SUBBU AND CO Vs. MADHAVA SUDARSANAM

JUDGEMENT

(1.) THE 9th defendant in the suit is the appellant in this appeal. Respondents 1 and 2/ plaintiffs filed O.S. No.135 of 1979 on the file of Subordinate Judge, Cuddalore through their mother and next friend, for partition and separate possession of the suit property of the'plaintiffs 2/6th share in the joint family properties and for provisions for the performance of the trust in turns according to their legitimate share over the plaint A schedule properties as per the provisions of the Will and as per the decree in C.S. No.49 of 1938 on the file of the High Court and for accounting of the income and for the allotment of their legitimate share from the defendants 1 and 2 from 16.3.1939.

(2.) THE second defendant Ramasamy Chettiar and the first defendant Venkatesa Chettiar are the sons of Madhava Chettiar. THE respondents 1 and 2 plaintiffs are the sons of the first defendant Venkatesa Chettiar. Madhava Chettiar died on 25.1.1935 and his wife is the third defendant in the suit. Ramasamy Chettiar the plaintiffs'paternal great grandfather owned the properties described in Schedule A and on 3.8.1910 he executed a Will to take effect after his death and thereby constituted several trusts in respect of all his properties mentioned in the schedule constituting his son Krishnasamy and his male issue to carry out the trusts as trustees and to take the surplus income if any, for their maintenance absolutely. THE properties mentioned in Schedule A are the trust properties. In respect of the other family properties, the decree provides that B schedule properties in that plaint were to be taken by the plaintiffs in that suit, namely, defendants 1 and 2 in O.S. No.1135 of 1979. Thus under the said decree, in confirmation of the Will of Ramasamy Chettiar, the plaintiffs in that suit namely, defendants herein had the right to perform the trust and take the surplus income during their turn. THE A schedule properties, in this suit are to be taken absolutely by the plaintiffs in that suit (defendants 1 and 2 herein). As already stated A schedule properties are trust properties to be carried out as provided therein and that the 'B'Schedule properties are joint family properties of defendants 1 and 2 herein and are entitled to share them equally. THErefore, the plaintiffs contended that the properties in Schedule A and B are to be divided into two equal shares one share to be taken by the plaintiffs and the first defendant and another share to be taken by the second defendant. THE plaintiffs in the suit challenged some of the debts incurred by their father which according to them are not real and not valid and binding upon them, besides they are for illegal and immoral purposes. No amount was really due to the defendants and that the defendants are not entitled to proceed against the plaintiffs'share and they are, therefore, restrained by an injunction from proceeding against the suit properties in execution and from executing the decrees permanently in respect of plaintiffs'share until the partition is effected.

(3.) THOUGH the learned Subordinate Judge on the basis of the very same oral evidence has held that the debts incurred by their father for his commercial activity in favour of some of the other defendants are valid and binding on the plaintiffs'share, has curiously enough rejected the claim of the 9th defendant who is the appellant before this Court. Admittedly, in this case, the 9th defendant has advanced monies for the purpose of carrying on business in distribution rights of the Tamil Film 'Anubhavam Puthumai'in pursuance of an agreement dated 15.12.1986 entered into between the 9th defendant and the 1st defendant. There is no dispute that the 1st defendant was given negative rights of the said picture by the producer. There is also no dispute with regard to the agreement entered into between the parties and compromise decree ordered by the court in O.S. No.1083 of 1969 dated 12.11.1970. We are not able to appreciate the findings rendered by the learned Subordinate Judge that the cinema business is. a dangerous commercial activity and such an involvement cannot be said to be for the benefit of the family and for the interest of the family.