p.arumugham vs p.balasubramaniam on 8 august, 2008

IN THE HIGH COURT OF JUDICATURE OF MADRAS

DATED: 08.08.2008

CORAM:

THE HONOURABLE MR. JUSTICE G.RAJASURIA

A.S.No.981 of 1993

1. P.Arumugham

2. P.Chidambaram .. Appellants

vs

1. P.Balasubramaniam

2. Palaniammal

3. Vanchi Ammal

4. R.Muthusamy Chettiar (died)

5. Jayadevi

6. M.Ranganathan

7. M.Rajendran

8. V.Muthulakshmi

9. D.Mahalakshmi

10.G.Mallika .. Respondents

Appeal against the judgment and decree of the learned II Additional Subordinate Judge, Coimbatore passed inO.S.No. 509 of 1985 dated 18.08.1993.

For appellant : Mr.S.V.Jayaraman, S.C. For

Mr.G.Ravishankar

For respondents : Mr.P.Veeraraghavan for R1 Mr.C.R.Prasannan for RR5 to 10

JUDGMENT

This appeal is focussed as against the judgement and decree dated 18.8.1993, passed in O.S.No.509 of 1985by the learned II Additional Subordinate Judge, Coimbatore. For convenience sake, the parties are referred tohere under according to their litigative status before the trial Court.

2. Heard the learned counsel appearing for the parties.

P.Arumugham vs P.Balasubramaniam on 8 August, 2008

Indian Kanoon - http://indiankanoon.org/doc/1060730/ 1

3. Tersely but broadly, succinctly but narratively, the case of the plaintiffs as stood exposited from theaverments in the plaint could be portrayed thus:

(a) One Periyapalaniappa Chetty had three sons, namely, the first plaintiff and the defendants 1 and 2 and twodaughters, namely, D3 and D4, all born through his first wife Marudhayammal. The second plaintiff was hissecond wife.

(b) Periyapalaniappa Chetty died on 16.4.1975, leaving behind the aforesaid two plaintiffs and defendants 1 to4 as his legal heirs. The suit properties described in the schedule of the plaint belonged to the joint family. Theplaintiffs and defendants 1 to 4 constituted the Hindu Joint Family and they have been enjoying thoseproperties jointly.

(c) The defendants, by exercising undue influence over Periyapalaniappa Chetty, purchased the landmeasuring an extent of 2.34 acres in Survey Nos.222/2 and 271 for a sum of Rs.9000/- from out of the jointfamily income. Defendants 1 to 4 tried to dispose of the land in Survey No.532 to an extent of 1.99 acre infavour of D5, R.Muthusamy Chettiar. Whereupon the lawyer's notice was sent by the second plaintiff, forwhich, the defendants replied with false allegations as though there was a partition of the lands and housesduring the year 1962 itself among the co-sharers concerned. (d) Inasmuch as D5 purchased a portion of thesuit property during the pendency of the suit from D1 and D2, who had no right to alienate the same, D5 hasbeen added in the suit subsequently. After the death of Periyapalaniappa Chetty, D1, being the eldest son inthe family, became the kartha of the family. He obtained the compensation amount of Rs.17,365/- from theGovernment in connection with the acquisition of the joint family land measuring an extent of 3.02 acres inSurvey No.344/1 by the Government and he is willing for apportionment of the said amount among themembers of the joint family. Despite the incessant demand made by the plaintiffs for partition of the suitproperties, the defendants were evading the same under one protext or other. (e) As per law, the first plaintiffand defendants 1 and 2 are entitled to 1/4th share each in the suit property, consequent upon the death ofPeriyapalaniappa Chetty, who had 1/4th share in the suit property. The said 1/4th share of PeriyapalaniappaChetty is to be apportioned among his wife and children. Accordingly, the plaintiffs prayed for partition andfor mesne profits.

4. Per contra, denying and refuting, challenging and impugning the allegations and averments in the plaint, D1and D2 filed the written statement, the pith and marrow of it would run thus:-

The properties of the family were partitioned even 23 years anterior to the filing of the suit during the life timeof Periyapalaniappa Chetty, who himself did not take any share for himself, as he was very old at that time;during the year 1963 itself, the first plaintiff got himself separated from the family, after getting his share, soas to say an extent of 3.30 acres in Survey Number 344 in Vadavalli Village and an extent of 6 cents of vacantland in the Western portion of the 4th Schedule of the plaint (the description is not found to be correct as perthe facts available on record); the defendants were allotted with the lands in Survey No.558/A, 571/1 and532/1 and the house properties described in items 1 to 3 of the II Schedule of the plaint; the defendants 1 and2 were unmarried at the relevant time and they were living with their parents; as per the terms of the saidpartition, D1 and D2 started enjoying the agricultural lands on the Southern half and Northern halfrespectively; D1 was allotted with the Western half of the house property and D2 was allotted with the Easternhalf of it; the said Periyapalaniyappa Chetty was maintained by D1 and their mother(P2) was maintained byD2; Only six months anterior to the filing of the suit, P2 joined with the first plaintiff in filing the suit; in fact,the parents relinquished their rights in favour of D1 an D2 as they were maintained by them only; the firstplaintiff, after such partition, purchased house properties in his name and is enjoying the same, but he has notadded those properties for being partitioned, in the suit; defendants 1 and 2 purchased an extent of 2.34 acresof agricultural land in Survey No.221 and 222/2 as per the sale Deed dated 21.6.1968, out of their ownearnings; since the land in Survey No.344, which was allotted to the share of the first plaintiff was acquired bythe Government, he received the compensation amount; separate patta books were also issued in respect of therespective sharers and they have been paying kist separately; the suit is barred by limitation and the plaintiffs



prayer for incidental reliefs, including the mesne profits are untenable. Accordingly, the defendants prayed fordismissal of the suit.

5. The trial Court framed the relevant issues. During the trial, on the side of the plaintiffs oneBalasubramaniam was examined as P.W.1 and Ex.A1 to A13 were marked. On behalf of the defendants, thesecond defendant-Chinnappan was examined as D.W.1, and fourth defendant Vanjiammal was examined asD.W.2, and 15 documents were marked as Ex.B1 to Ex.B15. Ultimately, the trial Court decreed the suit andpassed the preliminary decree allotting an extent of 7/24th share in favour of P1 and 1/24th share in favour ofP2; granting liberty to the plaintiffs to initiate separate action to claim mesne profits.

6. Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, D1 and D2 havepreferred this appeal on the following grounds, the pith and marrow of them would run thus:

(1) the trial Court erred in holding that the suit properties are the joint family properties, ignoring the oralpartition, which was effected during the year 1963;

(2) the trial Court should not have decreed the suit ignoring the plea of limitation;

(3) the admission made by the first plaintiff in his deposition was not considered by the trial Court;

(4) the factum of the first plaintiff having received the entire compensation amount from the Government inrespect of the land acquired by the Government, which was earlier allotted to the plaintiffs in the oralpartition, was not considered by the trial Court;

(5) the trial Court failed to hold that the land in Survey Nos.222/2, 221/2 are the self-acquired properties ofD1 and D2 as per Ex.A7.

(6) the first plaintiff purchased two houses in his name and it was not his case that he purchased them fromout of the income from his wife's properties and these facts have not been considered by the trial Court;

(7) the lower Court had given undue weightage to Ex.B8 and Ex.B9 notices sent by the Survey Departmentduring the year 1976;

(8) Without any basis, Ex.B1 to Ex.B15 and the deposition of D.W.1 were discarded by the trial Court.

(9) the recitals in Ex.A8-the partition deed, which emerged between D1 and D2 were wrongly considered bythe trial Court along with the evidence of P.W.1.

(10)the trial Court failed to hold that in any event, the said compensation received by the first plaintiff and thetwo houses purchased by him should also be treated as joint family property, for partition.

Accordingly, they prayed for setting aside of the judgement and decree of the trial Court.

7. The learned counsel for the contesting respondents/defendants would raise the plea of res-judicata bypresenting the memo of the first respondent to the effect that the common judgement and decree dated18.8.1993 was relating to O.S.No.509 of 1985, on the file the Court of II Additional Sub-Judge, Coimbatore,which was filed by the plaintiffs seeking partition and O.S.No.337 of 1988, which was filed by the firstplaintiff in O.S.No.509 of 1985 for injunction; the present appeal is focussed as against the portion of thecommon judgement and decree relating to O.S.No.509 of 1985, at the instance of defendants 1 and 2 therein;whereas, the same defendants herein filed appeal A.S.No.154/94 before the I Additional District Judge cumChief Judicial Magistrate, Coimbatore, as against the portion of the said common judgement and decreerelating to O.S.No.337 of 1988, and the said appeal was dismissed for default on 31.12.1996 itself. As such,



the said judgement and decree dated 31.12.1996 passed in A.S.No.154/94 would operate as res-judicata forthe appellants herein to prosecute this appeal.

