper and legal; that since the suitproperties are joint family properties, the plaintiff is entitled topartition.

11. In the additional written statement filed by the third defendant,it is stated that the first defendant even when he was alive, had disclaimedany interest in B Schedule item 2 and all the items in C Schedule; and hence,neither the plaintiff nor the defendants 3 and 7 can claim any interest in thesaid properties as his legal heirs.

12. The 4th defendant filed an additional written statement statingthat the 2nd defendant had executed a registered settlement deed in her favouron 18.4.83; that the plaintiff or the 7th defendant has no right to claim anyshare in the properties; and that the alleged cancellation deed dated 4.3.83is totally void and inoperative.

13. In the additional written statement filed by the defendants 5 and6 it is averred that it is only with the evil intention of grabbing a share inthe suit properties, the plaintiff has fraudulently included the properties inC Schedule as joint family properties; that the second defendant has expresslymentioned in her Will as to why she was not giving any portion of herproperties to the plaintiff or 7th defendant and why she was bequeathing thesame to them; that the second defendant executed a general power of attorneyin favour of one Padmanabhan and instructed him to sell away her properties inMudakathan and Anaiyur Village to them; that accordingly, the properties weresold to them on 18.5.83 and 30.5.83; and that they solely and exclusivelyentitled to the C Schedule house.

14. The case of the plaintiff in O.S.59/85 is as follows:

14. The case of the plaintiff in O.S.59/85 is as follows:

Originally the suit properties belonged to the first defendant. Sheexecuted a registered settlement deed in favour of the plaintiff on 18.4.83.She executed the same of her own accord and volition. As per the settlement,the plaintiff is entitled to the suit properties. The plaintiff is inpossession and enjoyment of the suit properties from 18.4.83. At the instanceof the defendants 2 to 6, on 4.6.83, the first defendant was made to cancelthe settlement deed; that she has no right to cancel the settlement; that shehas done so on account of coercion and undue influence of the defendants 2 to6; that when the plaintiff and her men were about to plough the suitproperties on 8.8.83, the defendants came there, threatened and wanted to oustthe plaintiff from her possession of the suit properties; and hence, theplaintiff was constrained to file this suit, and the defendants should be restrained by way of permanent injunction.

15. The first defendant filed a written statement alleging that theplaintiff is not in possession and enjoyment of the suit properties at anypoint of time; that the suit properties are joint family properties belongingto her husband and his three sons; that the suit properties have beenpurchased in her name from out of joint family nucleus by her husband; thatthe settlement deed was executed by her at the instance of her father; thatshe executed a power of attorney in favour of the husband of the plaintiff,who had misused the same and the same has resulted in the execution of thesaid settlement deed; that the other defendants were not aware of the saidsettlement; that the husband of the plaintiff and her father filed O.S.29/83on the file of the Vacation Civil Judge, Madurai on 19.5.83 in her name for apermanent injunction, and the said suit was transferred to the DistrictMunsif, Madurai and numbered as O.S.263/83; that on coming to know about theevil design and also misuse of the power, an application was filed inI.A.431/83 to strike off her name from the array of parties as first plaintiffand to dismiss the suit, and the same was allowed on 21.6.83; that the recitalin the settlemen t deed were executed and introduced only for the sake of thesettlement deed and not with the idea of giving effect to the same; that thesettlement deed was not acted upon; that the suit properties are in possessionand enjoyment of the defendants 2 and 3; that the settlement deed seems tohave been obtained from her by giving false hope and with ulterior object ofdefrauding the rights of the defendants 2 and 3; that the settlement deed wasduly cancelled by her by means of a registered cancellation deed dated 4.6.83;that she was never kidnap ped by the defendants 2 and 3; that the cancellationdeed is a free and voluntary document; that she did not give any threat on8.8.83; that various crops were raised in the suit properties; that theplaintiff has no cause of action against the defendants, and hence, the suitmay be dismissed with costs.

