Madras High Court
M. Shanmugha Udayar vs Sivanandam And Ors. on 18 March, 1993
Equivalent citations: (1993)2MLJ617, AIR 1994 MADRAS 123, (1993) 2 MAD LJ 617, (1994) 2 CIVILCOURTC 112, (1994) 2 LJR 314, (1993) 2 MAD LW 72
JUDGMENT Thangamani, J.
1. The appellant is the first defendant in the suit. He was aged about 79 when the suit case to be instituted. He is a public man and a leading personality in Villupuram Town. He was an M.L.A. for there terms. He was Municipal Councillor continuously for half a century from 1926 to 1976. He was also Chairman of Villupuram Municipality on three occasions. He was a Director of the Co-operative Sugar Factory, Mundiyambakkam. Besides, he was the Chairman of Local Building Society. His first wife Alagi died in 1930. Then he married one Thaiyanayagi as his second wife. She also passed away in 1957; Plaintiff and defendants 2 to 7 are his sons and 8th defendant is his daughter through Thaiyanayagi. The present first respondent/plaintiff instituted O.S. No. 63 of 1982 on the file of learned Subordinate Judge of Villupuram claiming partition and separate possession of his 1/8 share in the plaint Schedule mentioned items and for his share of the income from the said properties from the date of plaint till date of possession.
2. The allegations in the plaint are that on 11.7.1932 there was division of the family properties between the appellant and his brothers under the original of Ex.A-1 partition deed. Plaint items 1 to 25 came to his share in the said partition. Items 26 to 41 of Schedule I were purchased by the appellant from the year 1923 to 1926. They were not included in Ex.A-1 partition deed and retained by the appellant for the benefit of the family comprising of himself and his sons. Items 42 to 76 of Schedule I were purchased in the name of the appellant from out of the income of ancestral properties when he was the manager of the joint family. The acquisitions were also out of joint exertions of all the members of the joint family. They were thrown into the hotch-pot and dealt with as joint family properties throughout. Items 77 to 92 were purchased under the sale deeds Ex.A-10 dated 20.1.1941 and Ex.A-15 dated 24.6.1948 by the appellant with joint family funds and treated as joint family properties by the appellant. Besides, the family owns cash and fixed deposits in several banks, jewels worth 150 sovereigns and other movables described in plaint Schedule II. The 9th defendant is not the legally wedded wife of the appellant. Her daughter impleaded as 10th defendant during this appeal is not born to the appellant. Inspite of the demand made by him on 1.3.1981 and thereafter, the appellant is not amenable for division. Provision for the marriage expenses of his sister 8th defendant has to be made in the partition.
3. Defendants 2 to 6 more or less sailed with their brother plaintiff except that the second defendant pleaded that item. 52 of plaint 'A' Schedule was purchased by him with his savings from his income as Village Munsif. The third defendant claimed that he is decently employed at Neyveli and he has purchased items 70 and 71 from his professional income. According to the fourth defendant items 72 and 73 were acquired from the wherewithal provided by his father-in-law. The fifth defendant alleged that sub-items 5, 6, 7 and 8 in item 11 tractor and its accessories are his self-acquisitions. However, the sixth defendant maintained that all the items are joint family properties including those to which defendants 2,3,4 and 5 laid separate claim. Defendants 7 and 8 chose to remain ex pane during trial. The counsel for the 9th defendant reported no instructions after filing of the written statement by her.
