LAWS(MAD)-1977-2-19

KUMARASWAMI GOUNDER Vs. SUBBA GOUNDER

Decided On February 07, 1977
KUMARASWAMI GOUNDER Appellant
V/S
SUBBA GOUNDER Respondents

JUDGEMENT

(1.) DEFENDANTS 2 to 4 and 6 to 9 in O. S. No. 17 of 1965 on the file of the subordinate Judge of Coimbatore, are the appellants. The plaintiffs came to court for a partition and separate possession of their half share in the suit properties under the following circumstances. Kandaswami Gounder is the common ancestor. He had two sons, Nanjappa Gounder, the first defendant and palani Gounder, the first plaintiff. His other son Subba Gounder died as a bachelor in 1959. Palaniammal is his daughter. The first defendant, who is the eldest son who died pending suit is herein represented by his legal representatives, defendants 2 to 10. In fact, it is the second defendant who is contesting the action. Plaintiffs 2, 3 and 4 are the sons and daughters of the first plaintiff. The fifth plaintiff is the wife of the first plaintiff and the 4th plaintiff is the wife of the 1st defendant. The plaintiffs' case is that Kandaswami gounder died in Adi 1955, prior to the Hindu Succession Act of 1956 and that, therefore, Palaniammal, the daughter of Kandaswami Gounder cannot be reckoned as a sharer to the estate of Kandaswami Gounder. The plaintiff's contention is that after the death of Kandaswami Gounder in 1955, the only person, entitled to share the estate of late Kandaswami Gounder was the 1st plaintiff and his branch, Nanjappa Gounder and his branch and Subba Gounder. Subba Gounder died in 1959. Prior to his death, it is the case of the plaintiffs, that the family properties which were situate in two different village were being enjoyed by the sons of late Kandaswami Gounder independently for the purpose of convenience and pursuant to the said arrangement, the 1st plaintiff, was in charge of lands situate in Thalakarai village and the other lands situate in ramapatnam were in the possession and convenient enjoyment of the father kandaswami Gounder when he was alive and Nanjappa Gounder and Subba gounder. Such convenient enjoyment of those properties having been acceeded to and worked upon by the parties out of their own will and volition, continued till the death of Kandaswami Gounder in 1955, and Subba Gounder in 1959. On the death of Subba Gounder the specific case of the first plaintiff is that there was a re-adjustment about the lands and their enjoyment by each of the surviving members of the family. As a result of such re-allocation, if that expression could be used, the first plaintiff was also entrusted with certain areas of lands in Ramapatnam village besides the lands in Thalakarai, but the first defendant continued to be in charge of the lands in Ramapatnam village. Apparently this recasting of the extent of the lands in the possession of the two surviving brothers was made consequent upon the death of Subba Gounder who was by then a third sharer in the family. In this context, therefore, the plaintiffs' case is that the 1st plaintiff and his branch would be entitled to one-half of the estate of late Kandaswami Gounder and to the other half the 1st defendant and his branch would be entitled. It is to secure independent and separate possession of such a half share, the plaintiffs came to court. The 1st defendant's case is that Kandaswami Gounder died on 2-8-1956 and not in 1955 and that the date of death was after the induction of the Hindu Succession act of 1956 and, that therefore, Palaniammal, his sister as a daughter of kandaswami Gounder would also be a statutory heir under the Act and that her share should be allotted to her. The 1st defendant's further case is that the plaintiffs have failed to include in the partible estate, a house which was constructed by the 1st plaintiff in the lands (at) Thalakarai which were in his enjoyment and as such a construction was only possible because the 1st plaintiff and his branch were solely enjoying the income from the lands in their convenient enjoyment and as no partition by metes and bounds of the family properties ever took place, it should be presumed that the said property built by the first plaintiff should be deemed to be an assertion to joint family property and that it should be brought to the hotch-pot for partition. Incidentally, he would also concede that he would be responsible for bringing into the pot for purposes of division such of the income which in law he is accountable for to the other members of the family in respect of the lands which he was conveniently enjoying as per this internal scheme of arrangement already referred to. The 1st plaintiff however, in reply would say that the house was built up several years ago and in particular, was put up by him prior to the modified arrangement internally made as between them on the death of Subba gounder which resulted in the plaintiff branch being entrusted with certain lands in Ramapatnam village also for their convenient enjoyment along with the lands already held by them in Thalakarai village. In effect, the first plaintiff's case was that the house was put up by him when he was in enjoyment of the thalakarai lands which scheme was in vogue even during the lifetime of his father and which arrangement was thought of solely for the purpose of convenient enjoyment of the family lands as between the members. Therefore, the plaintiff to resist the claim of the first defendant to bring the house property referred to in the written statement of the 1st defendant as one of the partible properties to be included in the hotch-pot for the purpose of division. We are not summarising the pleading in the usual manner as it is unnecessary to do so having regard to the two main issues which were argued before us by the learned counsel in this appeal. On the pleadings, the following issues were framed by the learned Judge 1. Whether the prior partition pleaded by the defendant is true? 2. To what share, if any, is the plaintiff entitled? 3. What are the properties available for partition? 4. Whether the suit is bad for non-joinder of necessary parties? 5. Whether the defendant is entitled to value of improvements and if so, to what amount? 6. To what relief? the following additional issue was framed on 9-8-1966:-1. Whether the sale deed dated 15-9-1965 is true and valid and whether the 2nd defendant is entitled to any share under the document? the following additional issues were framed on 28-10-1969-2. Whether the plaintiffs are entitled to partition? 3. What is the date of death of the father Kandaswami? the following additional issue was framed on 24-11-1969--4. Whether the suit is bad for partial partition?

