M SHANMUGHA UDAYAR Vs. SIVANANDAM

JUDGEMENT

(1.) The appellant is the first defendant in the suit. He was aged about 79 when the suit came to be instituted. He is a public man and a leading personality in Villapuram Town. He was M.L.A. for three terms. He was Municipal Councillor continuously for half a century from 1926 to 1976. He was also chairman of Villapuram Municipality on three occasions. He was a Director of the Co-operative Sugar Factory, Mundiyambakkam. Besides, he was the Chairman of Local Building Society. His first wife Alagi died in 1930. Then he married one Thaiyanayagi as his second wife. She also passed away in 1957. Plaintiff and defendants 2 to 7 are his sons and 8th defendant is his daughter through Thamyanayagi. The present first respondent /plaintiff instituted O.S. No. 63 of 1982 on the file of learned Subordinate Judge of Villapuram claiming partition and separate possession of his 1/8 share in the plaint schedule mentioned items and for his share of the income from the said properties from the date of plaint till date of possession.

(2.) The allegations in the plaint are that on 11-7-1932 there was division of the family properties between the appellant and his brothers under the original of Ex. A.1 partition deed. Plaint items 1 to 25 came to his share in the said partition. Items 26 to 41 of schedule I were purchased by the appellant from the year 1923 to 1926. They were not included in Ex. A. 1 partition deed and retained by the appellant for the benefit of the family comprising of himself and his sons. Items 42 to 76 of Schedule I were purchased in the name of the appellant from out of the income of ancestral properties when he was the manager of the joint family. The acquisitions were also out of joint exertions of all the members of the joint family. They were thrown into the hotch-pot and dealt with as joint family properties throughout. Items 77 to 92 were purchased under the sale deeds Ex. A. 10 dated 20-1-1941 and Ex. A. 15 dated 24-6-1948 by the appellant with joint family funds and treated as joint family properties by the appellant. Besides, the family owns cash and fixed deposits in several banks, jewels worth 150 severeigns and other movables described in plaint Schedule II. The 9th defendant is not the legally wedded wife of the appellant. Her daughter impleaded as 10th defendant during this appeal is not born to the appellant. In spite of the demand made by him on 1-3-1981 and thereafter, the appellant is not amenable for division. Provision for the marriage expenses of his sister 8th defendant has to be made in the partition.

(3.) Defendants 2 to 6 more or less sailed with their brother plaintiff except that the second defendant pleaded that item 52 of plaint 'A' schedule was purchased by him with his savings from his income as Village Munsif. The third defendant claimed that he is decently employed at Neyveli and he has purchased items 70 and 71 from his professional income. According to the fourth defendant items 72 and 73 were acquired from the wherewithal provided by his father-in-law. The fifth defendant alleged that sub-items 5, 6, 7 and 8 in item 11 tractor and its accessories are his self-acquisitions. However, the sixth defendant maintained that all the items are joint family properties including those to which defendants 2, 3, 4 and 5 laid separate claim. Defendants 7 and 8 chose to remain ex parte during trial. The counsel for the 9th defendant reported no instructions after filing of the written statement by her.