4. The appellant resisted the action contending that he lost his father when he was 16 years old. His grand father, grand mother and mother also died one after another. He had to meet all the expenses in connection with their death. Even then the family owed a debt of Rs. 1,200. He had to bring up his three brothers and two sisters. He educated his sons and daughters. The third defendant is a M.S. Geologist while the 8th defendant daughter is a doctor. There was no surplus to constitute nucleus. The appellant took on lease 25 acres in the village of Kakupparm, 19 acres in Erumanthangal, 16 acres in Maharajapuram and 12 acres in Kilpe-rumbakkam cultivated therein sugarcane crops. He also did building contract work for police department and road contract for Highways Department. He was also a railway contractor. As per the terms of Ex.A-1 partition deed the mother of the appellant was in enjoyment of items 9 to 11 as a life estate holder and on her death in or about 1971 all her sons took them absolutely. So plaintiff cannot claim any share in them. Under Ex.A-1 the appellant got only items 1 to 8, 12 to 25 for his share. These properties have no irrigation facility and they are mainly dependent upon lake water that is available hardly for a month. Items 20 and 21 are not cultivable lands and there are only palmyrah trees in them. Item 22 called 'Kosavan Kollai' was brought under cultivation about 7 or 8 years prior to the suit. Till then potters were excavating earth from there for their professional work. Item 25 is not a cultivable land. Items 37,47, 48 and 51 do not belong to the family. An extent of 10 cents in item 31, items 32 to 36,11 cents i.e. 34/1B in item 39 and item 42 belong to one Sivabushanam. Item 38 belonged to his wife Thaiyanayagi who died about 10 years prior to the suit and the appellant got it from her and so it is his separate property. The extent of item 27 is only 6 cents and not 69 cents as described in the plaint. Item 29 is a repetition of item No. 17. Item 65 is a repetition of item 56. Item 79 is a repetition of item No. 6 Item No. 88 is a repetition of item No. 13. Item 89 is a repetition of item No. 52. Item 80 is a repetition of item No. 50. Item 39 is a repetition of item 16. Items 82 and 83 were given away in exchange of items 90 to 92.
5. He also pleaded along with the 9th defendant that she is his legally wedded wife. He married her in 1969. The 10th defendant is his legitimate daughter. There were no cash or outstandings or jewels to the tune of 150 sovereigns as alleged. The car, tractor trailer, cultivator disc and motor are his separate properties. There are debts to the tune of about Rs. 4,00,000.
6. During trial the plaintiff did not press his claim in respect of items 26,27,30 to 38, 40, 42,43, 65, 79, 80, 88 and 89. Learned Subordinate Judge found that all other items are joint family proper-tics available for division among the father and sons. He also held that jewels noted by the Commissioner in his report Ex.C-1, debt due from one Jothilingam which is item 9 of Schedule II, and sub-items 1 to 9 in item 11 in Schedule II are also joint family properties and that there was no joint family debt to be discharged by the members of the family. The 9th defendant is not the legally wedded wife of the appellant and her daughter Tamilarasi is not a necessary party to the action. Accordingly the preliminary decree was passed declaring that plaintiff and defendants 2 to 6 (evidently 6 is a mistake for 7) are each entitled to 1/8 share in items 1 to 25,28,29,39,41,44 to 64,66 to 78,81 to 87 and 90 to 92 in plaint 'A' Schedule and in the amounts which were available on the date of suit in items 1 to 7 and items 8 to 11 in Schedule II and that in the final decree proceedings if any movables are to be found out, those items also would be taken into consideration. The appellant was directed to pay the costs of the suit to the plaintiff including the stamp duty and penalty paid by the plaintiff on Exs.A-21 to 24. The other parties were directed to bear their respective costs. Account on income was to be determined in separate proceedings under Order 20, Rule 18, C.P.C. The actual partition and separate possession, were relegated to final decree proceedings. Aggrieved by the said decision the first defendant has come forward with this appeal.
7. In C.M.P. No. 10101 of 1992 the 5th defendant was permitted to file cross objection regarding sub items 5 to Sin item 11 of Schedule II after condoning the delay. Others have not filed any cross objections.
8. In C.M.P. No. 15096 of 1992 the appellant seeks to file six documents detailed in the annexure therein as additional evidence. He states in his affidavit that he is an aged person and all his sons have aligned against him in this litigation and he has no one to support in conducting the proceedings before the court below as well as in the present appeal. Due to advanced age his mobility is restricted and so he could not produce the required documents well in time. He was bed ridden immediately before the trial of the suit and could not recollect many of the incidents and material documents in time. The first respondent/plaintiff alone resisted this application stating that there is no sufficient cause for the non-production of the documents at the time of trial. Order 41, Rule 27(b) enables the party to produce additional evidence in the appellate court if he establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed. Even the plaint filed in the year 1981 gives the age of the appellant as 79. There is substance in the contention of the appellant that in 1983 during trial he could not produce these six documents inspite of his due diligence since he was waging a lonely legal battle against all his sons and daughter who are eight in number in his advanced age.
