M SAMBANDAM Vs. M CHOCKALINGAM

JUDGEMENT

(1.) THE plaintiffi's the appellant herein. THE averments in the plaint are briefly as follows: THE plaintiff and the defendant are the sons of one manickam Pillai. THEy constituted a Hindu undivided joint family, owning and possessing extensive immovable properties. THE family was managed by Manickam pillai till 1953 and the management of the family estate was taken over the defendant as the eldest malt member of the family from 1953. THE two sisters of the plaintiff and the defendant were already given in marriage, during the life time of Manickam Pillai. When the father died in 1953 the plaintiff was aged about 18years and the defendant was aged about 33 years. THE defendant, taking advantage of the emotional upheaval of the adoles-cent of the plaintiff, treated the plaintiff as puppet in his hand. THE marriage of the defendant was celebrated by the father at the cost of the joint family funds. THEre are four children to the defendant. THE eldest was graduated from Regional Engineering College and after graduation he was sent to United States of America for further studies at the cost of the joint family. THE second and third sons are having collegiate education. THE fourth son is doing medical education. THE marriage of the plaintiff with his sister's daughter was performed at the expenses of his sister's husband. THE defendant was having his family at Trichy for about 15 years and then he shifted it to Madras finally. He was serving in several stations in the Agriculture Department and he was incurring expenses for dual establishment. THE salary drawn by him could not be sufficient to cater to the copious and luxurious needs of his family. It is only from the earning and income from the joint family properties, the defendant, was meeting out his family expenses and was also advancing loan to several persons in the name of benamidhars. In 1960 when the Government envisaged the programme of land ceiling the defendant having become apprehensive hustled to draw a partition deed in respect of a portion of the properties of the joint family in order to evade the net of the proposed Land ceiling Act. But it was not intended to be operative and the same was only for the purpose of avoiding the Land Ceiling Act. A document purporting to be a partition deed was executed by the plaintiff only and for the purpose of shielding against the on-slaught of the Land Ceiling Legislation. It was never the intention of the parties to cause severance of the status of the Hindu undivided family and this family continued to be joint. THE plaintiff was subjecting himself to the rigour of discipline which the defendant imposed on him and the plaintiff has never had any say either in the matter of administration of the family affairs or in other areas of action. He had sent a lawyer's notice on 1. 10. 1975 to the defendant demanding partition, for which the defendant has sent a frivolous reply. THE defendant in his reply has stated that severance of status has taken place between the parties by means of partition agreement of the year 1957 and the partition deed of the year 1960. THEre had never been any partition of the family properties either by metes and bounds or by severance in status. THE family continued to be joint despite the so-called partition agreement. THE parties had been in possession and enjoyment of the properties as co-parceners jointly. THE defendant attempts to banish the plaintiff from the suit properties in the guise of the said documents. Both the parties have jointly executed sale deeds in the year 1958. Mortgages from various parties for unpaid sale consideration of the joint family properties were obtained and the unpaid sale consideration was collected by the defendant as Manager of the Hindu undivided family estates. He had also purchased properties in the joint names of both parties in 1961, and it has been disposed of in the year 1970 and the sale proceeds were collected by the defendant. In 1964, the defendant purchased property in the name of the plaintiff and the sale deed originally was written in the name of the defendant and subsequently altered in the name of the plaintiff. THE family properties were mortgaged to the Cooperative Land Development Bank. THE property referred to in D schedule have been alienated by the defendant. THE alienations were fixed by the defendant and the sale price of the properties was negotiated only by him. THE sale price received were taken only by the defendant. THE defendant has purchased building properties in the name of the plaintiff and the sale consideration was paid out of the joint family funds. THE plaintiff has been residing in the ancestral house all these years. THE entire house belongs to the parties as well as to their brother-in-law viz. ,muthukumaraswamy. When one murugesam Pillai fall into arrears of lease amount a mortgage deed was obtained in the name of the defendant from the said Murugesam Pillai for the lease arrears due to the joint family. THE landed properties were never managed by the plaintiff at any point of time. THE landed properties in South Arcot district were under the cultivation of lessee, the said Murugesam Pillai. THE lands in Natham village were in the collective farming with the lands of muthukumaraswamy Pillai and one Ramanatha Ayyar. It was under the agency of muthukumaraswamy Pillai,who used to render his accounts to the defendant. In respect of the lands in Kongarayannallur village, it was cultivated by one sambandam Pillai. THE lease amounts were collected by the defendant, and he embarked in the process of disposing or alienating bulk of the items of the properties both his share as well as the share of the plaintiff. He is, therefore, liable to render account to the plaintiff the earnings and income arising out of the joint family estate inclusive of the cash left by their father. He is also accountable for the investments made in the his name. THE suit is for partition of the'b, C, E and F'Schedule properties. Since all the properties in'd'schedule have been alienated by the defendant no partition is required in respect of the same. In respect of items 1 to5 of the'e'schedule properties,which are belonging to the parties as well as their brother-in-law Muthukumaraswamy in equal moities the plaintiff is entitled to l/4th share in the same.