8. Whereas, the learned counsel for the appellants would contend that the dismissal of A.S.No.154/94 by theDistrict Court for default would in no way hamper the appellants herein to argue the appeal before this Court,as the said appeal, which was dismissed, was relating to O.S.No.337 of 1988, which was one for seeking bareinjunction, and it was not a title suit. Both sides ultimately agreed that the objection based on res-judicata alsocould be decided along with the adjudication in the appeal. As such the following points emerged forconsideration: (i) Whether this appeal is barred by res-judicata in view of the judgement and decree dated31.12.1996 in A.S.No.154/94?

(ii) Whether there was any oral partition among the family members during the year 1963 and shares allottedthereunder as contended by defendants 1 and 2?

(iii) Whether the suit is bad for partial partition?

(iii) Whether the compensation amount received by the first plaintiff from the Government in respect of theland acquisition proceedings should also be subjected to partition along with the two houses purchased byhim? and Whether the suit is bad for partial partition?

(iv) What shall be the shares of the respective co-sharers?

(v) What are the rights of D5 in having purchased certain items of the suit property from D1 and D2?

(vi) Whether there is any infirmity in the judgement and decree of the trial Court?

Point No.(i): The learned Senior counsel for the first respondent/plaintiff placing reliance on variousprecedents would develop his argument that if by way of a common judgement two suits are decided, out ofwhich, two appeals are filed, then the disposal of one appeal would have impact on the adjudication of theo the r pend ing appea l . I t i s a l so h i s con t en t ion t ha t t he d i smi s sa l o f t he ea r l i e r appea lA.S.No.154/94(O.S.No.337 of 1988) by the First Additional-cum-Chief Judicial Magistrate, Coimbatore, forde-fault, would operate as res-judicata.

9. Whereas, the learned counsel for the appellants/D1 and D2 would submit that absolutely there is no scopefor ushering in the principle of res-judicata in the facts and circumstances of this appeal, in fact the previousappeal, namely, A.S.No.154/1984(O.S.No.337 of 1988) was dismissed for default and it was an appeal asagainst the decreeing of the suit O.S.No.337 of 1988, which was filed for bare injunction.

10. At this juncture, it is just and necessary to refer to the following decisions cited by the learned counsel forthe plaintiff as under:-

82 L.W.425-KARTHIAN KONE, CO-TRUSTEE OF AYAN PAPAKUDI CHOULTRY CHARITY V.BAGHYATHAMMAL CO-TRUSTEE OF AYAN PAPAKUDI CHOULTRY CHARITY - an excerpt from itwould run thus:-

". . . . . . . . . . In Rajlakshmi Desi v. Banamali Sen (3) their Lordships point out that the test of res judicata isthe identity of title in the two litigations and that so long as the competency of the former court to try thesubsequent suit cannot be denied, the general rule of res judicata applies. Even apart from this, the defendantKartik Kone against whom the point was decided in the second appeal, sought to have judgment of the Courtreviewed. Undoubtedly, Kartik Kone could have appealed against the decision, for otherwise it is difficult tosee how a review application could at all have been maintained. The learned Judge in dealing with the reviewapplication pointed out that though the question was raised fo the first time in the second appeal, at the time of



the hearing as objection was raised, and, as we said earlier, both sides argued the question, before the learnedJudge rendered his decision in the second appeal. We may further point out that far from the observations ofthe learned Judge being in the nature of an obiter dicta, the actual decision on this point was incorporated inthe decree in the second appeal, the clause of the decree reading thus: "That the first defendant(Bhagyathammal) shall also be entitled to joint management along with the plaintiff (Kartik Kone) of the trustproperties and the first defendant shall be at liberty to take appropriate steps to work out her rights to jointmanagement by way of separate proceedings..."

There is accordingly a decree embodying the decision of the Court and it seems to us that it can no longer bemaintained that the observations are merely obiter dicta having no executable force. It is not open to KartikKone to question the decree unless he can say it is nullity which it obviously is not. In Kolu Nambiar v.Chathu Nambiar (4), this Court held that a matter could be in issue under S.11 of the Civil Procedure Codeeven though an express issue had not been framed. It would be in issue if the decision about it is necessary forthe decree. They say further that if the finding has been arrived on a matter which is not necessary for thedisposal of the suit and it is not made the basis of the decree which is given in spite of it, that matter cannot besaid to have been substantially in issue between the parties and such finding would be more in the nature ofobiter dicta. It follows that where the finding was incorporated in a decree, the position would clearly beotherwise. This has been emphasised in Sankara Mahalinga Chettiar v. Muthulakshmi (5), where it was heldthat though a finding might be unnecessary, yet if it is embodied in the decree, it will operate as res judicata."

11. The perusal of it would at once make the point clear that the aforesaid decision is not enuring to thebenefit of the plaintiff and it is quite obvious that in the cited decision their Lordships clearly observed that ifa decree embodies the decision of the Court, it can no longer be contended that the observations are merelyobiter dicta, having no executable force.

12. Here in the judgement dated 31.12.1986, passed in A.S.No.154/94 by the I Additional DistrictJudge-cum-Chief Judicial Magistrate, Coimbatore, absolutely there is no such finding is found embodiedrelating to the title of any one over the suit property. The said injunction suit itself was an off shoot litigation,which was one for injunction. A bare perusal of the common judgement in O.S.No.509 of 1985 andO.S.No.337 of 1988 passed by the Sub Court, Coimbatore on 18.8.1993 would evince and evidence that onlytwo issues were framed concerning O.S.No.337 of 1988 as under: (i) Whether the plaintiff is entitled topermanent injunction as prayed for?;

(ii) to what relief the plaintiff is entitled to?

13. No common issues in these two suits were framed and decided. The said injunction suit O.S.No.337 of1988 was filed by Balasubramaniam-the first respondent/plaintiff herein, even during the pendency ofO.S.509 of 1985, which was filed by the same Balasubramaniam and his mother Palaniammal for thesubstantive relief of partition and consequential reliefs. Instead of filing a separate suit, namely, O.S.No.337of 1988, for injunction, he could have very well filed an interlocutory application in the pending suitO.S.509/85 and sought for necessary relief. But he has not chosen to do so. In my considered opinion, thesecond suit, namely, O.S.337 of 1988, strictly speaking, was not at all maintainable and it was against thewholesome public policy that there should not be any multiplicity of proceedings. The relief of injunctionobtained in O.S.No.337 of 1988 in stricto senso, is interim in nature as pending adjudication in O.S.No.509 of1985 only it could be operative and the ultimate decision in the partition suit would have direct legal impacton the said injunction. It is therefore crystal clear that a virtual interim injunction cannot be put forth as oneconstituting as resjudicata as against the proceedings in the connected partition suit.

14. The learned counsel for the plaintiff would contend that there need not be any specific issue framed andeven then the said decision would operate as res-judicata.



15. I am at a loss to understand as to how the decision in an injunction suit, where the title to the suit propertycannot be gone into in the judgement to be rendered relating to it, could be treated as resjudicata as against theperson, who seeks remedy in a different proceedings based on title. The substantial issue is as to whether thesuit properties are joint family properties or not and whether there was already any oral partition or not andthese issues are found framed in the partition suit O.S.No.509 of 1985 and relating to that suit, an d foradjudication of those issues alone, now the present appeal is pending. In such a case, by no stretch ofimagination, it could be taken that the dismissal of the said appeal by the District Judge could be taken as oneoperating as res-judicata as against the appellants in this appeal.

16. The learned counsel for the plaintiff also relied on the decision of the Honourable Apex Court reported inAIR 1966 SCC 1332-SHEODAN SINGH, V. DARYAO KUNWAR, excerpts from it would run thus:-

(10a). Re.(i): The judgment of the Additional Civil Judge shows that there were five issues common to all thefour suits, and the main point raised in these common issues was whether Harnam Singh and his adopted sonRam Kishan were joint with the appellant and his father and whether Ram Kishan died in a state of jointnesswith them. This main question was decided against the appellant and his father and it was held by theAdditional Civil Judge that Harnam Singh and Ram Kishan were separate from the appellant and his fatherand that Ram Kishan did not die in a state of jointness with them. On this view of the matter, the AdditionalCivil Judge held that the respondent, Smt Daryao Kunwar, succeeded to Ram Kishan on his death and wasentitled to the separated share of Ram Kishan and the appellant and his father had no right to the property bysurvivorship. In the face of the judgment of the Additional Civil Judge which shows that there were fivecommon issues in all the four suits, the appellant cannot be heard to say that these issues were not directly andsubstantially in issue in Suits Nos. 77 and 91 also. Further this contention was not raised in the High Courtand the appellant cannot be permitted to raise it for the first time in this Court. Besides the question whetherthese common issues were directly and substantially in issue in Suits Nos. 77 and 91 can only be decided aftera perusal of the pleadings of the parties. In the paper book as originally printed, the appellant did not includethe pleadings. Later he filed copies of the plaints an application. Even now we have not got copies of thewritten statements and replications, if any of Suits Nos. 77 and 91. In the circumstances we must accept fromthe fact that the judgment of the Additional Civil Judge shows that these five issues were raised in Suits Nos.77 and 91, that they were directly and substantially in issue in those suits also and did arise out of thepleadings of the parties. We therefore reject the contention that issues as to title were not directly andsubstantially in issue in Suits Nos. 77 and 91.