9. The first two documents are registration copies of a sale deed dated 20.8.1943 and an exchange deed dated 6.9.1956. While the sale deed relates to suit item No. 38, the appellant is one of the parties to the exchange deed which covers suit items 82,83 and 90. So the relevancy and admissibility of these documents could not be disputed. The other documents are four letters purported to have been written by the plaintiff to the appellant during 1972 and 1980. The plaintiff in his counter-affidavit simply states that these documents are not necessary or relevant for deciding the issues in the appeal and he does not admit them. However, he does not dispute the genuineness of these letters in the counter. Only during arguments he made a faint attempt to dispute their authenticity. But we compared the signatures and writings therein with those found in Exs.B-1 and B-2 letters written by him and are satisfied that the letters sought to be filed as additional evidence are genuine. So we allow this application, receive them as additional evidence and mark as Exs.B-40 to B-45.
10. The daughter of 9th defendant Lalitha has filed C.M.P. No. 10100 of 1992 to implead her as the 10th defendant in the suit. Plaintiff, defendants 2,3,4 and 6 alone have filed counter affidavit in his application denying that the 10th defendant is the daughter of the appellant. They pleaded this as per the findings of the trial court there was no valid marriage between the appellant and 9th defendant and that the daughter of the 9th defendant is not a necessary party in the suit. Since the 9th defendant has not filed any cross objections, that finding of the trial court has become conclusive and hence this application is not maintainable. But the appellant who is the father has raised the question that the 9th defendant is legally wedded wife and the 10th defendant is born to him. Thus the status of the 10th defendant is an issue in the case. So we are of the view that in this partition action the 10th defendant is a necessary party and accordingly this application is allowed. She ought to have been impleaded in the trial court itself.
11. In C.M.P. No. 12682 of 1987 under Order 6, Rule 17, C.P.C., the plaintiff seeks amendment of the plaint so as to include the compensation amount deposited in L.A.O.P. No. 4 of 1982 of Sub Court, Villupuram as item 12 in Schedule II of the plaint. He alleges that this sum represents the compensation...for the acquisition of the family land of an extent of 74 cents in S.F. No. 6/2 of Maharajapuram village and is entitled to 1/8 share in this amount also. By oversight this was omitted to be included initially. It does not appear that any counter has been filed by the appellant in this application. So the proposed amendment is allowed and the said amount of compensation will be item 12 in Schedule II of the plaint.
12. Learned Counsel for the appellant assailed the findings of the trial court on various grounds. He first submitted that there are still properties not belonging to the family covered by he preliminary decree. Items 82 and 83 of plaint Schedule are S. No. 99/1 A and S. No. 99/1B/1 each measuring 14 cents. The appellant has taken the plea in his additional written statement that these items were given away in exchange and suit items 90 to 92 were obtained. The trial court has rejected this plea on the ground that there is no record to substantiate this contention. However, we find from the Deed of Exchange dated 6.9.1956 entered into between the appellant on the one hand and one Kandasamy Udayar and Arunachala Udayar on the other marked as Ex.B-41 in this appeal, that S. No. 99/1B and S. No. 99/1A were parted away by the appellant and he got in exchange for them...S. No. 73/1A of Kilperumbakkam village which corresponds to suit item No. 90. So items 82 and 83 are not available for division.
13. Learned Counsel for the appellant next points out that items 47, 48 and 51 have already been parted away under Exs.A-28 and A-29 and hence they are no longer in the family to be divided among the father and sons. The trial court had negatived this plea of the appellant for the reason that he has not produced any document to show that these items do not be long to the family. Ex. A-9 is the registration copy of the sale deed dated 7.1.1941 under which items 47 and 48 which are S. No. 85/10A and S. No. 73/16A of Maharajapuram village were purchased by the appellant Ex. A-17 is the registration copy of the sale deed dated 4.5.1950 in favour of the appellant in respect of S. No. 183/5C of Marudur village which corresponds to suit item No. 51. Ex.A-28 the registration copy of the sale dated 7.11.1979 discloses that suit items 47 and 48 were sold away by the appellant to one Panduranga Udayar. Similarly as per Ex. A-29 suit item No. 51 was sold by the appellant in favour of one Kalyani Ammal on 6.5.1978. So these three items also cannot be covered by the preliminary decree and they have to be deleted.
