FAMILY MANAGER MURUGA PADAYACHI DIED Vs. FAMILY MANAGER ARUMUGA PADAYACHI S/O ALAGA PADAYACHI AT POTHIRAMANGALAM VILLAGE THITTAGUDI TALUK SOUTH ARCOT DISTRICT DECEASED

JUDGEMENT

(1.) ONE Alagappa Padayachi had three sons, Sellamuthu, Murugan (D-1) and Arumuga (the plaintiff). He died intestate leaving behind joint family properties. Sellamuthu died intestine in 1958 leaving behind his wife Chinnapillaiammal. They had not issues. He was the manager of the joint family properties till his death and therefore the first defendant was managing the joint family properties. Chinnapillaiammal died in 1972. All the properties are enjoyed by the first defendant in his capacity as Manager. About 5 or 6 years before the suit the first defendant permitted the plaintiff to enjoy some items of the suit property. There was no partition by metes and bounds but enjoyment was as per convenience. At the instance of defendants 2 to 5 the first defendant had concocted some false documents to deny the plaintiff his half share in the property. When he came to know about that the plaintiff made a claim for partition, not only did the first defendant deny his right but he also alleged that Chinnapillaiammal had left a Will, in which her share was bequeathed to defendants 4 and 5 and that the plaintiff has been given his share in 1960 itself and therefore, he was not entitled to any share in the suit properties. But the case regarding the Will is a false one. No such document was executed by Chinnapillaiammal and therefore, the plaintiff is entitled to half share since on the death of the brother Sellamuthu and his wife Chinnapillaiammal the plaintiff and the defendant would be equally entitled to that share also and therefore, the joint family property of Alagappa Padayachi must be divided into two equal shares. This in brief is the case of the plaintiff.

(2.) THE plaintiff is the first respondent herein. THE defendants 1 to 5/appellants 1 to 5 are Muruga Padayachai, the brother of the plaintiff, his two wives, Thulsiammal and Palaniammal, and the two sons through Palaniammal. THE other respondents are alienees of particular items of the suit property.

(3.) THE learned counsel for the appellants would submit that the evidence has to be read as a whole and for this reliance was placed on S.Sundaresa Pai v. Sumangala T.Pai S.Sundaresa Pai v. Sumangala T.Pai (2002)1 S.C.C. 630 and Chikkim Koteswara Rao v. Chikkam Subbarao (1970)2 MLJ. 127 (S.C.). It was also pointed out that sometimes since questions are not recorded it is not possible to decide whether the answers were made in response to questions or to suggestions. THE evidence of D.W.2 who is the fourth defendant also does not support the case of an earlier partition because he does not know whether there was an early partition, In fact one gets a clue even in the evidence of D.W.3. He is the attestor of Chinnapillaiammal's Will and he indicates what Chinnapillaiammal told him about the properties bequeathed. If indeed there had been a partition in 1960 and separate properties had been allotted to Chinnapillaiammal, the plaintiff and the first defendant, this answer would be meaningless. It is relevant to note that this witness is none other than the brother of Chinnapillaiammal and if in 1960, she had been allotted separate properties than he should know. So, though Exs.B-12 and B-27 would show that for certain properties had been paid in the name of Chinnapillaiammal, the fact that she had stated at the time of execution of the Will that she is giving her one third share to defendants 4 and 5 would also go to show that there was no earlier partition, Exs.B-12 and B-27 would only indicate separate enjoyment for convenience. THE defendants have also not made any effort to examine an independent witness, who would speak about the 1960 partition. So when the parties to not dispute that there was a joint family the presumption is that the joint status continues until the person, who pleads partition proves that there was severance. In this case neither the oral nor the documentary evidence adduced on the side of the defendants show that there was a partition in the year 1960. It was also submitted that some of the properties would show the separate enjoyment because the boundaries specifically indicate Muruga Padayachai's land or Arumuga Padayachai's land as the case may be and that there was no occasion to refer to these boundaries as lands belonging to an individual person if the property had continued to be the joint family property. THE answer to this is that all the lands standing in the name of individuals, though not included originally in the plaint schedule, have now been included by amendment. THE exhibits also show that even those properties which have been alienated to other defendants, who do not belong to the family, have been included so that an equitable allotment can be made at the time of final decree. THErefore, the respondent is entitled to claim partition but this share will depend upon the next issue which is the Will.