12. Then it is urged that all the four suits were consolidated and decided on the same day by the samejudgment and there can therefore be no question that Suits Nos. 77 and 91 were former suits and thus thedecision as to title in those suits became res judicata. It is not in dispute that the High Courts decision in theappeals arising from Suits Nos. 77 and 91 was earlier. Reliance in this connection is placed on the decision ofthis Court in Nahari v. Shankar. That case however has no application to the facts of the present case, becausethere the suit was only one which was followed by two appeals. The appeals were heard together and disposedof by the same judgment though separate decrees were prepared. An appeal was taken against one of thedecrees. In those circumstances this Court held that as there was only one suit, it was not necessary to file twoseparate appeals and the fact that one of the appeals was time-barred did not affect the maintainability of theother appeal and the question of res judicata did not at all arise. In the present case there were different suitsfrom which different appeals had to be filed. The High Courts decision in the two appeals arising from SuitsNos. 77 and 91 was undoubtedly earlier and therefore the condition that there should have been a decision in aformer suit to give rise to res judicata in a subsequent suit was satisfied in the present case. The contentionthat there was no former suit in the present case must therefore fail.

13. Re.(iv): This brings us to the main point that has been urged in these appeals, namely, that the High Courthad not heard and finally decided the appeals arising out of Suits Nos. 77 and 91. One of the appeals wasdismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissedon the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the



two appeals arising out of Suits Nos. 77 and 91 had not been heard and finally decided by the High Court, andso the condition that the former suit must have been heard and finally decided was not satisfied in the presentcase. Reliance in this connection is placed on the well-settled principle that in order that a matter may be saidto have been heard and finally decided, the decision in the former suit must have been on the merits. Where,for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default ofplaintiffs appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness,or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on thepart of the plaintiff to produce probate or letters of administration or succession certificate when the same isrequired by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the groundof improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for wantof cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), thedecision not being on the merits would not be res judicata in a subsequent suit. But none of theseconsiderations apply in the present case, for the Additional Civil Judge decided all the four suits on the meritsand decided the issue as to title on merits against the appellant and his father. It is true that the High Courtdismissed the appeals arising out of Suits Nos. 77 and 91 either on the ground that it was barred by limitationor on the ground that steps had not been taken for printing the records. Even so the fact remains that the resultof the dismissal of the two appeals arising from Suits Nos. 77 and 91 by the High Court on these grounds wasthat the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed bythe order of the High Court. In such a case, even though the order of the High Court may itself not be on themerits, the result of the High Courts decision is to confirm the decision on the issue of title which had beengiven on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree ofthe trial court on the merits, whatever may be the reason for the dismissal of the appeals arising from SuitsNos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, thedecision of the High Court dismissing the appeals arising out of Suits Nos. 77 and 91 was to uphold thedecision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arisingout of Suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgmentof the trial court on the issue of title arising between the parties and the decision of the trial court being on themerits the High Courts decision confirming that decision must also be deemed to be on the merits. To holdotherwise would make res judicata impossible in cases where the trial court decides the matter on merits butthe appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trialcourt on the merits. It is well settled that where a decree on the merits is appealed from, the decision of thetrial court loses its character of finality and what was once res judicata again becomes res sub-judice and it isthe decree of the appeal court which will then be res judicata. But if the contention of the appellant were to beaccepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitationor default in printing, thus confirming toto the trial courts decision given on merits, the appeal courts decreecannot be res judicata, the result would be that even though the decision of the trial court given on the meritsis confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannottherefore accept the contention that even though the trial court may have decided the matter on the meritsthere can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without goinginto the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of thedecision of the trial court given on the merits. Acceptance of such a proposition will mean that all that thelosing party has to do to destroy the effect of a decision given by the trial court on the merits is to file anappeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given onthe merits also becomes useless as between the parties. We are therefore of opinion that where a decision isgiven on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on somepreliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirmsthe decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on themerits whatever may be the ground for dismissal of the appeal."

17. A mere perusal of the above said excerpt, including the entire judgement would at once make the pointexplicitly clear that the cited decision is not applicable to the facts and circumstances of this case. It isapparent in the cited precedent that as many as 5 issues were framed common to all the four suits involved in



that matter and the main issue raised was whether Harnam Singh and his adopted son Ram Kishan were jointwith the appellant and his father and whether Ram Kishan died in a state of jointness with them.

18. As such, in that factual matrix, the Honourable Apex Court, for reasons as found set out in the above saidexcerpts, held that the plea of res-judicata was applicable. But here my above discussion supra would clearlyindicate that the said injunction suit itself was an off shoot litigation, which ought not to have been institutedand the trial Court also has not framed any issues relating to the joint nature of the suit property and also aboutthe alleged oral partition. In fact, the parties are not the same in both the suits and it is quite obvious,warranting no further elaboration.

19. The learned counsel also cited the following decisions relating to the plea of res-judicata:

AIR 1973 ALLAHABAD 63 BUDHAN V. LALA HARBANS LAL AND OTHERS;

AIR 1977 SUPRE COURT 1268 NARAYANA PRABHU VENKATESWARA PRABHU V. NARAYANAPRABHUH KRISHNA PRABHU (DEAD) BY L.RS.;

AIR 1962 SUPREME COURT 338 BADRI NARAYA SINGH VS. KAMDEO PRASAD SINGH ANDANOTHER;

AIR 1976 SUPREME COUT 1645 LONANKUTTY V. THOMAN AND ANOTHER;

AIR 1937 MADRAS 544 KRISHNAN NAIR V. KAMBI;

AIR 1966 SUPREME COURT 153 PANDURANG DHONDI CHOUGULE AND OTHERS V. MARUTIHARI JADHAV AND OTHERS;

2001(1) CTC 222 RENGANAYAKI AND ANOTHER VS. K.R.RENGANATHA MUDALIAR;

AIR 1990 NOC 163(ANDHRA PRADESH)- PALA NARAYANAN AND ANOTHER VS. M.VEERASAMAIAH.

20. In view of the ratiocination adhered to by me, in not upholding the plea of res-judicata, the aforesaidprecedents also are found to be not relevant to this case. Accordingly, this point No.(i) is decided to the effectthat the judgement dated 31.12.1986, passed in A.S.No.154/94, would not operate as res-judicata as againstthe appellant herein from arguing this appeal on merits.

21. Point No.(ii) Indubitably and unassailably by items 1 to 4 of the suit properties, which are agriculturallands and an extent of 20 cents of plot area in Survey No.225/1, as described in the same schedule of propertyand the three houses referred to therein, are the joint family properties. Even though the suit property, asfound described in the schedule of the plaint is not so clear, nevertheless the learned counsel for the plaintiffwould clarify the factual position by portraying and detailing that the suit properties could be taken underthree segments as found set out in the plaint; the first segment would comprise of six items of agriculturalproperties, totally measuring an extent of 10 acres and 8 cents; the second segment is the 20 cents of land inSurvey No.225/1; and the third segment would refer to the three houses. The items 5 and 6 of the agriculturalproperties referred to supra are claimed to have been acquired by Arumugha Chettiar (D1) and ChidambaramChettiar (D2) as per Ex.B7-the sale deed dated 21.6.1968.

22. The learned counsel for the plaintiff would contend that those two items of properties covered underEx.A7 are also the joint family properties, as there had been no partition at all much less any oral partition, asclaimed by the defendants; the said items 5 & 6 were purchased in the name of D1 and D2 from out of theincome derived from the joint family nucleus, to wit from out of the income derived from items 1, 2, 3 and 4



of the agricultural lands referred to supra; and those items were admittedly in possession and enjoyment of thedefendants and their father Periyapalaniappa Chetty. Accordingly, the learned counsel for the plaintiff wouldpray for partition.

23. The learned Senior counsel for the defendants would advance his argument to the effect that the saidPeriyapalaniappa Chettiar died only on 16.4.1975. Even during his life time, there was only a familyarrangement/understanding for convenient enjoyment of the property and accordingly, the plaintiff was inpossession of tbhe Survey No.344/1 measuring an extent of 3 acres and 2 cents, which is not one among thesuit properties herein, but it was subsequently acquired by the Government and the compensation ofRs.17,365/- paid to the R1/plaintiff herein, being the eldest son of Periyapalaniappa Chetty, being the karthaof the family, after the death of the said Periyapalaniappa Chetty. Even though the said sum of money was notreferred to in the schedule of the plaint for being partitioned, nonetheless the first respondent/plaintiff is readyto distribute the shares of the other co-sharers and such receipt of compensation by the first plaintiff ipso factowould not lead to any presumption of any oral partition. Ex.A8, the partition deed, according to him, whichemerged between D1 and D2 during the pendency of the suit would torpedo the plea of oral partition andaccordingly he prayed for the dismissal of the appeal.