14. The preliminary decree takes in suit items 9 to 11 which are 98 cents in S. No. 94/3, 25 cents, in S. No. 94/2 and 19 cents in S. No. 117/2 of Kilperumbakkam village. Learned Counsel for the appellant submitted that these lands were allotted to the mother of the appellant for her life in the partition which took place among the appellant and his brothers as per Ex.A-1 dated 11.7.1932. The partition deed provided that the appellant and his brothers are to take the same in equal shares absolutely on her death. The relevant recitals in Ex.A-1 are as under:
Further when the brothers divide their family properties after the demise of their father and certain properties are set apart for the mother in which she is given right to enjoy the income by paying kist and the corpus is to be taken by the brothers on her death, it is only a life estate given to her in recognition of her pre-existing right for maintenance. Though there is no specific recital in Ex.A-1 partition deed that the properties are allowed for the purpose of maintenance, the intention is obvious. So, there is no force in the contention of learned Counsel for the plaintiff that the mother was only given right to enjoy the income from these items and there was no limited estate created in her favour which become enlarged under Section 14(1) of the Hindu Succession Act.
15. Section 14(1) of the Hindu Succession Act reads that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. And as per Sub-section (2), nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order of award prescribe a restricted estate in such property. The Supreme Court has given "a most expansive interpretation" to the general rule enacted in Sub-section (1) of Section 14. In order to invoke the application of Sub-section (2) it is necessary to satisfy the essential condition that the instrument which limits or restricts the estate should itself be...the source or foundation of the female's title to the property. If she had an existing interest in the property, the inter position of any instrument will not affect the operation of Sub-section (1). The instrument may be a deed of partition suit if the pre-existing right was there, Sub-section (2) cannot have the effect of taking the property out of the coverage of Sub-section (1). In any such case the mere fact that the instrument provides that the female Hindu is to have a limited estate or there is a restriction on her power of alienation or that the property will on her death revert to the next reversioner will not take the case out of the purview of Sub-section (1). Such terms are merely reiteration of the incidents of Hindu Law applicable to limited estate. When specific property is allowed to a widow in lieu of her claim for maintenance under an instrument which prescribe restricted estate, the acquisition of property by her is only by virtue of a pre-existing right. Such an acquisition would not be within the ambit of Sub-section (2) even if the instrument allotting the property prescribes a restricted estate in the property. Sub-section (2) must be read only as a proviso or exception to Sub-section (1) of Section 14 and its operation must be confined to cases where property is acquired for the first time as a grant without any pre-existing right under instrument, the terms of which prescribe a restricted estate in the property. So the life estate given to mother Valliammal was enlarged to an absolute one by virtue of Section 14(1) of the Hindu Succession Act and when she died 10 years prior to the suit, the appellant succeeded to these items as her heir along with his other brothers. Property inherited by a person from any female is his separate property and his male issued do not take any interest in it by birth. So items 9 to 11 also cannot form the subject matter of division in the decree.
16. The plaintiff has claimed division of items 26 to 41 of plaint "A' Schedule on the basis that they were acquired by the appellant during the years 1923 to 1926 and were omitted to be included in Ex.A-1, partition deed. They were retained by the appellant for the benefit of the family comprising of himself and his sons. It transpired during trial that out of items 26 to 41 only 4 items namely items 28, 29, 39 and 41...measuring in all 1.86 acres of dry land were available in the family and accordingly the preliminary decree was passed in respect of these items. Ex.A-3 is the registration copy of the sale deed dated 14.4.1924 in favour of the appellant by one Sundarammal in respect of item 39. Ex.A-10 is the registration copy of sale of suit items 28 and 29. The contention of the appellant on this aspect is that these items though purchased in his name were allotted to his brother Vinayagam under Ex.A-1 partition deed P.W. 1 admits such allotment though according to him they were enjoyed by their family. But neither of the Schedules in Ex.A-1 pertaining to the two brothers Vinayagam and Nagabushanam or the appellant covers these items. However the fact that these items purchased by the appellant prior to the family partition under Ex.A-1 do not find a place in that deed itself is an indication that they were the self-acquisitions of the appellant. And as we shall see later there is evidence on record to prove that prior to 1932 the appellant was doing contract work and having separate income of his own. So the sons of the appellant cannot claim any right in these items. As per plaint, item 41 is S. No. 123/1 of Erumanthangal village measuring 0.05 acres of dry land. The appellant contends that this item was purchased by him under Ex.A-4 dated 19.8.1925. This sale deed refers to S. No. 123/1 extent 5 cents in Kilperumbakkam village. And it has been allotted to the share of Vinayagam under Ex.A-1. Perhaps the village has been wrongly described in the plaint. Any way there is no evidence on the part of the plaintiff to indicate that item No. 41 as described in the plaint belongs to the family. So these items have to be deleted from the preliminary decree.