16. The 2nd defendant filed a written statement with the followingaverments:

16. The 2nd defendant filed a written statement with the followingaverments:

The suit properties are joint family properties. Since the suitproperties stand in his mother's name, it has been stated in the settlementdeed that the suit properties are the self acquired properties of the firstdefendant. The settlement deed was executed at the instance of his youngestbrother Ramraj and the husband of the plaintiff. The husband of the plaintiffhad misused the power deed executed by the first defendant and filed a suitfor permanent injunction. He also filed a suit for partition of the jointfamily properties. The said settlement deed was not acted upon. Theplaintiff had never taken possession either actual or constructive of the suitproperties at any point of time. The cancellation deed dated 4.6.83 is a freeand voluntary document executed by the first defendant. There was nonecessity for him to make any such threat. The suit properties are inexclusive possession and enjoyment of the defendants 2 and 3. The suit isfrivolous and vexatious. The plaintiff is not entitled to any relief asclaimed in the plaint.

17. The second defendant has filed additional written statement alleging that the plaintiff is not entitled to the alternate relief prayed forpossession; that the plaintiff has no title to the suit properties; that theplaintiff is also not entitled to any mesne profits; that the properties havebeen valued at Rs.40000/- in the alleged settlement itself and that not less than Rs.100/- is paid towards kist.

18. Both the appeals have been preferred from a common judgment anddecree of the learned Subordinate Judge in the above two suits, one forpartition and the other for permanent injunction.19. For the sake of convenience, the parties will hereinafter bereferred to as arrayed in O.S.363/81 viz. plaintiff and defendants.20. The learned Counsel appearing for the appellants would submitthat the judgment and decree of the lower Court are not sustainable in law;that in the instant case, though the burden is on the plaintiff to prove thecase, he miserably failed to do so; that the lower court while dealing withissues 1, 2, 9 and 10, has dealt with the case as if the defendants 3 to 6claiming under the 2nd defendant, have failed to prove that the saidproperties were purchased by the second defendant from and out of her fundsand not out of the income from the joint family properties; that the lowercourt has completely ignored even the fundamental position of Hindu Law thatin the case of a coparcener purchasing a property in his own name whileremaining joint with the other members of the family, it is for the othermembers to prove affirmatively that the joint family is possessed ofsufficient means and nucleus to aid the said acquisition and only if theysucceed in doing so, the onus shifts to the acquirer to prove that theproperty in question was acquired by him without any aid from the familyproperties; that the lower court has overlooked the fact that at the time offiling the written statement, defendants 4 to 6 have not acquired theproperties standing in the name of the 2nd defendant, and it was not to theirinterest to plead any false case; that the lower court should have found thatthe first and second defendants were forcibly kidnapped by the plaintiff andthe defendants 7 and 9 to 11 and was kept as a prisoner in their custody; thatshe has been forced to depose in court as D.W.2 contrary to her own pleadingsin her written statement; and that the registration copy of the Will had beenmarked as Ex.B.422 and the lower court has completely ignored the saiddocument which completely cuts at the plaintiff's case of Benami purchase andalso proves that the second defendant has given perjured testimony in court asD.W.1 only on the compulsion of the plaintiff and defendants 7 and 9 to 11.21. The learned counsel for the appellants has further contended thatthe lower court should have given the greatest weight for the pleas made inthe written statement of the first defendant since it was against her owninterest and was not in any way actuated by any animosity towards plaintiff orseventh defendant and their sons; that the observation of the lower court thatthe said case is not believable since the second defendant has not executedany power in his favour is absolutely meaningless; that in respect of Cschedule lands in the villages of Maiyittanpatti, Chittor, andNallanayankanpatty, kists have been paid only by the second defendant, andthey all have been produced into court by the fourth defendant, who is thesettlees from the second defendant; that the plaintiff has produced thesubsequent kist receipts only for faslis 1394 (1984-85) and subsequent theretowhich are marked as Exs.A.6 to A.16 after the second defendant was kidnappedand kept in the illegal custody of the plaintiff in May 1983; that the lowercourt should have found that the plaintiff has miserably failed in provingthat the family had sufficient income to make the said purchase benami in thename of the defendant; that the other motives sought to be put forward in thecourse of evidence that Balu Reddiar brother of the first defendant was a