24. The contention of the learned Senior counsel for the defendants would be to the effect that even as early asin the year 1963 there was an oral partition among Periyapalaniappa Chetty and his descendants and as perwhich, the divided sharers started enjoying their respective share; the first plaintiff also acquired two housesand similarly defendants 1 and 2 also acquired items 5 & 6 of the agricultural suit properties; patta alsocorrespondingly got changed in the name of the respective sharers incommensurate with and in concinnitywith the shares allotted at the oral partition and that the said oral partition became a fait accompli.

25. The learned Senior counsel for defendants 1 and 2, au courant with facts and laws alternatively would putforth the point that in the event of this Court not countenancing and upholding the plea of the defendants thatthere had been oral partition, then this Court might order for partition, in respect of the two houses alsopurchased by the first plaintiff in his name from out of the joint income derived from the joint family nucleusand also the compensation amount, which admittedly, the first plaintiff received from the Government.

26. In this factual matrix, it is just and necessary, at the first instance, to scrutinise the evidence as to whetherthe oral partition as alleged by the defendants, in fact had taken place at all.

27. The learned counsel for the plaintiff placing reliance on Ex.A8-the partition deed, dated 2.9.1989, whichemerged during the pendency of the suit, would advance his argument that the very recitals in that documentwould torpedo the plea of oral partition as put forth by the defendants.

28. A bare perusal of Ex.A8 would unequivocally highlight and spotlight the fact that the said document isfraught with unreal facts, which are quite antithetical to what the defendants themselves had contended earlierin their written statement. There is no reference in Ex.A8, about the oral partition, which allegedly had takenplace during the year 1963. Had really an oral partition taken place, certainly there would have been somereference to it in Ex.A8. The recitals in Ex.A8 would proceed on the footing as though PeriyapalaniappaChetty was having ancestral properties, and consequent upon his death, those properties devolved upondefendants 1 and 2 and that they wanted to partition such properties in the presence of Panchayatdars. Thelearned counsel for the plaintiff would correctly and convincingly strike the nail on the head of it by arguingspotlight and highlight that the recitals in Ex.A8-Partition Deed dated 2.9.1989 would ignore the veryexistence of the plaintiffs as well as the daughters of the said Periyapalaniappa Chetty.

29. On the contrary, unconvincingly and dubiously from the defendants' side, the explanation, which wasforthcoming relating to Ex.A8-the Partition Deed dated 2.9.1989, was to the effect that only for the purpose ofavailing loan such a document was brought about by the defendants. Whereas, the learned counsel for theplaintiff would correctly torpedo such explanation by pointing out that a perusal of Ex.B15-the copy of plaint



filed in O.S.No.3701 of 1991, would reveal that the bank filed the suit as against the defendants for recoveryof dues long prior to the emergence of Ex.A8 and that there is no iota or shred of evidence to exemplify thatbased on Ex.A8 any loan was availed by the defendants.

30. The whole kit and caboodle of evidence on record would in no way highlight that Ex.A8 was broughtabout by the defendants purely for the purpose of obtaining loan. If really any oral partition had taken placeduring the year 1963, it is not known as to why during the year 1968, as per Ex.A7-the Sale Deed dated21.6.1968, both D1 and D2 should have purchased items 5 & 6 in their joint names and the very Ex.A7-SaleDeed dated 21.6.1968 itself is indicative of the fact that there was no actual division among the co-sharers.

31. The learned counsel for the plaintiff drawing the attention of this Court to Ex.B1 to Ex.B14, wouldadvance his argument that none of those documents issued by the Revenue officials would enure to the benefitof the defendants to canvass their plea of oral partition.

32. Ex.B1 is the patta book dated nil relating to 4th item of the suit property, which stands in the name of D1and one other 3rd party and in that document it is found specified that the property is an ancestral property.Ex.B2 patta book dated 1.7.1974 stands in the name of D1 and D2 relating to items 5 & 6, which havepurchased as per Ex.A7, and in that document it is found mentioned that it is an ancestral property.

33. The learned counsel for the plaintiff would develop his argument to the effect that even as per Ex.B2, thesuit items 5 & 6 are stated to be the joint family property of Periyapalaniappa Chetty and not the separateself-acquired properties of D1 and D2. Ex.B4-the patta book dated 6.10.1986 stands in the name of the firstplaintiff and D1 and D2 and various other persons, relating to the said second segment of the property inSurvey No.225/1. However, Ex.B4 is relating to a vast extent of land and not only relating to the 20 cents ofland, as contemplated under the second segment. As such, the learned counsel for the plaintiff would develophis argument that had there been an oral partition in the year 1963, then the first plaintiff's name would nothave found a place there. Ex.B5 patta dated 5.10.1986 is relating to items 1, 2, 3 of the agricultural properties,which stands in the name of the sons of Periyapalaniappa Chetty and there is no indication that there was anydivision of status among them. Ex.B6 dated 6.10.1986 is the chitta relating to items 4 & 5 of the suitproperties. This stands in the name of D2.

34. The learned counsel for the plaintiff would raise a valid contention that item No.4 was sold in favour ofD5-Muthusamy Chettiar, but Ex.B6-Chitta-dated 10.3.1985 does not reflect the same. Ex.B8 and Ex.B9- theSurvey notices dated 6.8.1976 are in the name of D1 and D2 respectively, which are relied on by thedefendants to advance the plea that there had been oral partition and thereupon alone those survey noticeswere sent to D1 and D2 relating to item No.4. But the learned counsel for the plaintiff would deny theirgenuineness and submit that those are only mere Survey notices and nothing more and that cannot also betaken as evidence of the alleged oral partition, which was claimed to have emerged during the year 1963.

35. Ex.B12 dated 31.3.1983 and Ex.B13 dated 19.2.1985 are the house tax receipts in the name of thedeceased Periyapalaniappa Chettiar, and that would indicate that there was no mutation in the house taxregister relating to the house properties, which were also claimed to have been partitioned as per thedefendants.

36. As such, the learned counsel for the plaintiff has correctly highlighted that those Exhibits referred to supramarked on the side of the defendants would not enable the Court to arrive at a reasonable conclusion that therewas oral partition during the year 1963. He would also convincingly argue that had really there been an oralpartition in the year 1963, then the defendants must be able to produce patta or Revenue records or taxreceipts anterior to 1974 to that effect, but apparently, between 1963 and 1974 not even any modicum orexiguous extent of evidence has been produced to prove the said oral partition.



37. The learned counsel for the plaintiff would be right in his argument that the plaint is as silent as silencecould be relating to the details about the oral partition. Normally, if an oral partition had taken place, theparty, who relies on such oral partition, must be able to expatiate as on what date, before whom and at whichplace, it had taken place. But there is no such indication at all in the written statement. Even in the reply noticeEx.A13 dated 22.6.1985, which emerged in response to Ex.A12 dated 23.5.1985- the lawyer's notice sent bythe plaintiff to D1 and D2, there are no details about the oral partition. On the contrary for the first time, onthe defendants' side, DW.1 Chinnappan, (Claiming to be D2, but in the plaint D2 is referred as Chidambaram)would depose as though the partition was effected in the presence of elders namely, Avinasi Chetty,Chinnapalaniappa chetty, Vanji(D.W.2). No date has been specified. None of those Panchayatdars and eldershave been examined to speak about such oral partition. In consonance with the deposition of D.W.1, D.W.2(D4) also spoke about the oral partition unconvincingly. The depositions of D.W.1 and D.W.2 the parties tothe proceedings are turned out to be nothing but their ipse dixit and it is not preceded by averments in thewritten statement. It is a trite proposition of law that any amount of evidence, without pleadings, should beeschewed. In this connection, the following decisions of the Full Bench of this Court reported in 2006 (4)L.W.409-B.SURESH CHAND VS. 1.STATE OF TAMIL NADU, REP.BY THE SECRETARY REVENUEDEPARTMENT, FORT ST.GEORGE, MADRAS-9, 2.THE DEPUTY COMMERCIAL TAX OFFICER,THIRUPATTUR, NORTH ARCOT DISTRICT has been cited by the learned counsel for the plaintiff. In thesaid decision, various decisions of the Honourable Apex Court have been adverted to and certain excerptsfrom it would run thus: "28. In this context it will be useful to refer to Order 6 Rule 2 of C.P.C., which readsas follows:

"Order 6 Rule 2: Pleading to state material facts and not evidence.- (1) Every pleading shall contain, andcontain only, a statement in a concise form of the material facts on which thek party pleading relies for hisclaim or defence as the case may be, but not the evidence by which they are to be proved."

