KALIAMMAL Vs. S K SUBRAMANIAN

JUDGEMENT

(1.) THIS appeal is focussed as against the judgment and decree dated 1. 7. 1996 passed by the Subordinate Judge, Bhavani in O. S. No. 21 of 1996, which is a suit for partition. For convenience sake the parties are referred to here under as per their letigative status before the trial Court.

(2.) NIGGARD and bereft of details, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: (a) The deceased Karuppagounder and D1-Kaliammal (since died during the pendency of the appeal) gave birth to two sons and three daughters, namely, S. K. Subramanian-the plaintiff, D2-S. K. Ramasamy, D3-Parvathi, D4-Mariammal and D5-Dhanalaxmi. The said Karuppagounder died on 17. 2. 1994 intestate. (b) The agricultural land measuring an extent of 1. 64 acres in Jambai Village of Bhavani Taluk was allotted to the share of the deceased Karuppagounder, in the partition effected between him and his brother and mother. As such, the said agricultural property constituted the ancestral coparcenary property of the co-parcenery, comprised of Karuppagounder and his two sons, namely, the plaintiff and D2 herein. (c) From out of the income derived from it Karuppagounder purchased the house site on 6. 1. 1958, whereupon he raised a house and leased it out to various tenants and earned income. The plaintiff being a lorry driver, earned sufficiently and contributed for the welfare of the joint family and augmented the coparcenary income. (d) Karuppagounder was doing firewood business. On 20. 10. 1999, the plaintiff's father-Karuppagounder purchased the plot area in the suit property, described in the schedule of the plaint, from out of the joint family funds in the name of D1, his wife. The said property was purchased benami in the name of D1, which was intended to confer any benefit to D1. In law, the suit property happened to be the coparcenary property. (e) D1 had no financial ability to purchase any property much less the said plot, over which the joint family had put up superstructure for being used as houses and shops. (f) The ancestral agricultural properties were sold as per sale Deed dated 6. 1. 1958. A portion of such sale proceeds was utilised for putting up additional constructions in the suit property. The plaintiff with his wife and three daughters living separately in a part of the suit property. Whereas D2 with his son and daughter living in another portion of the suit property. The parents of the plaintiff were much attached towards the second defendant's family. (g) D6 to D12 are the tenants occupying various portions in the suit properties and Karuppagounder, during his life time collected rents from them. After his death, within a period of six months, dispute erupted between the plaintiff and defendants 1 to 5 in sharing the rents accruing from part of the suit properties. Hence, the suit for partition claiming 7/18th share in the suit properties.

(3.) REMONSTRATING and denying, gainsaying and disputing the allegations/averments in the plaint, D1 filed the written statement, which was adopted by D3, the gist and kernal of them would run thus:- (i) Karuppagounder and his two sons did not constitute Hindu Co-parcenary family. Karuppagounder during his life time sold the only land belonged to him. The said agricultural land, which Karuppagounder got in the partition was not a Nanja land and no income was derived out of it. Karuppagounder had big family comprised of two sons and three daughters and he could not have saved money. As such, the averments in the plaint as though from out of the joint family income the properties were purchased and constructions were raised are all false. (ii) The plot area of the suit property was purchased by D1 as per Sale Deed dated 20. 10. 1959 from out of her own sources, as she was doing retail business in vegetables and wholesale business in tomatos and derived income. She also sold her 15 sovereign of jewels, which she got from her mother. As such, from out of her own sources she purchased the plot area of the suit property. The constructions were raised on the said plot by D1 from her own funds by raising loans from Bhavani Co-operative House Mortgage Co-operative Bank. (iii) D1's daughters namely D4 and D5 each gifted 10 sovereigns of gold jewels so as to enable D1 to raise funds with that and put up construction over the said plot. D3 had matrimonial dispute with her husband and whereupon she did business in tomato and other vegetables and earned sufficiently and living under the care of D1, by contributing her income to D1. (iv) D1 also incurred debts from 3rd parties for putting up such construction and she discharged them. She also participated in several chit transactions and earned money. D1 permitted the plaintiff to occupy a portion of the suit property out of pity towards him. D1 executed a registered Will on 17. 1. 1994 bequeathing the suit properties in favour of her grant son Dhatchanamoorthy-the son of D2. The superstructure in the suit property stands in the name of D1 only and the water and electricity connections are in her name and she has been paying the house tax also. The tenants in the part of the suit properties were inducted only by D1 herein and she has been collecting rents from them. During the life time of Karuppagounder and D1, the plaintiff tortured and man-handed them demanding money for his nefarious activities. Accordingly D1 prayed for dismissal of the suit.