court bird and he could make a claim if they are purchased in the name of thefirst defendant and hence, purchases were made benami in the name of the 2nddefendant, have not been pleaded in the plaint or in the reply statement; thatthe lower court should have rejected the said motive; that so far as theMudakathan house and lands are concerned viz. B schedule item 4 and Cschedule last item, the original sale deeds relating to them namely Exs.B.1and B.2 are produced in Court only by 2nd defendant; that on the other handthe plaintiff has not produced any bills, vouchers or any document to provethat was spent for the construction of the house by the joint family and noindependent witnesses have been examined to prove that the house wasconstructed by plaintiff; that the lower court has failed to see that theplaintiff performed his daughter's marriage in his mother's house describingit as his house, that cannot be a ground to hold that the house belongs to theplaintiff; that it has to be noted that the explanation of D3 as D.W.4 was notconsidered by the trial Court; that if the properties were joint familyproperties, then the pattas should have been transferred in the name of theplaintiff, as he was managing the same; that Ex.B45 settlement deed is trueand valid and binding on the plaintiff; that it is pertinent to note that theexecution of the settlement deed has been admitted by the second defendant inher written statement in O.S.59/85; that the recitals in Ex.B397 would provethat the property comprised in the settlement deed are all self acquired andabsolute properties of the second defendant; that it is pertinent to note thatEx.B45 has been acted upon; that the plaintiff has no right to attack thesettlement deed, since the properties therein are not joint family properties;that the plaintiff has also no right to attack Exs.B393 to B396 sale deedsexecuted by the second defendant's power agent Padmanabhan; that the plaintiffas third party to those sale deeds is not entitled to question theconsideration thereunder; that the judgment and decree of the lower Court inO.S.59/85 has got to be set aside and and the suit be decreed; and that thefinding of the lower Court in O.S.363/81 in respect of items 3 and 4 of BSchedule and all the items in C Schedule has got to be set aside and the suitin that respect be dismissed. In support of his contention, the learnedCounsel for the appellants cited the following decisions:- 1) 1975 (2) MLJ184; 2) 1970 (1) MLJ 105; 3) AIR 1965 SC 271; 4) AIR 1966 SC 605; 5) AIR 1977SC 40 9; 6) AIR 1980 SC 727; 7) AIR 1977 SC 2230 and 8) AIR 1995 MADRAS 415 .22. The learned Counsel for the contesting respondents would submitthat the lower Court was perfectly correct in dismissing the suit filed by thefourth defendant and in granting a preliminary decree in favour of theplaintiff; that the suit properties are ancestral properties; that 'B'Schedule immovable properties were purchased in the name of the firstdefendant, while 'C' Schedule properties were purchased in the name of thesecond defendant, both from and out of the income from the ancestral nucleusand also from the joint efforts of the plaintiffs and the defendants 1, 3 and7; that both 'B' and 'C' Schedule properties belonged to the joint family;that the fourth defendant is not entitled to the properties in pursuance ofthe alleged settlement deed; that the alleged settlement deed was not giveneffect to; that the fourth defendant was not given possession of the landsmentioned in the alleged settlement deed; that the said settlement deed wasexecuted by the second defendant at the instance of the third defendant andthe husband of the fourth defendant; that neither the plaintiff nor the 7thdefendant is liable to render accounts for the profits; that it is pertinent

to note that the cancellation deed dated 4.3.1983 is proper and legal; thatthe power of attorney executed by the second defendant in favour of thehusband of the fourth defendant was misused by the fourth defendant and foursale deeds in respect of the properties in Mudukathan Village werefraudulently brought into existence; that the said cancellation deed wasexecuted by the second defendant out of free will and volition; that the lowerCourt only after careful consideration of the evidence both oral anddocumentary has granted a preliminary decree in favour of the plaintiff, andin view of the available evidence, there is nothing to interfere in the saidfinding; and hence, both the appeals have got to be dismissed. In support ofhis contentions, the learned Counsel relied on the decisions reported in 1)1979 (4) SCC 790; 2) AIR 1974 SC 471; 3) 1977 (1) SCC 60 and 4) 1975 (2) MLJ

73.

23. The appellants in A.S.1122/86 who are the defendants 3 to 6 in asuit in O.S.363/81 for partition, have brought forth this appeal challengingthat part of the judgment wherein the lower Court recorded a finding thatitems 3 and 4 of 'B' Schedule and 'C' Schedule immovable properties belongedto the joint family, and the plaintiff was entitled to 5/16 share in thatproperties also.