29.A reading of the above provisions show that the party must plead all material facts on which he means torely at the trial. If any one of the material fact is omitted, the statement of claim is bad and it would mean nopleading and no cause of auction for the suit. If material facts are not pleaded, a court cannot permit evidenceto be led. In 1977 (1) S.C.C.511 (Udhav Singh vs. Madhav Rao Scindia) the Supreme Court has defined theexpression "material facts' in the following words:- "All the primary facts which must be proved at the trial bya party to establish the existence of a cause of auction or his defence are material facts".

30. The distinction between "material facts' and "particulars" cannot be overlooked. Material facts are primaryand basic facts which must be pleaded by the party in support of the case set up by him, either to establish hiscause of auction or defence. Since the object and purpose is to enable the opposite party to know the case hehas to meet, in absence of pleading a party cannot be allowed to lead evidence. Failure to state even a singlematerial fact, hence, will entail dismissal of the suit. Particulars, on the other hand, are the details of the case.They amplify, refine and embellish material facts. They give the finishing touch to the basic contours of apicture already drawn so as to make it full, more clear and more informative."

38. It is therefore clear that the Full Bench of this Court, adverting to the Honourable Apex Court'sjudgements, categorically set out that if material particulars are missing in the pleadings, then oral evidencecannot be entertained. It is also worthy and significant to note that even before the institution of the suit, in thereply notice the defendants have chosen to come forward with the plea of oral partition and the plaintiff in theplaint contended that such plea of oral partition was false and despite that in the written statement there foundno details set out. The learned counsel for the defendants placing reliance on the deposition ofP.W.1(P1-Balasubramanian) during his cross-examination, has advanced his argument that P.W.1 candidlyand categorically admitted that there had been an oral partition. No doubt the perusal of the deposition wouldevince that there is one sentence found in the cross-examination as under:- ". . .. . . . . . . jdpg;gl;l ghfk; gphpj;jgpwF th';fpajpy; mJ jdpg;gl;l brhj;J / / / / / / @



39. Per contra, the learned counsel for the plaintiff would submit that no such admission was made by P.W.1,conveying such a meaning as though there had been an oral partition.

40. At this juncture, I would like to point out that a deposition has to be read as a whole. The tenor of thedeposition is the sure test. When doubt arises as to whether a party unwittingly gave any answer to a question,in my considered opinion placing reliance on a stray answer to a question during cross-examination anddeciding a serious matter involving a serious issue relating to the existence or otherwise of the oral partition,would lead to travesty of justice. The duty of the Court in such circumstances under Section 165 of the IndianEvidence Act is to ascertain from the witnesses as to his own contradictory versions in his deposition.

41. Here it is the consistent contention of P.W.1 even in his pre-suit notice as well as in the plaint and also inhis deposition during Chief-examination and in cross-examination that there had been no oral partition and insuch a case, placing reliance on a fragment of a sentence during cross-examination of P.W.1 cannot be treatedas the decisive factor to decide the lis. It is also not readily known as to whether it was recorded properly. I amfully aware of the fact that the appellate Court cannot look askance at the deposition recorded by the lowerCourt. But if the circumstances warrant so, the appellate Court should not hesitate to doubt such recording ofthe deposition. Hence, I would like to extract the portion before and after the doubtful sentence including thedisputed portions, as under:- "1963 nyna v';fs; ghfk; th';fpf; bfhz;L jdpf;Foj;jdk; nghndd; vd;why; rhpay;y/FoapUf;Fk; tPL v';fs; nghpy; th';fpaJ/ tptrha tUkhdk; jtpu ntW tUkhdk; Vjkpy;iy/ FoapUf;Fk; tPL jhthtpy;fhl;ltpy;iy/ mJ jdpf;Foj;jdk; nghdt[ld; th';fpaJ/ 2 fpiuaj;jpw;F th';fpaJ/ tPl;Lthp v';fs; nghpy; eh';fs; fl;otUfpnwhk;/ ,J bghJf; FLk;gk; brhj;J my;y/ jdpg;gl;l brhj;J/ ghujpahh; (,jd; mrypd; 7 k; gf;f Kot[)/ Universityf;F xU g{kp fpiuak; S.No.344, 3.32 br 3/30 vd;why; rhpay;y/ mJ 1963 k; tUlk; Vw;gl;l ghfj;jpy; tpl;lJ vd;why;rhpay;y/ / / / / / / //@

42. A mere perusal of the aforesaid extract at once support the view taken by me that such stray portion of thesentence in the middle of the cross-examination cannot be taken as admission by P.W.1 about the alleged oralpartition.

43. The learned counsel for the plaintiff would also correctly advance his argument that mere separate messand separate physical living from other coparceners, would not constitute division in coparcenary statusrelating to coparcenary properties. In support of his contention, he would place reliance on the decision of thisCourt reported in AIR 1987 Madras 24- P.KALIAPPA GOUNDER AND ANOTHER V. MUTHUSWAMIMUDALIAR, certain excerpts from it would run thus:- "8.Partition is the intentional severance of the jointownership by an unequivocal expression of an intention to bring out severance in the eye of law and furtherimplementing it by actual division by metes and bounds. What was held in common as a single property getsconverted into a holding in severalty and in specie. Joint ownership turns into ownership in severalty and inspecie. It is true that 'partition' is not a transfer. But there must be the element of conversion as the jointownership into ownership in severalty and in specie. Therefore, the essence of partition is that the jointownership is put an end to and the joint owners come to hold the property in severalty and each in his ownindividual right. In this country, it is common that not only coparceners of a joint Hindu family but alsoindividuals join or continue together to own property in common. If this common ownership is to be put anend to not only in theory but also in practice, there must be primarily severance of the joint ownership in theeye of law, followed up by actual physical division. We make it clear that in the present case, we are notconcerned with the concept of a bare unequivocal expression of an intention to separate to bring aboutdivision in status in a joint Hindu family. It is not unusual for parties holding properties jointly or in commonto have separate enjoyment of portions for the sake of sheer convenience. But such separate enjoyment ofconvenience cannot be equated to partition in the eye of law and in fact, so as to say that the joint ownershiphas been put an end to and in its place ownership in severalty or in specie has come into existence. Separateenjoyment for the sake of convenience is one thing and partition in the eye of law is another. The latter carriedwith it the legal incidents of mutating the joint ownership. The latter has to pass through and satisfy a morerigorous test in law and on facts.



9. Keeping in mind the above principle, when we examine the present case, we are not able to subscribe oursupport to the case of the defendants that there was in fact a partition or a division of the common propertiesas between the parties in the eye of law. The features which Mr.T.S.Subramanian, learned counsel for thedefendants, brings to our notice are not adequate in law to support the theory of 'partition'. Learned counselwould state that the parties are admittedly in possession of different portions; the plaintiff in possession of thesouthern portion and the defendants in possession of the northern portion. Learned counsel further states thatthe defendants have deepened the well in their portion and have put up a motor pump set and there is also anunderground pipe line in their portion, which exclusively serves the requirements of the defendants and this isthe finding of fact rendered by the Court below. Learned counsel would also urge that on the basis ofcertificate of ownership, the parties, both the plaintiff and the defendants, have obtained loans for the purposeof deepening the wells in the portions in their enjoyment. In our view, these features are not unusual even inthe case of common ownership in the eye of law along with separate enjoyment of specified portions for thesake of convenience. They could be in consonance with the admitted enjoyment of separate portions by theparties, explained by the plaintiff as one for the sake of convenience. We could not spell out that the jointownership as such was put an end to and in its place the ownership in severalty and in specie came intoexistence. The title of the defendants to the undivided share in the suit properties is derived under severaldeeds of sale. In all these documents what the defendants acquired is described as only an undivided share. Ifin fact, there was a division and consequently a separate ownership long prior to these alienations, as claimedby the defendants, the parties would not have omitted to make a specific reference to the same. Such a recitalwhich is not only a natural one but also an absolutely necessary one, is conspicuously absent in all the titledeeds under which the defendants claim right to the suit properties. Admittedly, there was no mutation and noseparate payment of kist. None of the documents relied on by the defendants reflects or speaks about divisionat all."

44. As such, the cited decision is in support of the contention of the plaintiff that there was no oral partitionand my above discussion relating to the documents and evidence relied on by the defendants would alsoevince that the parties, for the sake of convenience, have been enjoying different portions of the joint familyproperties and by that alone the Court cannot jump to the conclusion that there had been oral partition.

