PATTUSAMI PADAYACHI Vs. MULLAIAMMAL AND ORS.

JUDGEMENT

(1.) THE plaintiff' sic O.S. No. 86 of 1967 on the file of the Subordinate Judge of Chidambaram, is the appellant. Muthusami Padayachi is the common ancestor. He married twice and his senior wife is called Pattathammal and his second wife was known as Pattayee. Muthusami Padayachi originally belonged to Silambur in Trichi district. He had two sons through his first wife, who are the husband of the first defendant in the action and the 4th defendant herein. The plaintiff is the son through the junior wife. The senior wife died in or about 1940 and the junior wife in 1943. Though Muthusami Padayachi left a daughter through his first wife, she died leaving a minor daughter who also died in 1949. Muthusami Padayachi, therefore, left behind him surviving the first defendant's husband as the eldest son, the 4th defendant and the plaintiff as his second and third sons. Muthusami Padayachi originally belonged to Silambur and it is Common ground that he divided his ancestral properties with his brothers and he secured considerable properties in the village of Silambur. After he married his first wife, who was a native of Tholuvur he shifted to the said village. The plaintiff's case is that though Muthusami Padayachi shifted to Tholuvur, he had considerable income from the joint family properties and with the assistance of such properties, he purchased various properties in the name of his senior wife at, Tholuvur and those properties, though standing in the name of the senior or the first wife Pattathammal, should for all purposes be deemed to be the family properties and Pattathammal was only a benamidar. On the foot of the said allegations and also on the ground that Muthusami Padayachi died without effecting a partition, the plaintiff filed the action for declaration that he is entitled to one -third share in all the properties mentioned in the plaint Schedules A to E and for a partition and separate possession and allotment of the shares of himself, the first defendant's branch and the 4th defendant's branch. According to the plaintiff, such properties are partible properties amongst the three branches referred to above. The plaintiff, of course, gave several details, regarding the manner and the method of purchase of various items of properties in the schedules by Muthusami Padayachi and claimed his share therein.

(2.) DEFENDANTS 1 to 3 filed a common written statement. According to them the ancestral properties acquired by Muthusami Padayachi in a partition between himself and his brothers were rain -fed lands of an extent of 18 acres and incapable of yielding any income. They would aver that the income was not even enough to maintain the family and consequently the suggestion of the plaintiff that Muthusami Padayachi purchased a further extent of 21 acres and built up a house in Tholuvur from the income of the Silambur lands is only a myth. They, therefore, deny that such of those properties which stood in the name of Pattathammal are not to be brought to the hotch -pot for division and that the plaintiff wrongly included those properties as partible properties. The defendants had claimed that Muthusami Padayachi's first wife, Pattathammal, belonged to a very rich and affluent family and the properties which stood in her name were all settled on her, or provided to her by her father and her ancestors and that Muthusami never contributed any money towards the Purchase of the said properties. We are not setting out herein the various items of properties contained in the suit schedules which are referred to by the plaintiff as family properties, but by defendants as Pattayee Ammal's properties and which, according to them, are not partible amongst the sharers of the joint family of which Muthusami Padayachi was the ancestor. This is so because, no particular argument was addressed before us on any identifiable item of the schedules as having been purchased by Muthusami Padayachi at a particular point of time from and out of the income of the joint family or that he provided the necessary funds for their purchase, but got them in the name of the senior wife. The main defence is that prior to his death in the year 1962, Muthusami orally effected a partition of the joint family properties amongst his three sons and he has made a fair division of the properties in the family. It is claimed that the lands in Silambur village, which was the ancestral village, were allotted to the share of the 4th defendant who was also fostered by one of the brothers of Muthusami Padayachi, one Sepperumal Padayachi and the other properties in Tholuvur were allotted to the shares of Krishnasami, |he husband of the first defendant and the plaintiff. Muthusami Padayachi also made it clear that the properties which stood in the name of this first wife Pattayee in the village of Tholuvur. were to be taken by her own sons, viz., 4th defendant and the 1st defendant's husband, the plaintiff being not entitled to a share therein. Furthering such a defence, defendants 1 to 3 would say that in pursuance of the said arrangement the sharers who were put in possession of their respective properties so allotted in such an oral partition effected by the common ancestor and in order to avoid any inconvenience in the matter of raising funds on their own respective shares obtained in such an oral partition, a record of such a prior arrangement was made under Exhibit B -1, dated 30th September, 1964 which is characterised as "Attavanai". According to the defendants, including the 4th defendant, Exhibit B -1 is a record of a past transaction and that in it the properties taken over by the plaintiff on the one hand, the 1st defendant's husband and the 4th defendant on the other, were all detailed and delineated and that this was only in evidence and substantiation of such evidence of possession of each of the sharers ever since the oral partition effected by the common ancestor. Defendants would add that ever since 1962, after the death of Muthusami Padayachi each of the branches were in enjoyment of their respective shares so allotted in the oral petition and so delineated in Exhibit B -1 and were paying the kist separately and enjoying the properties as absolute owners thereof besides alienating them for their necessity, benefit and convenience. The defendants 1, 2 and 3 referred to a settlement effected by Krishnasami the eldest son of. his wife and children and also to the fact that the said Krishnasami, out of his own funds, acquired some more properties which the plaintiff has claimed as particle properties in the schedules and that some of such items have been alienated by the 1st defendant and that the alienees are in possession of such properties. They refuted the allegation that such properties purchased by Krishnasami after the oral partition were so purchased be name in the name of his wife and that those items are also to be brought into the hotch -pot for division. The defendants 1 to 3 refer to the various alienations made by the plaintiff and other sharers which were alienations fully supported by consideration and maintained that such properties so alienated by each of the branches are in the possession of the alienees without any interruption, claim or demand by the sharers. Defendants also would claim that at or about the time when the oral partition was effected by the common ancestor Muthiah Padayachi, he divided the movables also as between his sons which included the out standings due to the family as well. They refer to the allotment of some of the out standings in favour of the plaintiff who is said to have collected and appropriated the same for himself. They would aver that the other outstandings which were taken over by the other sharers were recovered by them and in some cases by instituting suits for realisation thereof. In those circumstances, the defendants would contend that the plaintiff is estopped by his admission and conduct from claiming any share in either the immovable or movable properties which originally belonged to Muthusami Padayachi and would finally rest their claim on Exhibit B -1 and deny that the plaintiff is entitled to a second partition of already partitioned joint family properties.

(3.) THE other defendants in the action are alienees who claim that they are bona fide purchasers for value and refute the claim of the plaintiff that the properties so purchased by them are to be deemed as joint family properties. The lower Court has summarised as far as possible the defence of each of the alienees and it is unnecessary for us to recapitulate and reiterate them again. The plaintiff, at one stage, has given up defendants 16 to 18.