R. SELVARAJ Vs. R. RADHAKRISHNA PILLAI

JUDGEMENT

(1.) THE unsuccessful plaintiff in O.S. 3 of 1968 on the file of of the court of the Subordinate Judge, Nagapattinam, is the appellant. Originally the suit was numbered as O.S. 42 of 1967 on the file of the Court of the District Judge, East Tanjore at Nagapattinam. The suit is one for partition and separate possession of the plaintiff's one third share in the suit properties and for future profits. The plaintiff's case is that his paternal grandfather Rajagopal Pillai started a photo business in 1917 under the name and style of Sri Krishna Photo Studio. The first defendant plaintiff's father and the second defendants is the step -brother of the plaintiff. It is claimed that the first defendant got himself associated with his father in the photo business and both of them ran it as a joint family business. When the grandfather Rajagopala Pillai became old, the first defendant was in sole charge of the studio and the business and the plaintiff after completing the school course, participated in the same and contributed his labour also. Thus, the family photo business was continued after the death of Rajagopal Pillai in 1965 and considerable properties were acquired from and out of the profits of the business. The plaintiff says that he became an expert in the said business and the grand -father himself till his death was doing the sedentary part of the business. As the joint family had no other business or source of earning except the photo studio the plaintiff acquired a right by birth in the family activity and the assets secured in exercise of such profession. The family acquired the house in which the studio is at present situate besides agricultural lands of an extent of 6.80 acres in Serukudi village from and out of the business profits. It is claimed that large sums of money have also been deposited by the first defendant in his name in various banks. Soon after the death of the grandfather there were misunderstandings between the plaintiff and the first defendant, who was under the influence of his second wife and by the end of April 1967 the bickerings compelled the plaintiff to demand a division of the joint family properties and allotment of his one -third share to him. The plaintiff also refers to a partition in the family to which he was a party but claims that it is unstamped and unregistered document and, therefore, would not bind him. As the first defendant refused to effect any proper division of the properties and give his one third share, though such a demand was made through mediators, he had to file the present action claiming a one third share in the plaint A to D schedule properties. A schedule properties deal with the materials in the photo studio; B Schedule refers to a house in Thiruvarur town, C Schedule deals with the agricultural lands and the D Schedule refers to a deposit of a sum of Rs. 10,000/ - made by the first defendant in the Indian Overseas Bank at Thiruvarur.

(2.) IN the first defendant's write statement he admits that the plaintiff was living with him till April 1967. Thereafter the plaintiff was living separately with his wife. It is denied that the photo studio called Sri Krishna Photo Studio is a joint family business and the properties mentioned in the various schedules to the plaint are joint family properties. Rajagopala Pillai, the grandfather of the plaintiff was a public servant employed as a clerk in the Sub -Registrar's office, in the first instance and later in the railways. Rajagopala Pillai, thereafter started a business in watch and clock repairs and later learnt photography and was carrying on a mere photography business at Nagapattinam and Thiuuthturapoondi and was not even successful. He was adjudicated as an insolvent and the first defendant emphatically denies that there were any ancestral nucleus left by Rajagopala Pillai for the first defendant to exploit the same. The first defendant's independent case is that he was trained by one G. V. Naidu, photographer of Nagapattinam and he became proficient in it. With a paltry sum of Rs. 130/ - given to him by his maternal uncle, he purchased a camera and carried on the profession as a photographer at Thiruvarur. Thereafter he started a photo studio of his own at Thiruvarur and with the funds provided by his paternal aunt, he opened the studio Sri Krishna Photo Studio on 19 -2 -1931. Thereafter he had to borrow some moneys for purchases of cameras and equipment and thus, no funds were provided by his father and no photographic equipment was inherited by him to continue the so - called photographic business of Rajagopala Pillai, the grandfather of the plaintiff. Thereafter, this studio was shifted to a pucca building and with the borrowings made from third parties, and banks, the first defendant continued his own separate studio business as the proprietor thereof. In course of time, he improved business and began to deal with the photographic materials and earning income therefrom. He lent moneys on mortgages and purchased immovable properties mentioned in the schedules and they are his sole and separate properties. The house and the agricultural lands are not joint family properties and the plaintiff has no interest or right by birth in them. The allegation that the plaintiff assisted his grandfather as well as the first defendant in conducting the alleged photographic business started by Rajagopal Pillai in 1917 is denied. The plaintiff if at all was writing some accounts and beyond that no contribution was made by the plaintiff in acquiring the schedule mentioned properties. The bank deposit of Rs. 10,000/ - is denied. The first defendant also refers to some mediation the instance of the respectable persons and the fact that a draft partition deed was drawn up whereunder the first defendant was prepared to give the plaintiff ex gratia sum of Rs. 4,501/ - and five Mas of land so that the plaintiff could live upon it and maintain himself. The first defendant also refers to a release deed which the plaintiff had to execute incorporating the terms agreed upon during the course of mediation. Though the plaintiff signed a copy of such deed and affixed his signature thereto, he wriggled out of the situation and at the instance of his friends, has filed the suit on false allegations. The plaintiff's claim of one third spare in the schedule mentioned properties is denied.

(3.) THE learned Subordinate Judge found on issue 1 after detailed consideration of the oral and documentary evidence that the association of the plaintiff in the business of the first defendant was only out of generosity and kindness and in the course of the conduct of a dutiful son towards his father and that the plaintiff could have assisted the first defendant in the matter of writing accounts etc., only on and after he completed his school in 1956 and there has not been a blending of the properties of the first defendant with the joint family properties if any and that the Sri Krishna Photo studio is not the joint family business of the plaintiff and the first defendants. Consequent upon his finding on issue 1, the learned Subordinate Judge did not agree with the plaintiff's case that the other properties mentioned in the schedules could be treated and considered as joint family properties on the legality and the admissibility of Ex. B. 75, which is the unregistered release deed to which the plaintiff was a party and found that the plaintiff was not speaking the truth and that Ex. B -75 is a true document. But he would not base his conclusion on it fully, as it was an unregistered one. He looked into it for certain purposes and ultimately held that the plaintiff was not entitled to any partition and share of the properties. The plaintiff has come up in appeal.