PARASUMANNA LAKSHMANIER Vs. P.L. KRISHNAMACHARY AND ORS.

JUDGEMENT

(1.) In Appeal No. 286 of 1970, the first defendant in O.S. No. 456 of 1967 on the file of the Court of the Subordinate Judge, Madurai, is the appellant; the second defendant is the appellant in Appeal No. 287 of 1970; and defendants 5 to 7 are the appellants in Appeal No. 272 of 1971. Parasumanna Lakshmanier the first defendant was adopted to one Parasumanna Chakrapani Iyer. The plaintiff and defendants 3 and 4 are his sons; the second defendant is his wife; and defendants 5 to 7 are his daughters. The plaintiff has instituted this suit for partition, including in the plaint, three schedules A, B and C.-A. schedule relating to immovable properties, B schedule to moveables and C schedule to outstandings. He claims an 1/4th share in all such properties delimited by him in the various schedules which according to him are joint family properties. It is common ground that the first defendant was adopted to Chakrapani Iyer. The plaintiff's case is that Chakrapani Iyer, was doing several kinds of business and in the course of such varied avocations acquired properties, both movable and immovable. The first defendant as the adopted son and as a member of the coparcenary consisting of Chakrapani Iyer and himself continued the ancestral business set up by Chakrapani Iyer, and in the exercise of the profession and calling, the plaintiff claimed that the first defendant (as father) purchased and acquired the schedule--mentioned properties. In that view himself and defendants 3 and 4, as the sons and undivided members of the joint family consisting of themselves and his father, are entitled to a partition and separate possession of 1/4th share in them. He has set out the manner in which Chakrapani Iyer, initiated his business and how it was continued by the first defendant and would add that the various immovable properties either standing in the name of the first defendant or in the name of one or the other members of the family including the mother, the second defendant, are all properties acquired from joint family nucleus and income and hence have to be treated and considered as joint family properties. He refers to a Panchayat held in or about the 3rd February, 1966, which Panchayat was occasioned by some internal disputes in the family and says that five Panchayatdars, under muchalika dated 3rd February, 1966, entered upon the reference and the members interested submitted a list of properties of the joint family and also the outstandings, but for reasons not very specifically stated, the arbitration fell through. The plaintiff would refer to two settlement deeds dated 2nd August, 1967 one in favour of defendants 5 and 7 and the other in favour of the sixth defendant whereby certain items set out in plaint A schedule were settled on the daughters which the plaintiff challenges as alienations which ought not to have been done by the father-manager after there was an unequivocal declaration by one at least of the members of the joint family to sever joint family status. According to him, the unambiguous reference to the Panchayatdars to adjust the differences which by then arose as between the members of the joint family by itself is a transaction indicative of the intention of one of the coparceners to separate from the joint family and the attempt of the father manager after such intention has been so declared to deal with the properties of the joint family by settling one or more of them in favour of the female members of the family is not permitted in law. He would claim that the 86 items of moveables such as the furniture, vessels and jewels mentioned in the B schedule do also constitute joint family assets and are liable to be partitioned amongst the sharers. He has set out in the Schedule C. 29 items of outstandings of which one is admitted by the third defendant to be due and payable by him. The rest of the items are claimed to be outstandings which are payable to the joint family as such and therefore constitute joint family assets which in their turn also have to be brought into the hotchpot for the purpose of division.

(2.) The first defendant's case is that he was no doubt adopted to Chakrapani Iyer, but Chakrapani Iyer, by himself did not have any business of his own nor was he in affluent circumstances so as to provide him with any joint family nucleus to enable him to trade with such capital provided for and to acquire properties therefrom. The first defendant's specific case is that he started business on his own in 1917 before the plaintiff and defendants 3 and 4 are born and that all the properties excepting item 1 of the A schedule to which we shall presently advert to are his own self-acquired properties in which neither the plaintiff nor defendants 3 and 4 have any interest by birth as coparceners of the family.

(3.) The second defendant in her separate written statement supports her husband and further contends that item 7 of the A Schedule belongs to her absolutely as she inherited the same from her mother who was carrying on a karupatrai business successfully and that it was with the funds so provided by her mother that she acquired item 7 of the plaint A schedule. She would also allege that she is possessed of jewels, vessels, furniture, cash and out-standings which belonged to her, the origin of which she would trace to the provision made by her mother Meenakshiammal from time to time from the business which she was independently carrying on.