45. The learned counsel for the plaintiff also would cite the decision of the Division Bench of the AndhraPradesh reported in 1982 ANDHRA PRADESH 270- PURNA BAI AND OTHERS V. RANCHHODDASAND OTHERS, certain excerpts from it would run thus:

"26. It is next contended by Mr.H.S.Gururaja Rao that Ex.B-14 is a letter written by Gopinath on 6.6.66stating therein that he had distributed the amounts as stated in the Will. In that it is shown that Dwaraka Daswas paid Rs.15,000/-. Gopinath is not examined to prove this payment or Ex.B-14. Except D.W.1, no one elseis examined to prove Ex.B-14. In the cross-examination of P.W.2 it is suggested that Dwaraka Das was paidRs.25,000/- in pursuance of the Will. The suggestion, thus, is not in accordance with the contents of Ex.B-14.Ex.B-14 is dated 6.6.66 i.e., after the death of Dwaraka Das. Further, Ex.B-14 was not put to P.W.1 or P.W.2during their cross-examination. Therefore, there is any amount of doubt as regards the contents of thisEx.B-14. Further, it is to be noted that it is in the evidence of P.Ws.1 and 2 that D-1 used to pay themRs.1,500/- per month for their maintenance after the death of Dwaraka Das. There were also occasions whenD-2 and D-6 paid to the plaintiffs. They stopped payment only some time earlier to the filing of the suit. Asheld supra, the evidence of D.W.1 is not trustworthy as regards the fact that there was a partition or settlementin 1942 or 1957. It is very difficult to believe his evidence even in respect of this aspect of the case also. Nodoubt, he denied having made payments at the rate of Rs.1,500/- to the plaintiffs. But having regard to thecircumstances and other evidence adduced, it seems to be true as deposed to by P.Ws.1 and 2 that they werebeing paid by the defendants at the rate of Rs.1,500/- per month for their maintenance. This fact, further,supports the case of the plaintiffs that the family was a joint family and the properties were joint. For all thesereasons we hold that there was no division or settlement of the family properties as alleged by the defendantsand that the family continues to be joint. It is a fact that P.Ws.1 and 2, both, deposed that the families of theplaintiffs and D-1, D-6 and other defendants are living separately since 20 to 25 years. Merely because the



families are living separately the nature of the joint family property will not be changed unless there ispartition, division or settlement. Therefore, the properties continue to be joint family properties only.

27. The third point to be considered is, whether the suit is barred by limitation. In the plaint it is alleged thatthe plaint schedule properties are joint family properties and when the plaintiff demanded for partition thedefendants refused it. The plaintiffs served the suit notice, Ex.A-15 dated 14.1.1976 and the defendants issueda reply, Ex.A-16 denying that the properties are joint family properties. Therefore the suit was filed. In thewritten statement filed by D-1, D-2, D-3, D-5 and D-10 in paragraph 6 it is stated that the business was carriedon independently even long before 1943, late Dwarakadas at Secunderabad and D-1, Motilal, at GulzaraHouse as partners of the shop. Thus, according to the written statement the business was so carried onindependently by the sons even during the lifetime of Purandas. In view of this, it is pleaded, the suit forpartition is wholly untenable and time barred. Except this allegation that the suit is time-barred, there is nospecific plea in the written statement that Dwaraka Das was excluded from enjoyment of the joint familyproperties to the knowledge of Dwaraka Das and his sons. Since there is no plea of exclusion, there is also noissue and consequently no evidence or finding. It is a settle principle of law that when there is no plea, therewill be no issue and therefore there cannot be any finding. What amounts to exclusion is a question dependingupon the particular facts of each case. The exclusion must be to the knowledge of the person excluded andthere should be sufficient (material) to prove the said exclusion. Merely because the members of the jointfamily are living separately with the consent of each other and managing the joint business, it cannot be saidthat there is exclusion. For this proposition of law, it is relevant to refer to the decision of the Privy Council inRadhoba v. Aburao, AIR 1929 PC 231. The Privy Council held: "There is no definition of the word"exclusion", in the Limitation Act and the question whether a person has been excluded from joint familymust depend upon the facts of the particular case. An intention to exclude is an essential element. It isnecessary, therefore, for the Court to be satisfied that there was an intention on the part of those in control andpossession of the joint family property to exclude the person and that exclusion was to his knowledge." In sofar as the question of limitation is concerned, it is raised for the first time in this appeal. Since it is not raisedbefore the trial Court, the learned counsel for the plaintiffs contended that in view of the decision of the PrivyCouncil in Virayya v. Adenna, AIR 1930 PC 18, the same cannot be entertained in this appeal. The PrivyCouncil laid down that although the plea of limitation may have been mentioned in the written statement andalso in the grounds of appeal, if no issue is directed to bear upon the question before the trial Judge and thepoint has not been taken at the Bar during the trial, it cannot be allowed in appeal. The learned counsel furthersubmitted that the question of limitation is a mixed one of law and fact and that unless there is an issue andevidence, the same cannot be considered in appeal. In the present case, though there was a plea in the writtenstatement no issue is framed and no evidence was let in and no finding is given by the trial Court. On the otherhand, the learned counsel Sri H.S.Gururaja Rao, contended that the plea of limitation is a pure question of lawand therefore even though it is not raised before the trial Court it can be raised at the appellate stage. For thisproposition of law, the learned counsel sought to place reliance upon a decision of the Federal Court inRatneshwari Nandan v. Bhagwati Saran, AIR 1950 FC 142 and also of this High Court in Sambhasiva Rao v.Kanakamma, AIR 1960 Andhra Pradesh 213. He further contained that the documentary evidence i.e., thepartnership deeds between the defendants and their sons, the income-tax assessment orders and the certificatesissued by the Income-tax Authorities show that since 1959 onwards the defendants are doing businessexclusively and therefore the suit filed in the year 1976 is barred by limitation as per Art.110 of the LimitationAct. First of all, there was no issue, evidence or finding on this point. We have also held that once there is ajoint family and the properties are joint family properties managed by some members of the joint family, thesaid properties will not seize to be joint family properties merely because the other members have notmanaged the said properties, unless it is proved that the other members to their knowledge have been excludedfrom the joint family. As held by us, the properties are still joint family properties as the alleged settlement orpartition pleaded was held to be false. The evidence of D.W.1 on this point was held to be not believable. Thecase of the plaintiffs is that though the two shops are there one at Gulzara House and the other inSecunderabad managed by the defendants and Dwaraka Das, the entire profits were enjoyed by all themembers jointly and this is even spoken to by D.W.1 in the cross-examination that earlier to the division theywere all enjoying the fruits jointly. We have held that there is no settlement either in 1942 or 1957. Therefore,



the joint family properties continues to be joint. Even the evidence of P.Ws.1 and 2 is that the defendants usedto pay Rs.1,500/- per month for their maintenance from the income of Gulzara House Shop. All these factsshow that there was no exclusion of Dwaraka Das from enjoyment of the joint family properties. Evenotherwise once the property is the joint family property, unless there is exclusion of one member to hisknowledge from the joint family for over a period of twelve years, it cannot be said that the said member hasceased to have any right in the joint family properties. Mr.Mohan Rao, the learned counsel for the 4threspondent submitting that P.W.1 herself hash in evidence deposed that they were living separately since 30years, that the house in which she is living is in her name having been purchased some 30 to 35 years back,that Motilal has got a separate business in a separate shop, that since 1957 the business was carried on inpartnership, while P.W.2 also admitted that himself, the 2nd plaintiff as well their mother was carrying onbusiness in the shop at Sultan Bazar in a partnership till the end of 1972, sought to contend that theseadmissions and portions in their evidence indicate that they were not only living separately since more thantwo decades but the businesses were run on partnership basis to the exclusion of others and, therefore, the suitbrought in after twelve long years is barred by limitation. All these contentions have been in fact adverted toearlier and held that simple separate living is no indication to conclude either exclusion or division and thatthe plaintiffs were even paid at the rate of Rs.1,500/- per month for their maintenance from out of the earningsof the shop at Gulzara House by the defendants. Further at the time of death of Dwaraka Das, the 3rd plaintiffwas a minor in 1966 and he attained majority only thereafter. As held by the Madras High Court inMarudanayagam v. Sola Pillai, AIR 1965 Mad 200, a suit filed by the minor after attained majority withintwelve years thereof (i.e. From the date of attaining majority) is within the period of limitation. For all thesereasons we hold that the suit is not barred by limitation and that there is no exclusion of the plaintiffs also ascontended."

46. The said decision would highlight the law point that merely because coparceners live separately, there isno presumption that there was division of status relating to coparcenary properties. There is also one anotherdictum found set out in the said precedent that simply because some members managed some properties therecould be any presumption that there had been division in status.

47. The learned Senior counsel for the defendants would draw the attention of this Court to paragraph 7 of theplaint and advance his argument that the very conduct of first plaintiff in receiving the compensation amountrelating to the land acquired by the Government would speak volumes that he admitted the oral partition. Percontra, the learned counsel for the first plaintiff would place reliance on the first plaintiff's stand in his pre-suitnotice itself and submit that the first plaintiff being the kartha of the joint family, after the death of his fatherPeriyapalaniappa Chettiar, received the said compensation amount and that he expressed his desire to sharethat amount with the other co-sharers and that even now the first plaintiff is ready and willing to share thecompensation amount with other co-sharers.

