M SETHURAMALINGAM Vs. K RAMALAKSHMI

JUDGEMENT

(1.) THESE two appeals arise out of a suit for partition. The earlier appeal is filed by the first defendant in the suit and the later appeal is filed by the plaintiff. The plaintiff and defendants 2 to 5 are the sisters of the first defendant. Their father Mahalingam Chettiar died on 7. 11. 1968. His wife died in 1980. It is the case of the plaintiff that Mahalingam Chettiar had some ancestral properties in the shape of lands described as item 4 in the plaint schedule, but the income therefrom was not sufficient for maintaining the family. According to her, she carried on business with the help of her husband and with the aid of the income from the business acquired items 1 to 3 which are house properties. In the plaint as originally filed, there were only four items. But, subsequently, by an amendment, two more items were introduced, one being cash of Rs. 43,600 and the other being jewels worth Rs. 53,000. The amendment was only with respect to the schedule by introducing two more items, but no part of the body of the plaint was amended. No recital was included in the plaint as regards the said cash and jewels. The plaintiff also said that defendants 2 to 5, her sisters had already relinquished their interests in the property on 30. 3. 1981 under Ex. B-1 and thereafter, the properties were owned in common by the plaintiff and the first defendant only. The plaintiff clairned one half share in items 1 to 3 and l/4th share in the remaining properties.

(2.) THE suit was contested by the first defendant. According to him, the release by defendants 2to 5 enured only in his favour and the plaintiff cannot claim the benefit thereof. He contended that items 1 to 3 were also acquired with the aid of joint family nucleus and all the items 1 to 4 were only joint family properties. He also contested the claim of the plaintiff for items 5 and 6, denying the existence thereof. He raised a plea that some of the lands shown in the plaint had already been sold and they were not available for partition.

(3.) BEFORE considering the main question argued by the plaintiff as regards the character of properties in items 1 to 3, we will dispose of the other minor contentions. Items 5 and 6 are, as stated earlier, cash of Rs. 43,600 and jewels worth Rs. 53,000. There is no averment whatever in the plaint that the said items are in existence and available for division. The evidence adduced on the side of the plaintiff is absolutely worthless. There is nothing on record to prove that cash of Rs. 43,600 was available at the time of the suit. According to the plaintiff, the cash was invested by the first defendant in the business run by him under the name Madurai sakthi Calendar Company . But, the books of account relating to the said company do not show cash balance of Rs. 43,000 and odd. In any event, it should be noted that the first defendant has paid a sum of Rs. 40,000 to the other sisters from the joint funds. In those circumstances, we cannot accept the case of the plaintiff that a sum of Rs. 43,600 was available for partition among the parties.