24. The relationship of the parties as set out in Ex.A1 Genealogy isadmitted. It is admitted by the parties that the first defendant and hisbrother entered into an oral partition in respect of the family properties in1934, and about 11 acres of punja lands and 2 ¬ acres of nanja lands wereallotted to the share of the first defendant. The family consisting of thefirst defendant and his children continued to be joint till the time of theinstant suit for partition. Claiming 5/16th share in all the plaint Scheduleproperties, the first respondent/plaintiff has averred that the propertiesdescribed in 'B' Schedule were purchased in the name of the first defendantfrom and out of the income from the ancestral properties and from the incomederived of the joint efforts of the plaintiff, and the properties described in'C' Schedule were purchased in the name of the second defendant from and outof the income from the ancestral nucleus and from the joint efforts of theplaintiff and defendants 1, 3 and 7; that the second defendant was only abenami, and the properties actually belonged to the joint family. Whileadmitting that 'A' Schedule properties belonged to the joint family and areavailable for partition, the appellants/defendants 3 to 6 resisted the suitstating that items 3 and 4 in 'B' Schedule were exclusive properties of thefirst defendant; that the properties described in 'C' Schedule were acquiredby the second defendant from and out of her Sreedhana properties; that she washaving money lending transaction from the time of her marriage, and thus,those properties were not partible, nor could the plaintiff claim any share inthose properties. Thus, the appeal in A.S.1122/86 centres round the primequestion whether those properties belonged to the joint family as contended bythe first respondent/plaintiff or they were self acquisitions as contended bythe appellants-defendants 3 to 6 .

25. The plaintiff has examined himself as P.W.1. In his evidence, hehas stated that all the properties found in the Schedules including items 3and 4 in 'B' Schedule and all the properties in 'C' Schedule belonged to thejoint family, though they were purchased in the name of the second defendant.Contrary to the above, the third defendant examined himself as D.W.4 hasdeposed that those properties were self acquisitions of their mother, the second defendant from and out of the income that she derived from the moneylending business.

26. The appellants have admitted that the immovable properties foundin 'A' Schedule and items 1 and 2 in 'B' Schedule belonged to the jointfamily. P.W.1 has deposed that though the sale deeds stood in the name of thesecond defendant, the said items of properties were purchased from and out ofthe income derived from the joint family properties. It is not the case ofthe appellants/defendants 3 to 6 that the landed properties which wereallotted to the share of the first defendant were not revenue yielding. Ascrutiny of the documentary evidence would reveal that the items 3 and 4 in'B' Schedule and all the items in 'C' Schedule were purchased under Exs.A5,B1, B23 to B31, B33 to B41; and that the first sale in favour of the seconddefendant had taken place on 2.6.1936 under Ex.B24, and all the sale deeds inrespect of the purchase of different items of properties found in theSchedules have followed, and the last two sale deeds executed in favour of thesecond defendant on 23.1.1960 and 14.6.1960 were marked as Exs.B1 and B2respectively. It is pertinent to note that the sale consideration under allthe above sale deeds except Exs.B1 and B2, were only small and meagre.27. The recitals found under Exs.B24, B25, B27, B30 and B34 wouldreveal that the first defendant has paid the consideration on behalf of thesecond defendant. The stamp papers for Ex.B36 sale deed were purchased in thename of the first defendant. Under Ex.B40 sale deed, the seventh defendanthas paid the consideration on behalf of the second defendant. Ex.A17 mortgagedeed dated 19.9.1952 also contains a recital that the consideration was paidby the seventh defendant. A house site was conveyed to the second defendantunder Ex.A5 sale deed dated 26.11.1936 for a consideration of Rs.200/-, whichwas paid by the first defendant on behalf of the second defendant. The seconditem of 'C' Schedule with an extent of 10 acres was purchased on 23.1.19 60under Ex.B1 for a consideration of Rs.20,000/-. P.W.1 has stated that thefirst defendant had moneys in his Bank account, out of which Rs.8,000/- wastaken on 25.1.1960 as evidenced by Ex.A2, and the same was utilised along withthe family funds for the purchase of the said properties. The recitals foundin all the above sale deeds would be indicative of the fact that the saleconsideration has proceeded from the first defendant or was paid by theseventh defendant and not from the second defendant. The contention of theappellants' side that the second defendant was a womenfolk of olden days, andhence, she did not go to the Sub Registrar's Office, and only under suchcircumstances, the first defendant or the seventh defendant has made thepayment on behalf of the second defendant cannot be countenanced.28. The properties are situate at Maiyittampatty and MadukathanVillages. It is not in dispute that the second defendant was living with herhusband at both the places. It is contended by the third defendant that hewas managing the immovable properties covered under Exs. B1 and B2 on behalfof the second defendant. The third defendant has no explanation to offer asto under what circumstances, the patta was issued in his favour for five acresand another patta in the name of the second defendant for five acres, whilethe total extent of 10 acres stood in the name of the second defendant. It isadmitted by the third defendant that he was looking after the agriculturaloperations in the landed properties situate at Madukathan Village. The nonmaintenance of separate accounts by the second defendant in respect of theagricultural income would also indicate that those properties were never