48. No doubt, the first plaintiff could have very well already shared that compensation amount along with theother co-sharers, but he did not do so. The Core question arises as to whether such receipt of compensationamount itself would amount to accepting the oral partition. It is a common or garden principle in Hindu Lawthat in a co-parcenary, after of the death of the father, the eldest male member would be deemed to be thekartha and in such a case, the factum of the first plaintiff qua kartha having received the compensation amountwould not constitute an estoppel against him from contending that there was no oral partition. In fact, inparagraph 7 of the plaint, the first plaintiff himself would admit that he is the kartha of the family after thedeath of Periyapalaniappa Chetty.

49. It is therefore clear that even though certain items of properties were under the enjoyment of some of theco-sharers, it could only be taken that they were enjoying so for convenience sake and not after division ofstatus in the coparcenary family and accordingly, point No.(ii) is decided to the effect that there was no oralpartition among the co-sharers and that they have been enjoying the various items of properties for their ownconvenience.



50. Point No.(iii): In view of the finding above that there had been no oral partition as contended by thedefendants, as a sequale the aforesaid admitted joint family properties should be partitioned among the sharesconcluded.

51. The pertinent question arises as to whether items 5 & 6 of the agricultural lands referred to in the suitproperty, claimed to have been purchased by D1 and D2, as per Ex.A7, and the two houses admittedlypurchased by the first plaintiff, but not shown in the schedule of the plaint, should be treated as joint familyproperties or not?

52. Indubitably,the items 1 to 4 - agricultural properties, as found set out in the schedule of the plaint, havebeen in possession and enjoyment of defendants 1 and 2 as on the date of emergence of Ex.A7-the sale deed,dated 21.6.1968, relating to purchase of the said items 5 and 6. As such it is crystal clear that defendants 1 and2 had income from the joint family nucleus and out of that they purchased those items. The learned Seniorcounsel for the defendants would contend that there is no evidence on record to demonstrate and exemplifythat D1 and D2 purchased those properties only from out of the income derived from the joint family nucleus.At this juncture my mind is redolent with the following decisions:- (i) AIR 1954 SC 379 (Srinivas KrishnaraoKango vs. Narayan Devji Kango and others). An excerpt from it would run thus:

"8. Proof of the existence of a joint family does not lead to the presumption that property held by any memberof the family is joint, and the burden rests upon anyone asserting that any item of property was joint toestablish the fact. But where it is established that the family possessed some joint property which from itsnature and relative value may have formed the nucleus from which the property in question may have beenacquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property wasacquired without the aid of the joint family property.

10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested onhim of establishing that there was adequate nucleus out of which the acquisitions could have been made is oneof fact depending on the nature and the extent of the nucleus. The important thing to consider is the incomewhich the nucleus yields. A building in the occupation of the members of a family and yielding no incomecould not be a nucleus out of which acquisitions could be made, even though it might be of considerablevalue. On the other hand, a running business in which the capital invested is comparatively small mightconceivably produce substantial income, which may well form the foundation of the subsequent acquisitions.These are not abstract questions of law, but questions of fact to be determined on the evidence in the case.Where the finding of the Courts is that the income from the ancestral lands was not sufficient even for themaintenance of the members, and the houses in dispute are substantial, burden is on the plaintiff who allegesthe houses to have been acquired out of joint family funds, to establish it.

Held that if the contention that on proof of the existence of the Watan lands the burden had shifted on to thedefendants to prove that the acquisitions were made without the aid of joint family funds,that burden had beendischarged.

Likewise, it was held that since the ancestral Watan lands are intact, and were available for partition, and thesmall income derived from them must have been utilised for the maintenance of the members of the family,whether it were held that the plaintiff had failed to discharge the burden which lay on him of establishingsufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions weremade without the aid of joint family funds, the result was the same."

53. The aforesaid precedent would unambiguously spot light and make apparent and pellucid the point that inorder to prove that the property is the joint family property, there should be evidence to indicate that there wasjoint family nucleus and income was arising out of it so as to enable the joint family to purchase suchadditional properties and that the burden of proof is on the person, who pleads that even though the propertymight stand in the name of one of the co-sharers, nonetheless, it belongs to the joint family. Undoubtedly, this



case should necessarily be analysed in the light of the dictum set out in the cited decision. (ii) AIR 1960 SC335 (Rukhmabai vs. Lala Laxminarayan and others) and an excerpt from it would run thus:

"5. There is a presumption in Hindu law that a family is joint. There can be a division in status among themembers of a joint Hindu family by refinement of shares which is technically called division in status, or anactual division among them by allotment of specific property to each one of them which is described asdivision by metes and bounds. A member need not receive any share in the joint estate but may renounce hisinterest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status ofthe remaining members vis-a-vis the family property. A division in status can be effected by an unambiguousdeclaration to become divided from the others and that intention can be expressed by any process. Thoughprimafacie a document clearly expressing the intention to divide brings about a division in status, it is open toa party to prove that the said document was a sham or a nominal one not intended to be acted upon but wasconceived and executed for an ulterior purpose. But there is no presumption that any property, whethermovable or immovable, held by a member of a joint Hindu family, is joint family property. The burden liesupon the person who asserts that a particular property is joint family property to establish that fact. But if heproves that there was sufficient joint family nucleus from and out of which the said property could have beenacquired, the burden shifts to the member of the family setting up the claim that it is his personal property toestablish that the said property has been acquired without any assistance from the joint family property."

54. A perusal of the said judgement would highlight that there is no presumption that any property whetherimmovable or movable property held by the member of the joint Hindu family is a joint family property andthe burden is on the person, who pleads that the property is the joint family property, to prove it. The samedecision highlights one other important proposition of Hindu law that there is a presumption under the Hindulaw that the family is a joint one. (iii) MLJ (II) 1976 225 ((Pattusami Padayachi vs. Mullaiammal and others:

"18. The properties purchased by one or other of the members of a co-parcenery or joint family when thefamily is joint cannot as a matter of course be treated as joint family property. The co-parcener whochallenges such title in the member and pleads that they should also be brought to the hotch-pot ought toestablish by cogent and mature evidence that there was enough surplus income which was available in thejoint family and which positively could be the foundation for such annexures made by one or the other of themembers of the joint family. In all cases definite proof is required that the further purchase in the names ofjoint family members ought to have been made and could not have been made otherwise than from the surplusincome of the family. For a greater reason the rule is made strict in the case of properties in the name offemale members. The fact that a female member in a joint family has properties in her own name would notnecessarily lead to the conclusion that the origin of such properties should be traced to the joint family or tothe income from the joint family, inasmuch as the stridhanam property of a female and possession of propertyby her have been recognised from ancient times." (iv) MLJ (1) 1978 56 (Ranganayaki Ammal and others vs.S.R.Srinivasan and others).

(v) AIR 1959 SUPREME COURT 906 - MALLAPPA GIRIMALLAPA BETGERI AND OTHERS VS.R.YELLAPPAGOUDA PATIL AND OTHERS;

(vi) AIR 1954 SC 379 - SHRINIVAS KRISHNARAO KANGO VS. NARAYAN DEVJI KANGO ANDOTHERS.

55. The aforesaid decisions would unambiguously highlight that the burden of proof is on the party, whopleads that the property purchased by one of the co-sharers is the joint family property. It is also pertinent tonote that once it is established that the co-sharer purchased certain properties in his own name at a time whenhe was in receipt of income from the joint family nucleus, then the burden of proof would get shifted on himto prove that he acquired those properties from out of his own earnings. So far this case is concerned, it is theadmitted case of both sides that they all belonged to agricultural family and they derived income only bydoing agricultural operation. In fact, D.W.1(D2) in his deposition candidly and categorically deposed that he



had no other avocation or job except agricultural operation. In such a case, it is crystal clear that items 5 and 6were purchased from out of the income derived from the joint family nucleus. Had really defendants 1 and 2got separate income, other than the income derived only from the joint family nucleus, then they should haveadduced evidence aliunde to prove that they purchased those properties from out of such separate income;however there is no modicum of evidence in that regard. Hence, I am of the considered opinion that items 5and 6 of the agricultural properties, described in the schedule of the plaint, would constitute part and parcel ofthe coparcenary property.

