GURUSAMY NAICKER Vs. G JAYARAMAN

JUDGEMENT

(1.) Defendants 1 to 7, 11 and 12 are the appellants in this first appeal against the preliminary decree for partition of the plaintiff 1st respondent's 1/10th share in the plaint scheduled properties (as against the plaintiff's claim for 1/9th share thereof). The Court below has also directed that the family debts has to be discharged out of the said properties and that the 1st defendant has to account for the profits from the said properties from 8-12-1981, the date of the suit notice.

(2.) There is no dispute regarding the following relationship between the parties: The 1st defendant is the father. He has two wives, the 1st wife being 9th defendant and the 2nd wife being 10th defendant. Both the wives are sisters, Through 9th defendant, the 1st defendant has six sons, the plaintiff, defendants 2 to 6, and 2 daughters, defendants 1 and 12. Through 10th defendant, the 1st defendant has two sons, viz., defendants 7 and 8 and one daughter, viz., 13th defendant. Thus, on the whole the 1st defendant has eight sons and three daughters. The suit properties are described in plaint A to F schedules. But, of these, D to F schedule properties are movable properties and there was no separate argument by either side regarding the same. A to C schedule properties are immovable properties. Defendants 8 to 10 and 13 are respondents 2 to 5 respectively in this appeal.

(3.) In the light of the argument, advanced before us, the material plaint allegations are briefly as follows: The Plaintiff and defendants 1 to 8 are coparceners of the undivided Hindu joint family and the 1st defendant is the Kartha thereof. The suit properties are joint family properties. 22 acres of land comprised in S. Nos. 807/1, 807/2,808/1,and 808/2 with large irrigation wells (A schedule Items 1 to 3) and palacial houses describe as Items 5 and 6 in A schedule are the ancestral joint family properties and the 1st defendant, as kartha, has been managing them. They are, very fertile and income yielding properties. The 1st defendant has been realising enormous income therefrom. For the purpose of avoiding tax laws and Land Reforms Act, the subsequent acquisitions were made in the names of plaintiff and defendants 1,2 and 9, though the acquisitions were made from out of the income derived from the joint family properties and from out of the exertion of the members of the said family. Apart from the income from the joint family properties, none of the members of the family had any independent sources of income. The 9th defendant hails from a very poor family. She did not bring any jewels or money as stridhana. B schedule properties were purchased in the name of the 2nd defendant. The properties purchased in the name of 9th defendant are set out in C schedule. Band C schedule properties were treated only as joint family properties. The family of the plaintiff and defendants is a rich agricultural family in the, locality. Except the loan amounts borrowed from the Co-operative Society, the family does not owe any amounts. The plain- tiff is the eldest son and he studied upto 9th standard. The plaintiff contributed his labour for the agricultural operations of the family properties. In the year 1980 misunderstanding arose between the plaintiff and the 1st defendant and due to hostile treatment of the 1st defendant, the plaintiff was driven to the necessity of living in another village with his wife and children. Even thereafter, the 1st defendant was giving troubles to the plaintiff. The 1st defendant flatly refused to effect partition of the family porperties. Forest alling the plaintiff's legal action, the 1st defendant brought about a frauduelant document, purporting to be a deed of family partition. The unilateral partition alleged to have been effected under the said document is thoroughly unfair and unjust and the said document is void for the following reasons:- The said document has left out valuable movable and immovable properties and the family including the above said palacial houses belonging to the family. Therefore, the alleged partition is void on the ground of partial partition. Some of the properties in Schedule A have not only value as agricultural lands, but also as potential house sites. S. Nos. 807/1, 807/2, 808/1, and 808/2A are cultivated as single unit. Though there are number of wells in the lands belonging to the family, the wells in Serial No. 790,808/1, and 808/2, alone have sufficient supply of water. The wells in Serial No.807/l, and another well in S. No. 808/1 have no water and they are not in use and they are abandoned wells. The lands comprised in S. No. 807/1 is irrigated only with the water in the well situated in. S. No. 790 and not in Serial No. 808/1 and for that purpose necessary underground pipelines have been laid. While so, the 1st defendant has purported to allot 3.52 acres of lands in S. No. 807/1 with "well right" in the above said abandoned well. The plaintiff is not allotted any right in the well situated in S. Nos. 790, 801/ 1 and 808/2. This sort of division will render the lands allotted to the plaintiff only as ordinary dry lands, whereas the other lands are irrigated garden lands. The value of the lands with irrigation facilities is at least four times than the value of the lands without irrigation facilities. On the east and north of the land in Serial No. 808/ 2A, very many residential and non residential building have sprung up. So, the lands adjacent to the buildings have very high market value, whereas the lands allotted to the plaintiff have no potential value as building site in the near future. The 1st defendant had made it impossible for the plaintiff to live in the family house. In the above said alleged partition no provision has been made for joint family debt borrowed in the name of the plaintiff to the extent of Rs.3,915/- under three loans from Sengamalanachairpuram Agriculral Service Co-operative Society. The said loans were utilised for the joint family. As on 13-5-1982, the said principle amount of Rs. 3,915/- and interest thereon to the extent of Rs. 3,749/- are due on the said three loans. The 1st defendant has fabricated the above said partition deed. But the same was not given effect to and acted upon. There is no actual division by metes and bounds and there is no separate enjoyment. To defraud the plaintiff, the 1st defendant has fraudulently brought about a gift deed dated 29-4-1981 in favour of the defendants 11 to 13 in respect of B schedule properties. The 2nd defendant, who is a puppet in the hands of the 1st defendant has also been made a party to the said gift deed, which is only sham and nominal and brought about fraudulently, solely to give a colour of reality to the above said fraudulent partition deed. The properties covered under the said gift deed are also joint family properties and hence the said gift is void. An extent of 1.67 acres is S. No. 801/1 and 3.01 acres in S.N o. 808/ 2A and 3.32 acres in Serial No. 807/1 were purchased in the name of the plaintiff with joint family funds. At the time of the marriage alliance of the plaintiff, the 1st defendant agreed to allot the said properties to the plaintiff. Though the plaintiff is in equity entitled to ask for allotment of the said properties to his share, he is not insisting for such allotment and he is willing for equitable division of his share in the joint family properties. The 1st defendant is realising the entire income from the properties. Though he is liable to account for the said income from the year 1980, the plaintiff is restricting his claim for accounting from 8-12-1981, the date of issue of legal notice. The average annual income from the joint family properties will be far less than Rs. 1,50,000/-.The plaintiff came to know of the above said alleged partition deed dated 24-11-1980, on 27-10-1981. Likewise, he came to know of the abovesaid gift deed dated 29-4-1981 on 26-11-1981. The plaintiff prayed for 19th share in the suit properties.