V. DEVARAJ Vs. JAYALAKHMI AMMAL (DECSD.) AND ORS.

JUDGEMENT

(1.) THE plaintiff is the first son while the second defendant is the second son of one M. Venkatesam Chettiar, who died on 17th June, 1965. The said Venkatesam Chettiar, in 1937 or 1940, started a business under the name and style of Doraikannu and Company with a small capital coming out of his own earnings. Out of the income from the said business, the said Venkatesam Chettiar, purchased a large number of items of properties. The plaintiff herein instituted C.S. No. 399 of 1954, on the file of this Court impleading his father as 1st defendant, the 2nd defendant herein as the 2nd defendant and the 1st defendant herein (mother of the plaintiff and the 2nd defendant) as the 3rd defendant, for partition of certain properties. In that suit, he prayed that an account may be taken of what the joint properties of the said family were, that an account may be taken of the profits of the business referred to above and also prayed for partition of his one -third share in the said properties. In that suit the deceased Venkatesam Chettiar, contended that the business was his own business and the properties acquired out of the income from the said business constituted his self -acquisitions and therefore the plaintiff herein was not entitled to claim partition of the said properties and allotment of one -third share to him. The second defendant and the third defendant in the said suit, namely, the 2nd and the 1st defendants herein adopted the written statement of the deceased Venkatesam Chettiar. The said suit was transferred to and disposed of by the City Civil Court, Madras, as O.S. No. 1669 of 1965 on 17th May, 1956. The learned Additional Judge of the City Civil Court, Madras, accepted the case of the deceased Venkatesam Chettiar, that the business and the properties acquired out of the income from the business were the self -acquisitions of Venkatesam Chettiar and therefore the plaintiff herein had no right to claim partition of the said properties and dismissed the suit. Against this judgment of the City Civil Court the plaintiff herein preferred C.C.C.A No. 12 of 1957 and the Bench of this Court by its judgment and decree dated 9th September, 1960, allowed the appeal in part. The learned Judges disposing of the appeal found that the deceased Venkatesam Chettiar, did not inherit any ancestral property and that there was no nucleus of joint family property, the business of Doraikannu and Company was started by the deceased Venkatesam Chettiar as his own with a small capital coming out of his own earnings and the said business and the properties purchased out of the income from the said business were acquired without any detriment to any ancestral nucleus. However, the learned Judges on an appreciation of the evidence and on considering the law on the question came to the conclusion that the father, namely, the deceased Venkatesam Ghettiar, intended to deprive the business of its separate character and convert it into a joint family business. The learned Judges concluded:

(2.) IT is now necessary to refer to the significance of the above -mentioned two dates. The Judges found that the plaintiff's participation in the business arose only on 1st January, 1948, and therefore the conversion of the self -acquisition as the joint family property was only with effect from that date. So also when at the end of 1953 the plaintiff gave notice to his father demanding a partition, the joint status between the plaintiff and his father came to an end with that notice. It is only with reference to these features, the learned judges provided in their judgment that the plaintiff was entitled to an one -third share in the properties acquired between these two dates and in the profits from the business referable to the period from 1st January, 1948 to 31st December, 1953. Pursuant to this preliminary decree, a final decree was passed by the City Civil Court, Madras in C.M.P. No. 98 of 1960 on 20th August, 1962. Under this decree, item 6 of plaint "A" Schedule in that suit was allotted to the plaintiff herein for his one -third share in the profits of the business and the plaintiff herein was directed to pay the defendants 1 and 2 therein, namely, the deceased Venkatesam Chettiar and the present second defendant a sum of Rs. 203.95 to equalise the value of the shares.

(3.) IN that suit, defendants 1 and 2 filed separate written statements contending that the rights of the plaintiff, if any, in the joint family properties were settled as a result of the decree in the C.C.C.A. No. 12 of 1957 and thereafter the plaintiff has no claim whatever to the properties belonging to the family consisting of the deceased Venkatesam Ghettiar and the 2nd defendant and all the properties acquired subsequent to 1st January, 1954, were acquired by the deceased Venkatesam Chettiar with the help and assistance and joint efforts of the 2nd defendant. The 1st defendant also filed an additional written statement contending that items 1, 5, 6 and n of plaint 'A' Schedule absolutely belonged to her and therefore the plaintiff herein cannot claim any interest or share therein.