17. In the plaint partition was claimed in respect of items 1 to 25 on the basis that they are properties allotted to the appellant in the earlier family partition under Ex.A-1 dated 11.7.1932. Of these items the appellant disputed the right of his sons in item 22 alone and contended that it was his separate property. This item comprises of an extent of 7.32 acres of dry land in survey No. 401/1 of Villupuram Town. In Ex.A-1 the outstandings due to the family are given as Rs. 5,236 and odd and the debt due by the family is mentioned as Rs. 6,000. The deed recites:
There is no dispute that the debts have now been discharged by the appellant. The trial court held that this item No. 22 is not the separate property of the appellant and it is joint family property available for partition. On the other hand Mr. E. Padmanabhan learned Counsel for the appellant argued that the appellant was given this item in the family partition as a remuneration for his undertaking to collect the debts due to the family and discharge its liabilities and so it is his separate property in which his sons cannot claim any right.
18. In support of his contention he relied on the decision in Narayanan v. Ranganadhan . The salient features of the deed of partition between the parties in that case were: (1) sole responsibility for discharge of the family debts which were payable to the outsiders was placed on one of the coparceners; (2) the liability cast on him for the discharge of the debts was not to the except of the properties given to him but was irrespective of the sufficiency or otherwise of the properties and any deficit or surplus was to be met or enjoyed by him exclusively; (3) the debts were to be discharged by such coparcener within a month of the registration of the deed and he was required to have it in writing from the creditors that the other coparcener was no longer liable for the debts; (4) in case, there was a default on the part of the former to discharge the debts as undertaken by him and any loss was caused to the latter, the former was to indemnify the latter; (5) exclusive dominion, control and enjoyment of the properties was vested in the former in consideration of the obligation undertaken by him to discharge the debts. The Apex Court held that the aforesaid salient features left no manner of doubt that the properties mentioned in the deed of partition were given to him in lieu of the personal undertaking given by him to discharge the aforesaid debts. The properties were given absolutely to him as his separate properties. By the aforesaid arrangement other members were absolved of the responsibility to discharge the family debts. Thus the arrangement being bona fide and its terms being fair, it was valid and the properties mentioned in the deed of partition became separate properties of such coparcener from the date of the execution of the deed of partition and were not liable to partition. The parties to the partition deed were Venkatachala and Narayana, the sons of one Rangaswami and Subramani, the son of Kuppuswami. In that division one item was conveyed absolutely to Venkatachala in lieu of his undertaking to be liable to discharge the entire debts mentioned in the partition deed whether the properties were sufficient or insufficient to discharge the same and if there was any surplus out of the properties he was to have the same absolutely but if the properties were not sufficient, he was to discharge the debts on his own responsibility without making Subramanai liable for the same. In a subsequent suit between Venkatachala and Narayana, the former claimed that the property earmarked was his separate property. The Supreme Court took the view that the conveyance of that property to Venkatachala was in the nature of remuneration for the services to be rendered by him. The mere fact that some amount out of the joint family funds were used for discharge of the debts is of no consequence. If any amount out of the joint family funds was used for the discharge of the outstanding payable to the outside debtors, Venkatachala would be liable for them to account. The property allotted to Venkatachala was akin to the remuneration received in his capacity as a Managing Director of a company by a member of a Hindu undivided family. After referring to the decision in Raj Kumar Singh Hukam v. Goverdji , the Apex Court held that the properties given absolutely to Venkatachala were his separate properties.
