KANAKARAJ Vs. SIVAKOZHUNDU

JUDGEMENT

(1.) FOR the sake of convenience, the parties will be referred to as per their rank in the trial court. The first defendant, Kanagaraj has preferred the second appeal against the concurrent findings of both the Courts below.

(2.) THE short facts are: Defendants 1 to 4 are the sons of one Manickka Gounder. Manickka Gounder owned 0.72 cents of land at Periya Babu Samuthiram Village by inheritance. THE subject matter of the suit is Survey Nos.129/1 - 0.19 cents, 129/9 - 0.20 cents and 141/2 - 0.3 1/2 cents, totalling 0.42 1/2 cents. According to the plaintiff the said property of 0.42 cents had been purchased from out of the income derived from the joint family land of 0.72 cents owned by Manickka Gounder. It is also his case that apart from the 0.72 cents, the joint family was owning cows and sheep and income was derived from that also. He had purchased the undivided 3/4th share of defendants 2 and 3 and another brother under the sale deeds, Exs.A.3 and A.2 respectively. THE suit properties have been mortgaged to the fifth defendant and under the sale deeds, Exs.A.2 and A.3, he is liable to discharge the said mortgage. It is also alleged by the plaintiff that it is not the exclusive property of the first defendant as claimed by him. THErefore, it became necessary for him to file the suit for redemption of the mortgage and also for partition and separate possession of his 3/4th share in the suit properties.

(3.) THE learned counsel for the respondent/plaintiff argued, it is no doubt true such recitals are available in Ex.A.1, however, there are other circumstances to establish the property owned by Manickka Gounder, namely 0.72 cents, was yielding income. Further, the joint family owned several cows and sheep. THE milk and the sheep were sold and there was good income for the joint family. It is urged, taking advantage that he is the eldest member of the family, the first defendant had introduced such recitals in Ex.A.1 to gain advantage over his brothers and to cheat them. It is also stated that it is conventional to make such recitals in a document when the other brothers are young. It is also brought to my notice that though D.1 would claim that he was working in a sugar factory and was getting salary income, which he utilised for purchasing the suit properties, he had produced documents only in the name of Subramani to support the above, whereas his name is only Kanakaraj. On a careful analysis of the documents filed on behalf of the first defendant, I am convinced that all the documents filed are only in the name of Kanakaraj and there is no evidence, much less connecting evidence, to show that the first defendant had an alias name "Subramani". THErefore, I find it difficult to accept the submission put forward on behalf of the first defendant that he had an alias name and in the sugar mill he is known by the name Subramani. However, that will not militate the case of the first defendant. It is important to bear in mind that the purchaser, namely, the plaintiff had not examined his vendors D.3 and D.4 to support his case that the joint family land of 0.72 cents had irrigation facility and it was yielding income. D.3 and D.4 remained ex parte and no steps had been taken by the plaintiff to summon them as witnesses and examine them to lend support to his contentions. THE case of the plaintiff rests only on the oral evidence adduced by him and that of P.W.1. Though P.W.1 had stated that the family consisting of D.1 to D.4 had 10 cows, and 300 sheep, his evidence is not corroborated by P.W.2 in all the details. Both P.Ws.1 and 2 were unable to give any details as to the income derived from selling the milk or by selling the sheep. Except the ipse dixit of P.Ws.1 and 2, no details are available to reach the conclusion that the joint family owned several cows and sheep, which yielded income. THE fact that 0.72 cents of land owned by Manickka Gounder, the father, is a rain-fed land is admitted. Though it is alleged on behalf of the plaintiff that a motor was installed and, thereafter, the said land yielded sufficient income, the evidence shows that the first defendant alone had borrowed amount from the Canara Bank and installed the motor and the other brothers are not parties to the said borrowing.