(2.) THE lower court was of the view that Kandaswami Gounder died in Adi 1955 and not in August 1956, as alleged by the first defendant and therefore, negatived the defendants' plea that Palaniammal also should be considered as a sharer in the estate of Kandaswami Gounder. On the other issue whether the property claimed by the 1st defendant is the property of the family, he agreed with the plaintiffs that the same would not be joint family property as according to him, the income which a member obtained from the properties held by him and possessed by him, though for convenient enjoyment, would be his separate property and cannot be treated as joint family property in which the other shares would have an identifiable share. Therefore, he found that the only items available for partition are the plaint schedule properties and disagreed with the 1st defendant that the suit is one for partial partition. He decreed the suit on the above findings. We are not called upon in this appeal to decide whether there was a prior partition as pleaded by the defendants or whether certain other allegation regarding the sale of certain family properties is true or not. We have already prefaced by saying that the two points that are raised by the learned counsel appearing before us are-- (1) whether the house property claimed by the 1st defendant and latterly by his heirs, the appellants before us, is to be treated as joint family property or not and (2) what is the date on which Kandaswami Gounder died?

(3.) WE shall now take up the first question whether, in the circumstances of this case, the property claimed by the defendants-appellants is to be included in the hotch-pot for the purpose of division amongst the sharers. This would depend upon the fact whether the nucleus with which the property was put up by the first plaintiff was joint family asset or joint property. It is not in dispute that the properties were under the convenient and separate enjoyment of the members of the family and that such an arrangement was acceded to and followed up even when the father, the ancestor, was alive. P. W. 1 in his evidence would say that the house property was put up by the 1st plaintiff about 15 to 20 years ago. This not having been contradicted, would mean that the property was put up prior to the date of death of Subba Gounder. The family conceived of a scheme whereby the lands which were situate in two different villages could conveniently be enjoyed by two different sets of members without any interruption by one branch over the other. It is common ground that kandaswami Gounder, Nanjappa Gounder and Subba Gounder as one unit were in Ramapatnam village and were in charge of the lands situated therein. Equally it is not in dispute that Palani Gounder was put in charge of the other lands of the family but situate in Thalakarai village. It is, therefore, clear that the enjoyment of each of the units as above was pursuant to a domestic scheme conceived by the father in co-ordination with his sons and it cannot be said that it was pursuant to any overt act well thought of by the members resulting in an allotment of those properties to the above units with the intention that each of such units should enjoy the income therefrom absolutely. If in a given case there was some evidence of treatment of the joint family properties by the members of the coparcenary or joint family in and by which the allotment of properties was thought of and as a result of such scheme forged by the members, one or the other of the members of the family, either individually or conjointly was put in possession of identified and identifiable properties belonging to the family, then it is quite possible to imply or presume that the members as a whole in a family council decided amongst themselves that such an allotment is not an empty one but is with a purpose. It would serve as a pointer to the conclusion that the income derived by each of such members or units of the family put in possession of such separated properties should enjoy the income as if it is their own without any responsibility to account therefore to the other members or other units of the family.