19. But on a close scrutiny of the decision referred to above, we are of the view that the two cases are clearly distinguishable on one vital aspect. While the dispute relating to the character of the property in that case was between two brothers, in the present action it is between father and sons. In our view this makes all the difference. The law as it stood before coming into force of the Hindu Succession Act, 1956 is stated at page 248 of Mulla's Hindu Law, 1990 Edition in these terms: "The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property...Where the share allotted to a coparcener on partition consists of property which is subject to a mortgage, the fact that he subsequently clears it from the mortgage by his own self-acquisitions, does not alter the character of the property. The unencumbered property still remains ancestral, and his male issue acquires interest in it by birth." So, though item 22 was earmarked and allotted in Ex.A-1 partition deed dated 11.7.1932 to the appellant for the purpose of discharging the family debts, the ancestral character of the property could not be converted into separate property by the terms of that partition deed. It was still property obtained by the appellant in a family partition and so joint family property vis-a-vis his sons. That that property was burdened with an obligation to discharge the debts cannot change the nature and character of property. Further we find from Ex.A-1 that the outstandings to be realised and debts to be discharged were more or less equal. There is nothing in the evidence of the appellant as D. W.5 to indicate that he salvaged the property without detriment to the joint family assets. While allotting suit items 1 to 25 in Ex.A-1, this item 22 was burdened with an obligation to discharge the debts. This allotment cannot in any sense be compared with the Managing Director's remuneration of a member of a joint Hindu family. So, we have no hesitation in holding that there is no difference between item 22 and other item allotted to the appellant in the family partition under Ex.A-1 dated 11.7.1932 regarding their character. And hence it is coparcenary property in which his sons have a right by birth.
20. In the plaint the allegations are that items 42 to 92 of Schedule I are properties acquired by the appellant from out of the income of ancestral properties when he was the manager of the joint family. After deleting items not available for division the preliminary decree was passed in respect of items 44 to 64,66 to 78,81 to 87 and 90 to 92. We have now seen that division cannot be claimed in respect of items 82,83,47,48 and 51. The extent of remaining items comes to 11.84 1/2 acres of dry lands. Besides, the appellant has purchased the houses specified in items 66 to 76. Of these houses item 76 is in Kilperumbakkam village while others are in Villupuram. It is the case of the plaintiff that the properties allotted to the appellant under Ex.A-1 partition deed dated 11.7.1932 formed the nucleus for the acquisition and hence they belong to the joint family. The ancestral properties allotted to the appellant under Ex.A-1, barring those set part for the mother are items 1 to 8 and 12 to 25. They comprise of 5.81 1/2 acres of wet land, 10.12 1/2 acres of dry land and two small houses. Of the properties now under consideration items 44 and 45 were purchased by the appellant under Ex.A-8 on 4.11.1940. Items 46 to 50, 78 and 81 were acquired in the year 1941 under Exs.A-9, A-10 and A-11, from 1946 to 1950 items 51,53 to 64 and 84 to 87 were purchased under Exs.A-12, A-13, A-14, A-15, A-17 and A-18. The relevant evidence of the appellant as D.W.5 on this aspect is to the effect that from 1923 he was having a brick kiln from which he was getting an annual income of Rs. 2,000 to Rs. 3,000. He did minor irrigation contract work where from he got Rs. 3,000 to Rs. 4,000 per year. He was also a District Board Contractor which yielded him an income of Rs. 4,000 to Rs. 5,000. He also did building repair work in which he got Rs. 500 to Rs. 1,000 per annum. He purchased the abovesaid items from the income of these contract Works. But admittedly he did these works prior to 1932. Later on he changes his stand and deposes that he did a number of contract works in Police Department and Highways Department subsequent to 1932. He was getting annually Rs. 8,000 to Rs. 10,000 from those works. For about 6 or 7 years from 1944 he did Indigo business which yielded him an income of Rs. 8,000 to Rs. 10,000 per year. In 1946 he purchased three lorries in the auction conducted by the Army