treated as the separate properties of the second defendant. From the evidenceof the third defendant, it would be clear that he was maintaining the accountsin respect of the agricultural income derived from the lands situate at oneplace, while the plaintiff and the seventh defendant were maintaining theaccounts in respect of the lands situate in the other Village. All the abovewould clearly indicate that though the landed properties stood in the name ofthe second defendant, they were treated only as the joint family properties.29. According to P.W.1, his paternal uncle convened a panchayat anddemanded a partition in respect of the immovable properties available in thehands of the first defendant's family subsequent to the oral partition thattook place in the year 1934, and in the said panchayat, it was decided thatthose properties were acquired by the family members of the first defendantfrom and out of their own exertion, and hence, those properties could not bedivided. Not even a suggestion was put to P.W.1, denying the said panchayator the decision arrived thereon. This assertion of P.W.1 as to the f act ofpanchayat is fully corroborated by the evidence of the defendants 2 and 7.According to the said witnesses, the properties were purchased in the name ofthe second defendant only in anticipation of any claim that might be made bythe paternal uncle of the plaintiff. On the other hand, the prime defencethat was raised by the appellants/defendants 3 to 6 that those properties wereacquired by the second defendant from and out of her sreedhana properties andalso out of the income which she earned through money lending transactionsfrom 1929 onwards cannot be countenanced for more reasons than one. Nomaterial is available or placed before the Court to show that she had anymoney lending transaction from 1929. The second defendant examined as D.W.1has categorically admitted that she had no money lending transactions at all.P.Ws.2 and 3, two aged villagers, who were acquainted with the family, havecategorically deposed that she had no money lending business. The defendants3 and 4 were not competent to speak about the alleged money lending businessof the second defendant, in view of their age during the relevant period. Thethird defendant has categorically admitted that he did not know anything aboutthe said money lending business, and no accounts were maintained for the same.The second defendant has flatly denied the payment of any money or gift ofjewels at the time of her marriage. A reading of the evidence of the thirddefendant would clearly reveal that he was neither competent nor had anyknowledge as to the acquisition of the properties under the sale deeds, whichstood in the name of the second defendant. In short, it can be stated that noproof is available to show or even infer that the second defendant was inpossession of funds or any money lending business yielding income to purchasethe properties in question. That apart, taking into consideration the age ofthe plaintiff and his brothers viz. defendants 3 and 7 at the time of thesaid acquisitions, they could not be competent to speak about the source fromwhich the considerations were paid. The first defendant father and the seconddefendant mother were the only competent witnesses to speak about those factseffectively. Pending the suit, the first defendant died on 29.3.84 . Thus,the only witness, who could well speak about the acquisitions made under thosedocuments, was the second defendant alone.30. It is true that the second defendant originally filed a writtenstatement stating that the above items of properties were her selfacquisitions, and they were not joint family properties. During the pendencyof the suit, she filed I.A.No.185/84 seeking amendment of the earlier written

statement. On service of a copy of the said application and affidavit, thethird defendant has also filed I.A.No.201/94 seeking permission of the Courtto file additional written statement. However, both the applications were notentertained. The second defendant was examined as D.W.1. She hascategorically admitted that the two items of properties in 'B' Schedule andall the items of properties in 'C' Schedule were purchased by and from out ofthe income of the joint family in her name; and that she was not possessed offunds, nor was she given any Sreedhana from her parental home to make the saidacquisitions. Thus, by those admissions she has not only given up her casepleaded in the written statement, but also has admitted the case of theplaintiff that all the properties belonged to the joint family. The learnedCounsel appearing for the appellants with vigour and vehemence would contendthat her evidence has got to be brushed aside, since she has deviated from herplea in the written statement and has deposed contra to the averments therein;that due to compelled circumstances and threat, she crossed to the side of theplaintiff at the time of trial, and hence, her evidence should not be givenany credence, and the averments in her written statement would hold good andshould be taken into consideration. The court is afraid whether it couldaccept such a plea, since it cannot stand the scrutiny of law. True it is,she filed a written statement originally stating that the properties were selfacquisitions and were not joint family properties. She could well exerciseher right either to give evidence in the line of the written statement or togive up her plea therein. If the contention of the learned Counsel for theappellants has got to be accepted, any party, who gets into the box, cannotdepose according to his/her wish, will and conscience, and the freedom of thewitness would be jeopardised.

