K V DURAISAMY Vs. D PERUMALSAMY MINOR

JUDGEMENT

(1.) APPELLANTS K. V. Duraisamy and Pemmakkal in A. S. No. 815 of 1981 are brother and sister. The first item of the subject matter of the appeal is the land measuring 5. 70 acres in Survey No. 68 of Pasur village. This land was purchased jointly by their mother Gengemmal and Pemmakkal under Ex. B-1 the sale deed dated 18. 11. 1957. In the family partition between-first appellant duraisamy and his brother Rangasamy under Ex. B-3 dated 28. 10. 1966 a moiety of this land was allotted to the share of the first appellant. The remaining half was settled in his favour by sister Pemmakkal under Ex. B-4 dated 29. 10. 1966. Respondents who are the minor sons of first appellant Duraisamy represented by their mother Rukkammal instituted O. S. No. 98 of 1977 on the file of learned subordinate Judge of Coimbatore for partition and separate possession of their 2/ 3rd shares in this item as well as items 2 and 3 described in the plaint. While the third item is movables, the second item comprises of an extent of 5. 88, 2 acres in Survey Nos. 72/1,4 and 5. These lands were purchased by the first appellant under Ex. B-31, dated 2a4. 1974, Ex. B-32, dated 28. 1. 1974, ex. B-33, dated 1. 3. 1971 and Ex. B-34, dated 11. 6. 1970. It is the case of the respondents that these lands partake the character of the joint family properties as they were purchased from out of the income of the ancestral lands. And their father who is given to an immoral and wayward life, in order to defeat the rights of the respondents and their mother, had executed Ex. B-51 sale deed dated 18. 1. 1977 in the name of his sister the second appellant with false and make-believe recitals. And this sale deed executed neither for necessity nor for family benefit is invalid and they are entitled to ignore the same.

(2.) . Subsequent to the institution of the suit, Rukkammal, wife of the first appellant filed O. S. No. 249 of 1977 in the court of District munsif of Tirupur and numbered as O. S. No. 1138 of 1978 on the file of subordinate Judge of Coimbatore against the appellants for directing the first appellant to pay her past maintenance of Rs. 600 and future maintenance at rate of Rs. 300 per month from the date of suit and for creating a charge over the suit property for the due payment of the maintenance amount. Second appellant pemmakkal filed O. S. No. 117 of 1977 in the Court of the Subordinate Judge of coimbatore seeking permanent injunction restraining Rukkammal and five of her close relatives from interfering with her enjoyment of the suit properties on the allegation that on account of B-51 sale deed dated 18. 1. 1977 in her favour, her possession was sought to be disturbed.

(3.) THERE is no dispute now that in the first item the joint family owns half of it and the remaining moiety is the separate property of the first appellant. Learned counsel for the appellants submitted that the extent got by the first appellant in the family partition under Ex. B-3 in 2 acres and 85 cents of dry land. The evidence of the first appellant as D. W. I is to the effect that he sunk a well in that land at a cost of rupees ten or fifteen thousand within two or three years after partition. He installed an electric motor and pumpest in that well. Since there was no water in the well, he sold away that motor also. He raised only dry crops in the field. So there was no ancestral nucleus which could have formed the source of purchase money for the acquisition of the lands described in suit item No. 8 under Exs. B-31 to b-34 during the years 1970-74. The next argument of learned counsel for the appellants is that in 1960 the first appellant started his arecanut business and continued the same. D. W. I states in him evidence that the business yielded good profit. And from the surplus he made in the business and by borrowing the lands were purchased under the sale deeds referred to above. Ex. B-23 in the certificate of Registration issued by A. C. T. O. , Avinashi to the first appellant on 18. 4. 1966. Exs. B-25 and B-27 are the summons issued by A. C. T. O. , Avinashi to the first appellant on 19. 9. 1966and 21. 12. 1971 respectively. Ex. B-26 is the permit granted by D. C. T. O. , Avinashi to the first appellant on 20. 4. 1967. Exs. B-5 to B-10 are receipts issued by Assistant Commercial Tax Officer, avinashi to the first appellant for payment of sales tax from 1965 to 1968. Exs. B-11 to B-15 are receipts passed by Deputy Commercial Tax Officer for payment of sales tax by the first appellant from 1968 to 1970. Ex. B-16 is the refund voucher issued by D. C. T. O. , Avinashi to the first appellant for a sum of rs. 14. Ex. B-17 is the licence granted to the first appellant under Commercial taxes Act to carry on arecanut business for the year ending 31. 3. 1965. Ex. B-50 is another licence granted by D. C. T. O. in favour of the first appellant. He has renewed licences for the years 1967-68 and 1968-69 under Exs. B-19and B-20 respectively. Ex-B-49 dated 21. 7. 1965 and B-18 dated 21. 7. 1967 are temporary receipt and Certificate of verification of Controller of Weights and Measures issued to the first appellant. Exs. B-21 and B-22 are notices of demand for payment of Profession Tax given to the first appellant on 21. 9. 1972. Ex. B-24 dated 15. 6. 1967, Ex. B-29 dated 3. 9. 1967 and Ex. B-30 dated 11. 11. 1972 are notices passed from the Commercial Tax Department to the first appellant. Ex. B-28 is the order issued by D. C. T. O. on 16. 9. 1967. These documents go to show that the first appellant was engaged in arecanut business from 1965 onwards. On the basis of the evidence of D. W. I that he commenced his business 10 years prior to his purchases, learned counsel for the appellate wanted us to infer that the starting of the business was in the year 1960. However, excepting the abovesaid verbal version of D. W. I the documents indicate that the business was started only in the year 1965. Whatever may be the year of commencement of arecanut trade, D. W. I admits in cross-examination that he cannot say in which year he commenced his business. Though he claims that there are accounts for his business and he was getting Rs. 15,000 as profits, he has not chosen to file those accounts to prove his business income. Admittedly he has not paid income-tax for his business income. He has not invested the surplus from the business in any Bank. So there is no material to come to the conclusion that there was sufficient income from the business which could have formed the source of purchase money for the acquisition of item 2 lands. The first appellant also commented upon the absence of any plea on the part of the respondents that D. W. I started arecanut business only out of the ancestral nucleus. However, in view of the specific admission of the first appellant in the witness box that joint family funds alone were initially invested for the purpose of commencing the trade, this argument of learned counsel has no substance.