Authorities in Avadi. He repaired and sold them at a profit of Rs. 20,000. He was also getting some income while he was M.L.A. from 1962 to 1975 and Municipal Councillor for 50 years and Municipal Chairman on five occasions. He took on lease about 100 acres of land, raised sugarcane and supplied them to Nellikuppam Sugar Factory. In this he got Rs. 5,000 per annum as net profit. These are the main sources of income from which he purchased the above mentioned suit items. Exs.B-34 to B-39 some correspondence and agreement between appellant and Railways relating to the period from 1962 to 1965 no doubt show that the appellant was doing railway contract. That the appellant was doing building contract and railway contract and that there was brick kiln are not disputed by plaintiff in his evidence. He would only say that the contract was done by the joint family. He presses into service Ex.A-20 the registration copy of the mortgagedeed dated 14.3.1960 executed by appellant and others in favour of L.M. Bank, Villupuram, for Rs. 15,000 and swears that the family funds were mortgaged for contract work. The evidence of P.W.1 is also to the effect that the trees from family lands were utilised for brick kiln. And the appellant has not filed any accounts to substantiate his version on the extent of income he was receiving from these works prior and during the purchases made from 1940 to 1950. Ex.B-21 the registration copy of the lease deed dated 31.1.1946 only goes to show that in the year 1946 he took about 20 acres of wet and dry lands on lease for the purpose of sugarcane cultivation. However, no accounts or other records have been produced by him to evidence the yield and surplus from leasehold cultivation. Ex.B-21 could at best indicate that in 1949 the appellant was cultivating sugarcane by taking lands on lease. Except Ex.B-21 there is no document to show either he was supplying sugarcane to Nellikuppam Sugar Factory or he was raising sugarcane prior to the acquisition of these lands from 1940 to 1950. All other documents have come into existence subsequent to 1950 and so they are of no avail to us. Though it is his version that he took about 100 acres of land on lease and cultivated, he is unable to say from whom he took the lands on lease. Excepting the solitary and self-serving version of D.W.5 in the witness box, there is no other material to accept his contention. In Mallappa v. Mallappa , the Supreme Court has held that "where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof must in such a case be placed on the manager and not on his coparceners". Apart from the question of onus, in the absence of positive proof on the part of the appellant regarding the source of the wherewithal for the purchase of these items, we are unable to accept the claim of the appellant that these items now under consideration were purchased from his separate income.
21. According to P.W. 1, of all the ancestral lands, item 22 is the most fertile one. Whereas D.W.5 says that item 22 comprising of 7.32 acres is known as 'Kuyavan Kollai'. Initially this land was not fit for cultivation. Potters used to excavate earth for the purpose of making pots. It was brought under cultivation only about 10 years prior to the suit. But the appellant has not filed the relevant adangal extracts to substantiate his plea that they began to raise crops in that field only ten years prior to the trial of suit. We find from Exs.B-17 to B-20 that some thatched houses in a portion of this property were leased out by the father of the appellant during 1919-20. But the income was only meagre ranging from 50 paise to Rs. 2.25.
22. P.W.1 deposes that he and defendants 4 and 5 also participated in the contract work of their father. However, the 4th defendant as D.W.4 does not say anything on this aspect. Further, admittedly the plaintiff was born in 1955 and the second defendant was born in 1939. So even the eldest son would have been only 11 years old when the purchase were over in 1950. Evidently the properties could not have been acquired out of the joint exertions of the father and sons. We have already seen that the appellant was allotted 5.81 1/2 acres of wet land and 10.12 1/2 acres of dry land under Ex.A-1 partition deed in 1932. And those properties were only in the enjoyment of the appellant during 1940.-50. Considering the extent of these lands, and that the total consideration for Exs.A-8 to A-15 and A-17 is only Rs. 13,550, the possibility of the income from ancestral lands having formed the source for the purchase of those 11.84 acres of dry lands could not be ruled out.
