VEERASEKHARA VARMARAYAR Vs. AMIRTHAVALLIAMMAL

JUDGEMENT

(1.) THE first defendant in O.S. No. 187 of 1965 on the file of the Court of the learned Subordinate Judge, Cuddalore is the appellant herein. There was a joint Hindu family consisting of one Duraiswami Varamarayar and his three sons, Chandrasekhara Varamaravar, Gnanasekhara Varamaravar and Veerasekhara Varamarayar, the appellant herein. The father died about ten years prior to the institution of the suit. Thereafter the joint family continued comprising of the three brothers alone. Chandrasekhara died in the year 1964, survived by his widow, the 2nd defendant, and his children, defendants 3 to 7 in the suit. Later in November 1964, Gnanasekhara also died survived by his widow the 1st plaintiff and the only minor daughter the 2nd plaintiff. The suit was instituted by the two plaintiffs for partition and for recovery of mesne profits. Their case was that in the beginning of 1961, there was a division of the family properties as between the three brothers by the intervention of panchayatdars and a list was prepared allotting the properties to all the three brothers. According to the plaintiffs, the plaint A schedule properties were allotted to Chandrasekhara, the plaint B Schedule properties were allotted to Gnanasekhara, the plaint C Schedule properties were allotted to the appellant and the plaint D Schedule properties were kept in common. Their further case was that the parties contemplated execution of a regular partition deed later; that notwithstanding the preparation of the list, it was the 1st defendant who was looking after all the properties; that the 1st defendant did not give the share of the produce out of the properties belonging to the deceased Gnanasekhara as well as the properties kept in common, namely, the plaint D Schedule properties; and that it occasioned the institution of the suit. Consistent with their case that a partition had already taken place in 1961, the plaintiffs claimed recovery of possession of the plaint B Schedule properties and partition and allotment of an one -third share in the plaint D Schedule properties with the consequential relief of recovery of mesne profits in respect of the said properties. Alternatively they prayed for partition of the entire plaint -schedule properties and allotment of an one -third share to the plaintiffs. One specific item with reference to which a claim was made by the plaintiffs was based on the allegation that after the death of Gnanasekhara, the appellant herein sold away casuarina trees of the value of Rs. 30,000/ - and not a single pie out of the same was paid to the plaintiffs representing the share of Gnanasekhara.

(2.) THE appellant herein resisted the claim of the plaintiffs. According to him, there was no partition as alleged by the plaintiffs in the beginning of 1961. He also put forward a contention that items 38 to 46 covered by plaint D schedule, though purchased in the name of Duraiswami Varamarayar, father of the appellant, really belonged to Maragathammal, sister of the appellant, who had come and was living with the family of the appellant since about 40 years prior to the institution of the suit, that the said properties were purchased out of her own separate funds and that consequently they did not belong to the joint family. Barring the above contention, the 1st defendant did not have any objection to have the admitted items of family properties divided into three shares and one share being allotted to the plaintiffs in the suit. His further contention was that the sum of Rs. 30,000/ - by way of sale of casuarina trees was obtained even during the lifetime of Chandrasekhara and Gnanasekhara; that they had spent away the said amount and that therefore the plaintiffs had no right to claim any share therein. His further case was that the family was doing Guru pooja by spending about Rs. 500/ - on the anniversary day every year for one Ayyakannu Samiar, who was the paternal uncle of the 1st defendant -appellant and his brothers; that similarly the family was spending every year a sum of Rs. 300/ -for doing utsavam, namely, Thira Somavaram festival in the month of Karthigai for the Thiruchopuranathar deity in the Tiruchopuram village; and that in the event of partition and allotment of an one -third share of the properties to the plaintiffs, a charge should be created over them to secure the performance of the Guru pooja and the utsavam. He appended a list of alleged debts due by the family to the written statement and contended that they were family debts binding on all the three brothers and therefore provision should be made for the discharge of those debts in the suit itself.

(3.) ON a consideration of the materials placed before the court, the learned trial Judge has held that the partition pleaded by the plaintiffs as having taken place in the beginning of 1961 is not true. He has also come to the conclusion that the case of the appellant that Items 38 to 46 covered by plaint D Schedule belonged to Maragathammal, though the title deeds stood in the name of the father of the parties is not true. With regard to the debts, the learned trial Judge has held that the debts were untrue and they have been put forward deliberately by the appellant to diminish the share of the plaintiffs in the family properties. With regard to the claim for performance of Guru pooja and utsavam, the finding of the learned trial Judge is that the family as such was under no obligation to perform either Guru pooja or utsavam and the fact that one or the other of the members of the family was performing them will not make the same an obligation on the family as such, so as to warrant creation of a charge over the properties. With regard to the sum of Rs. 30,000/ -, obtained by way of sale of casuarina trees, the finding of the learned trial Judge is that the casuarina trees were sold only after the death of Chandrasekhara and Gnanasekhara and therefore Chandrasekhara and Gnanasekhara did not receive a single pie out of the same and that consequently the plaintiffs are entitled to one -third share in the said amount, namely, Rs. 10,000/ -. Under these circumstances by his judgment and decree dated 30 -11 -1966, the learned trial Judge passed a preliminary decree for partition and separate possession of the plaintiffs' one -third share in the plaint A, B, C and D Schedule properties and gave a direction that an account be taken of the income from all the suit properties and of future mesne profits under Order 20, Rules 12 and 18, Civil Procedure Code in final decree proceedings, in which the plaintiffs will be entitled to an one -third share. It is against this judgment and decree that the present appeal has been preferred by the 1st defendant in the suit.