(2.) THE defendant in his written statement has stated as follows: THE plaintiff and defendant are divided not only in status, but they have already partitioned the joint family properties by an agreement dated 20. 7. 1957. THE partition was confirmed by means of a registered partition deed dated 31. 1. 1960. Both the agreement of partition and the registered partition deed were written and executed out of free will, consent, and with full knowledge with regard to all family properties and separate properties of this defendant. No family property was left undivided. THE parties began to enjoy their respective shares from the time, of division separately. Since the plaintiff has not asked for any relief for cancellation of the valid partition deed, the suit is liable to be dismissed in limini. Since the family properties, were already divided and acted upon, there is no necessity for any fresh partition. THE parties have taken legal proceedings for collection of rent of their share of properties separately. THE properties purchased, without the knowledge and consent of the defendant,at Kongarayanallur, was sold and the sale proceeds also were divided between the parties. THEre was neither re-union nor joint family after valid partition. Even before the death of the father, the defendant got large extent of properties from his maternal grand-father under a will executed and registered by him on 19. 1. 1924. THEy are landed properties and a portion of house at Natham. THEy are self acquired properties of this defendant. THE plaintiff is now living in a portion of the said house with the permission of the defendant. It is false to state that the plaintiff was acting according to the wishes of the defendant. It is also false to state that the marriage was celebrated at the expenses of the joint family and the marriage of the plaintiff was celebrated at the expenses of his father-in-law. THE partition agreement and the partition deed were not made to avoid the proceedings of the anticipated Land Ceiling Act, as the family never owned large extent of lands to attract the provisions of the Land Ceiling Act. THE properties were looked after by the brother-in-law of the plaintiff since the defendant was away from the village. Misunderstanding arose between the parties after the death of the father,and a partition was effected. After division, the properties purchased by this defendant by himself were under the management of the plaintiff and his father-in-law. THE plaintiff and his father-in-law are liable to account in respect of the income from the properties in Natham allotted to the plaintiff. THE plaintiff is in possession of his properties even today. No mortgage was taken for the alleged unpaid sale consideration by the defendant. It is false to say that the defendant purchased properties in the name of the plaintiff. It is false to say that certain properties were not included in the partition. It is not true to say that the entire sale price of d schedule properties is with the defendant. THE defendant sold only his share of the property. THE defendant did not collect any lease amount of the plaintiff. THE relationship of the parties got much strained due to the interference of their brother-in-law Muthukumaraswamy Pillai, who became the father-in-law of the plaintiff. THE suit is barred by time. Item No. 7 of the property was already partitioned by metes and bounds. Items 1 to 6 and 1. 54 acres in r. S. No. 255/6 are the self acquired properties of the defendant. THE defendant is also the owner of 31cents of natham jari and trees in R. S. No. 194/1a and also half the house with site, trees etc. in R. S. No. l94/la measuring 56cents. THE properties described in'e'schedule were not the joint family properties. THEse properties were obtained by the defendant under the will for his benefit. THE moveables mentioned in'f schedule were not in existence. THE suit is liable to be dismissed.

(3.) ACCORDING to the defendant, in his written statement, the plaintiff had played a fraud and got a loan sanctioned in his name when he wanted to purchase a motor and pumpset. But, in his evidence, he has stated that he has borrowed the amount due under Ex. A-11 mortgage as a principal borrower and the defendant is only a surety. In Ex. A-11 mortgage not only the plaintiff and defendant are the mortgagors but their sons are also shown as mortgagors. If the defendant borrows money as a principal borrower as claimed by him is it not enough that the plaintiff affixes his signature as a surety" the joining of the children of the plaintiff and also the children of the defendant also in the mortgage deed under Ex. A-11 would show that the defendant only wants to gain some support for this theory of division between the brothers by putting forward a case of fraud in his written statement and giving evidence as principal borrower and surety in his evidence as principal borrower and surety in his evidence which are not in conformity with each other.