31. It is contended by the learned Counsel for the appellants thatthe admissions made by the second defendant in her evidence were brought aboutby threat and compulsion exercised over her at the time of trial and were notmade out of her free will. Admittedly, the second defendant was anilliterate, and she was 83 years old at the time when she was examined inCourt, and she was suffering from lack of vision and hearing for number ofyears. She had no bank accounts of her own. She has categorically deposedthat she did not know even the name of her Advocate, and she signed in all thepapers pertaining to the case in the house of the third defendant, and she waskept in confinement by the third defendant at different places. All the abovewould clearly reveal that the original written statement by the seconddefendant was an outcome of the prominent role played by the third defendantto suit his defence. From the available evidence, it is clear that the agedsecond defendant was in the custody of the third defendant at the time offiling of the original written statement and was also in the custody of theplaintiff at the time when she filed the interlocutory application forreception of the additional written statement. This would show that theparties have taken advantage of the situation and pressed her into service tosuit their case. It is significant to note that she has expressed her desirethat the properties should be equally shared by her sons, which would indicatethat she had distributed her affection equally among all her sons. Theappellants are unable to adduce any reason why she should come forward todepose that the properties were not her self acquisitions, but were purchasedfrom and out of the joint family funds.

32. In the instant case, though the second defendant has claimed the

32. In the instant case, though the second defendant has claimed the above items of properties as her self acquisitions, she has adduced evidenceas a defence witness that those properties were not acquired by her out of herincome. Not only she has stopped with it, but also has made a candidadmission that these properties were purchased by and belonging to the jointfamily. Significant it is to note that these appellants are not claiming anyright, title or interest to the above properties independently, but onlythrough their mother, the second defendant. While so, they cannot put forth abetter claim than the second defendant had in the properties. While thesecond defendant herself has admitted that she has no right in the properties,the appellants who claim through her, cannot be permitted to say that theycould claim any interest over the same, since they cannot claim more royalthan the King. In the instant case, D.W.1 was cross examined in full lengthby the appellants. S.58 of the Evidence Act reads:

"58. Facts admitted need not be proved:- No fact need be proved in anyproceeding which the parties thereto or their agents agree to admit at thehearing, or which, before the hearing, they agree to admit by any writingunder their hands, or which by any rule of pleading in force at the time theyare deemed to have admitted by their pleadings:Provided that the Court may, in its discretion, require the facts admitted tobe proved otherwise than by such admissions."

33. The Apex Court had an occasion to consider the effect ofadmission made by a party in evidence in UNION OF INDIA V. MOKSH BUILDERS ANDFINANCIERS LTD. AND OTHERS (AIR 1977 SUPREME COURT 409). It has been held inthe said decision thus:"An admission by a party is substantive evidence of the fact admitted, andadmissions duly proved are admissible evidence irrespective of whether theparty making them appeared in the witness box or not and whether that partywhen appearing as witness was confronted with those statements incase it made a statement contrary to those admissions."

34. It remains to be stated that the fourth defendant filed a suit in O.S.No.59/85 for recovery of possession against the second defendant andothers in respect of the properties alleged to have been settled in her favourby the second defendant under Ex.B45 settlement deed dated 18.4.1983, and thesaid suit was also tried along with the instant suit. In the said suit, thesecond defendant has filed a detailed written statement stating that theproperties covered under the settlement deed belonged to the joint family andnot her self acquisitions, and thus, she was not competent to execute asettlement deed as found under Ex.B45. Under the aforestated situation, theadmissions made by the second defendant in her evidence as D.W.1 can be takenas a substantive piece of evidence to the fact that the above mentionedproperties in respect of which now the appellants have brought forth theappeal in A.S.1122/86, belonged to the joi nt family and not her acquisitions.35. The contention of the plaintiff that the properties covered underthe above sale deeds were purchased in the name of the second defendant benamihas got to be accepted, in view of the admissions made by the seconddefendant. The third defendant has categorically admitted that items 1 and 2of 'B' Schedule were purchased from the income of 'A' Schedule properties, and'D' Schedule properties were purchased in the name of his brother from out ofthe income of the joint family. This would indicate that it was a practicefollowed in the family to purchase properties in the names of the members ofthe family from and out of the income of the joint family. In the above cited decision reported in AIR 1977 SUPREME COURT 409, the Apex Court has held asfollows:

