A. THAMBIRAN NAICKER Vs. A. SAMBASIVAM AND ORS.

JUDGEMENT

(1.) First defendant in O.S.No. 1985 of 1977 on the file of First Assistant Judge, City Civil Court, Madras is the appellant. First respondent/plaintiff in the said suit filed the same for partition and separate possession of his l/4th share in the suit properties. The court below passed a preliminary decree for partition and separate possession of 5/16th share in the property mentioned in Ex.B -4 and l/3rd share of other properties in favour of the plaintiffs and 2nd defendant. Aggrieved by the said decree, the first defendant has filed the present appeal.

(2.) The case of the plaintiff is briefly stated hereunder: The plaintiff and 2nd defendant are the sons of deceased Arumuga Naicker through his second wife, namely, the third defendant. The first defendant is the son of the said Arumuga Naicker through his deceased first wife. The above said Arumuga Naicker married the third defendant in the year 1938 after demise of his first wife in 1935. The father of the plaintiff died intestate in the year 1943 leaving his 3 sons and his widow. After the demise of the said Arumugha Naicker in 1943, the first defendant being his eldest son was incharge of the intestate estate namely Nanja lands of 28 cents in R.S.No. 295/2 and 32 cents in R.S.No. 295/3 and Punja lands of 74 cents in R.S.No. 152/3 and 88 cents in R.S.No. 1/7 of Kolathur Village, Sriperumpudur Taluk, Chingleput district. It is further contended that in the year 1950, the first defendant along with the plaintiff and the other defendants came to Madras and started milk vending business with the help of jewels and cash and agricultural income belonging to the family. Till 1950, all the family members were living together at Kolathur Village. The first defendant was not having and independent means of his own. With the nucleus left by the father, a small milk business was started in Madras in 1950 by vending milk. Later on in the year 1954, two heads of cattle and in 1955, four heads of cattle and in 1955, another two heads of cattle and in 1957 another two heads of cattle were purchased. The milk business was in progress. The milk business gradually developed and became profitable. In 1969, there were as many as 30 heads of cattle both cows and buffaloes. With the profits and earning from the milk business, a taxi MSX.3152 was purchased by the first defendant in his name in 1957 and another tax MSX.8283 was purchased and in 1960 another taxi MSX.8174 was purchased. In the year 1965, one taxi was purchased by the first defendant in the name of his wife. In the year 1963, he purchased a taxi MSX.8345 in the name of the second defendant and a taxi was purchased in the name of a friend of first defendant by name P. Selvaraj. In 1957, another taxi was purchased by the first defendant in the name of the plaintiff. Four other taxis were purchased from out of the earnings of the milk business. Though the abovesaid taxis were under on hire purchase, the instalments were completely paid from the income from the milk business and from the taxis. When the taxi business became lucrative, the heads of cattle were sold closing the milk business. Though the taxis were standing in the name of the different persons, the first defendant enjoyed the entire income from the taxi business. The plaintiff was not given any share in the income from the taxi business or from the milk business. Subsequently, the first defendant performed the marriage of the plaintiff and the second defendant in the year 1967. Till then, they were all together with a common mess at Door No. 21, Mulla Shaib Street, Madras. After the marriage, the plaintiff and the second defendant are living in two rooms each. The plaintiff and the defendants are in joint possession of the suit properties. The first defendant purchased the house in 21, Mulla Shaib Street in his name by a sale deed dated 1.9.1955 from out of the earnings of the milk and taxi business started from the nucleus left by the father. The first defendant is collecting rent from the house appropriating the same for himself without giving any share to the plaintiff or to the other defendants. The first defendant purchased lands in Kolathur Village to an extent of 7 acres and 23 cents from the joint family nucleus left by the father. He also purchased lands in Vilambakkam village to an extent of 2 acres and 90 cents from the joint family nucleus. The first defendant has been promising to effect partition so far, but with ulterior motive, he has been evading to do so in spite of notice dated 10.5.1976 which necessitated the plaintiff to file the present suit.

(3.) Third defendant did not contest the suit and remained ex parte.