56. The learned Senior counsel for the defendants would submit that the two houses purchased by the firstplaintiff as admitted by him should be treated as co-parcenery property and in fact, he ought to have showedthose items also in the schedule of the plaint along with the three houses, which had already been shown in theplaint schedule as the co-parcenery properties, but he had not done so and consequently, the suit itself is badfor partial partition. The learned counsel for the plaintiff would contend that the evidence on record woulddemonstrate that the first plaintiff purchased two houses from out of the income derived from his wife'sagricultural properties and not from out of the income derived from the joint family nucleus. The fact remainsthat admittedly, the plaintiff, as per his own version, was in possession and enjoyment of an extent of 3 acresand 2 cents in Survey No.344/1 as kartha of the joint family and which was subsequently acquired by theGovernment and compensation was paid to him. Readily it is not known about the description of those twohouses as well as the date of those purchases. Instead of furnishing all the relevant facts pertaining to thepurchase of the of two houses with description, in accordance with Section 106 of the Indian Evidence Act,the first plaintiff, he simply relies upon the written statement filed by the defendants and contends that thosehouses were purchased by the first plaintiff, soon after the alleged oral partition during the year 1962/63. Suchan argument cannot be countenanced and upheld as tenable under the law. The pertinent questions arise thus:What is the stand of first plaintiff? Is there any straight answer to it by him?

Absolutely, there is no clarification or answer to those questions. No doubt, in the written statement inparagraph 7, it is stated thus:

"7. The plaintiff No.1 after taking his share, purchased a separate 2 sets of house property in his name and heis residing in the said house right from the date of purchase immediately after partition. Cleverly he hasomitted to include those items in the suit property. Similarly, these defendants have purchased 2.34 acres ofagricultural land in SF.No.221 and 222/2 as per Sale Deed dated 21.6.1968."

57. The unassailable fact is that the first plaintiff purchased two houses. But he has not adduced preciselyevidence relating to them or furnished particulars about them. But he would develop his contention that thedefendants themselves contended that the two houses were purchased soon after the alleged oral partition. Thelaw and the logic, including the case laws applied as against D1 and D2 so as to treat the said items 5 and 6 ofthe suit properties as part and parcel of the co-parcenary properties shall also be applicable as against the firstplaintiff so as to treat the said two houses purchased by him as the ones acquired by him from out of theincome derived by him from the joint family nucleus.

58. The contention of the first plaintiff is that from out of the income derived from his wife's property, hepurchased those two houses in his name. At this juncture, I would like to recollect the well known propositionthat preponderance of probabilities would govern the adjudication in civil cases. Normally, if an undividedcoparcener wants to purchase a property, he would normally purchase in the name of his wife or his otherclose relatives, so as to keep the property away from the reach of other coparceners. But, in this case, it is thespecific contention of the first plaintiff that from out of the income derived from his wife's property, those twohouses were purchased not in the name of his wife but in his own name.

59. The learned counsel for the first plaintiff would place reliance on the answer given by D.W.1(D2) to theeffect that the first plaintiff's wife was having properties, which were looked after by the first plaintiff. Simplybecause, D.W.1 admitted that the first plaintiff was looking after his wife's property, there is no presumption



that D1 and D2 admitted that the first plaintiff purchased those two houses from out of the income derivedfrom his wife's property. On the side of the plaintiff, apart from the plaintiff, no one was examined. As such,the deposition of P.W.1 remains only his ipse dixit and constitutes his self-serving version, which cannot berelied on to hold that those two houses purchased by him were from out of his wife's income.

60. The plaintiff came forward with the specific case that he, being the eldest male member, after the death ofhis father, because the kartha of the co-parcenery family and it is therefore, as sequela could be understoodthat during the life time of his father Periyapalaniappa Chetty, he was his eldest son and that he acquired thosetwo houses while he was admittedly enjoying the joint family nucleus. In such a case, the presumption asapplied as against D1 and D2 should also be applied as against the first plaintiff and it has to be held thatthose two houses purchased by the first plaintiff should be treated as co-parcenary properties. No moreelaboration is required to hold that those two houses should necessarily be treated as part and parcel of theco-parcenary properties.

61. At this juncture, the learned counsel for the defendants would contend that as of now there are noparticulars about those two houses and that it would be difficult for partition of those houses also and on thatground itself the suit has to be dismissed as one bad for partial partition. Even though, the description anddetails about the two houses are not readily available , nonetheless during the final decree proceedings, theplaintiff is bound to furnish those particulars. It is a trite proposition that at the final decree stage, descriptionand inclusion of properties are possible. But only requirement is that during the preliminary decreeproceedings itself, the controversy concerning title relating to those items should have been settled. Evenitems which have been left out due to over sight could be added during the final decree proceedings.

62. Simply because the plaintiff did not come forward to include the sum of Rs.17,365/-, which he receivedfrom the Government as compensation, in the suit property, and that he, as per his own stand, was exclusiveowner of the two houses and that he did not include them in the suit properties, the suit cannot be held to bebad for partial partition. Merely, because the plaintiff owing to some motive or as per his own stand did notinclude certain items in the suit property, it would not lead to the conclusion that the suit is bad for partialpartition. There are instances where the parties would deliberately leave certain items of properties, withoutany valid reasons for getting it divided at once, but to get them divided at a later date at their own whims andfancies and in such a case, the Court could hold that the suit is bad for partial partition. Even in such cases, theCourts have got the power to direct that the left out items also should be included in the partition, once thereare evidence available on record that those items are co-parcenary properties. In fact, both sides relied onMulla's Hindu Law on this Aspect. I would like to extract a passage from the famous Mulla Hindu Law (19thEdition) "327. PARTIAL PARTITION:

(1) A partition between coparceners may be partial either in respect of the property or in respect of the personsmaking it.

After a partition is affected, if some of the properties are treated as common properties, it cannot be held thatsuch properties continued to be joint properties, since there was a division of title, but such properties werenot actually divided.

(2) Partial as to property.- It is open to the members of a joint family to make a division and severance ofinterest in respect of a part of the joint estate, while retaining their status as a joint family and holding the restas the properties of a joint and undivided family. However, where there is evidence to show that the partiesintended to sever, then the joint family status is put to an end, and with regard to any portion of the propertywhich status is put to an end, and with regard to any portion of the property which remained undivided thepresumption would be that the members of the family would hold it as tenants-in-common, unless and until aspecial agreement to hold as joint tenants is proved. When a partition is admitted or proved, the presumptionis that all the property was divided and a person alleging that family property, in the exclusive possession ofone of the members after the partition, is joint and is liable to be partitioned, has to prove his case."



332. . . . .

. . . . . . .

Whether a suit for partition should comprise all the joint family properties, in other words, whether the suitshould be one for general partition, or whether it can be one for a partial partition only depends upon who theparties to the suit are:

(i) The general rule is that where a suit for partition is brought by a coparcener against the other coparceners,it should embrace the whole family property. This rule is subject to certain qualifications. Thus, where aportion of the property is not available for actual partition, as being in the possession of a mortgagee, or whereit is held jointly by the family with a stranger, a separate suit for partition may be brought in respect of thatportion in the courth of the place where that portion is situated. (ii) The next case is where a coparcener sellshis undivided interest in one of several properties belonging to the coparcenary, and a suit for partition isbrought by the purchaser of such interest against his vendor and the other coparceners. In this case, there is aconflict of decisions as to whether he can sue for partition of that property alone in which he is interested as apurchaser, or whether he should sue for general partition of all the family properties. This subject is dealt within 261(3). (iii) The third case is where a coparcener sells his undivided interest in one of several propertiesbelonging to the coparcenary, and a suit for partition is brought by the other coparceners against thepurchaser. As to the rights of the other coparceners in such a case, see 261(3).

(iv) The last case may be put in the form of an illustratin. A and B are members of a joint family propertyconsists of three houses, X, Y and Z. A sells his interest in house X to C. B sells his interest in the same houseto D. In such a case, D can sue C for partition of house X, without asking for a partition of houses Y and Z. Aand B, no doubt, must be joined as defendants; but the real contest in this case is between strangers to thefamily, namely, C and D, and there is no reason why such contest should not be determined without referenceto the remaining property of the family."

63. It is therefore clear from the above excerpts that the view taken by me that those two houses and thecompensation amount even though not included in the suit properties, the same could be ordered to beincluded during the final decree proceedings for effective partition. Accordingly, point No.(iii) is decided thatthe suit is not bad for partial partition.

64. Point No.(iv): The relationship among the parties is an admitted one, over which, there is no controversy.Periya Palaniappa Chetty, had three sons, namely, the first plaintiff-P.Balasubramaniam, D1-P.Arumugham,D2-P.Chidambaram, and two daughters, namely, D3-Palaniammal and D4-Vanchiammal and his wifePalaniammal, plaintiff No.2. The deceased Peria Palaniappa Chetty and his three sons being Hindus,constituted the co-parcenary and accordingly, each were entitled to 1/4th share. Consequent upon the death ofPeria Palaniappa Chetty on 16.4.1974, his 1/4th share in the co-parcenary is deemed to have devolved on hislegal heirs, namely, his wife(P2), and his sons and daughters(P1, D1 to D4) respectively. As such, it amountsto P1, D1 and D2(

p.arumugham vs p.balasubramaniam on 8 august, 2008

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