Conclusion

"The burden of proof is, however not static, and may shift during the courseof the evidence. Thus while the burden initially rests on the party who wouldfail if no evidence is led at all, after the evidence is recorded, it restsupon the party against whom judgment would be given if no further evidencewere adduced by either side i.e. on the evidence on record. Where evidencehas been led by the contesting parties on the question in issue, abstractconsiderations of onus are out of place, and the truth or otherwise of thecase must always be adjudged on the evidence led by the parties. This will beso if the court finds that there is no difficulty in arriving at a definiteconclusion. In the present case, the purchase of a house was held to be"benami"."

36. As rightly contended by the learned Counsel for the appellants, aduty is cast upon the plaintiff demanding partition to plead and provesatisfactorily that the joint family had nucleus, wherefrom there wassufficient flow of income, with which the properties in question wereacquired. In the instant case, it cannot be stated that there was lack ofrequisite pleading. On the other hand, the plaintiff has placed necessaryaverments in the plaint. He has discharged his burden that the joint familyowned 11 acres of punja lands and 2 ¬ acres of nanja lands, which were revenueyielding. The members of the family who continued to be joint, havephysically contributed, which resulted in the revenue derived therefrom. Allthe above would lead to the irresistible and inescapable conclusion that items3 and 4 in 'B' Schedule and all the items in 'C' Schedule were purchased inthe name of the second defendant benami, but from and out of the joint familyfunds; and that they were treated as joint family properties all along.Therefore, the lower Court was perfectly correct in grating a preliminarydecree in favour of the first respondent-plaintiff, and there is nothing tointerfere in that part of the judgment and decree of the Court below.37. Assailing the judgment of the Court below in respect of thefinding that Ex.B45 settlement deed executed by the second defendant in favourof the fourth defendant was null and void, the learned Counsel for theappellant-fourth defendant would submit that the lower Court went wrong inobserving that the second defendant was not competent to execute thesettlement deed, since the properties belonged to the joint family and werenot her self acquisitions, and apart from that, the said settlement was alsonot acted upon; that the second defendant owned all the properties stated inthe settlement deed; that the second defendant has executed all the documentsbecause of love and affection for the fourth defendant; that the saidsettlement was a revocable one; that in view of the fact that possession washanded over to the fourth defendant, the said settlement has been acted upon;and that the fourth defendant has adduced sufficient documentary evidence forpayment of kist by the fourth defendant subsequent to the settlement. Relyingon a decision of the Division Bench of this Court reported in AIR 1995 MADRAS415 (KAMAKSHI AMMAL V. RAJALAKSHMI AND OTHERS), the learned Counsel for theappellant would submit that handing over of possession is not necessary; andthat there was acceptance of the gift in question, and the deed of revocationexecuted by the second defendant under Ex.B397 was invalid, since the same wasbrought about by the plaintiff to make illegal gain out of it and to defeatthe rights of the fourth defendant, and apart from that, the said settlement

deed was revocable. After careful consideration of the rival submissions, theCourt is of the view that the settlement deed executed by the second defendantin favour of the fourth defendant, as found under Ex.B45 is invalid for thesimple reason that the second defendant has no right to bequeath the jointfamily properties found therein. The fourth defendant has filed the suit inO.S.59/85 basing her cause of action on the settlement deed executed by thesecond defendant in her favour. That apart, the said bequeath is hit by theDoctrine of Lis Pendens. The instant suit for partition was filed in the year1981, while Ex.B45 settlement deed was executed on 18.4.1983. Thus, withoutany hesitation, the said settlement deed can be declared as null and void.Hence, the fourth defendant cannot claim any right under the settlement.Therefore, it has to be held that the fourth defendant is not entitled eitherfor recovery of possession or for permanent injunction. The lower Court wasright in dismissing the suit filed by her.38. In the result, both the appeal suits are dismissed, leaving theparties to bear their costs.

Index: YesInternet: Yes

To:1. The II Additional Subordinate Judge,Madurai (with records).

2. The Record Keeper,V.R.Section,High Court, Madras.