23. The preliminary decree covers the outstandings described as items 1 to 7 and 9 in plaint Schedule II, Jewels worth 100 sovereigns stated in item 8 and other movables described as sub items 1 to 11 in item 11. Sub-item 11 of item 11 and item 10 of Schedule II are vague and they have necessarily to be deleted from the preliminary decree. The sub items 5 to 8 of item 11 comprise of tractor, trailer, cultivator and tractor disc. In cross objections the 5th defendant assails the finding of the trial court that they belong to the joint family. The 5th defendant as D.W.1 states in his evidence that he purchased these items by obtaining a loan from Land Development Bank. Ex.B.7 purports to be a letter dated 3.3.1981 by the Special Officer of Villupu-ram Co-operative Land Development Bank certifying that the 5th defendant has borrowed a loan of Rs. 42,900 on 30.11.1972 for purchase of tractor, trailer and other implements and a sum of Rs. 7,606 with subsequent interest was due from him from 1.11.1978. Ex.B-9 is the solvency certificate issued by Tahsildar, Villupuram on 2.1.1975 that the 5th defendant is solvent to the extent of Rs. 1,00,000. D.W.1 further claims that he is having accounts with Indian Bank and U.C.O. Bank as per Exs.B-10 and B-11. He is paying the instalments due. He also relies upon Exs.B-3 to B-6 which indicate that he was enlisted as a contractor with Transport Corporation. But he admits in cross-examination that the entire purchase money for the tractor and its accessories was provided by loan obtained as per Ex.A-19 the registration copy of the mortgage deed dated 16.11.1972 executed by the appellant and all his sons in favour of the President of Villupuram Co-operative Land Development Bank. D.W.1 states in his evidence that the properties pledged under this document are joint family properties which are in the enjoyment of all of them. Though he claims that he was paying the instalments, he has not filed any vouchers to prove his contention. Besides, he admits that the debt due under Ex.A-19 still remains undischarged. He further states that the tractor is used for the purpose of the joint family lands. His evidence that he would receive hire charges for the tractor does not carry conviction. And he has not furnished any rent receipt also. Admittedly he has not pleaded in his written statement that he used to let the tractor on hire for joint family work. His father and the 4th defendant also used the tractor for the contract work. That they would bay hire charges for their work is not borne out by any receipt. So we are unable to agree with the 5th defendant that the tractor and its accessories are his separate properties, even though the R.C. for the same stands in his name.
24. D.W.5 claims that he alone is paying the instalments due for the tractor. According to him, his sons also joined in execution of Ex.A-19 on the insistence of Bank authorities. Though it is his evidence that he alone applied for the loan to purchase the tractor, the said loan application has not been filed. Admittedly he was using the tractor for the farm work and contract work. Further he admits in cross-examination that in O.C. No. 79 of 1983 on the file of Chief Judicial Magistrate, South Arcot he had conceded that the tractor does not belong to him and instead the 5th defendant is the owner of the same. But we have already seen that only by pledging the joint family lands by all the members of the family, the purchase money for the tractor was obtained as loan from the Land Development Bank. While so, we are of the view that sub items 5 to 8 of item 11 of Schedule II are also joint family properties and the memorandum of cross-objections filed by the 5th defendant deserves to be dismissed.
25. Regarding the outstandings due as described in items 1 to 7 and 9 of Schedule II and the other articles mentioned in item 11, the case of the appellant is that they belong to him, exclusively. Total amount due under these items comes to about nine lakh of rupees. As per plaint Schedule II items 1 to 4, 6 and 7 the appellant is stated to have a deposit of Rs. 50,000 with State Bank of India, Rs. 1,00,000 with Indian Bank, Rs. 48,000 with United Commercial Bank, Rs. 3,00,000 with South Indian Bank and Rs. 60,000 with Land Development Bank. In the written statement the appellant denies the existence of these items. In order to establish his contention he has produced Exs.B-22 and B-24 Bank passbooks which disclose that he was having only about Rs. 1,200 as cash balance when the suit came to be filed. The court below has passed the preliminary decree in respect of the amounts which were available on the date of suit in these banks. Considering the stature of the appellant as a public man, it is possible that it is only his separate money.
26. Item 9 of Schedule II of plaint is described as Rs. 50,000 due from one Jothilingam. The appellant claims that no such amount was due from Jothilingam and instead a sum of Rs. 13,000 due from outsiders had already been received. Ex.B-25 is the discharged promissory note executed by Jothilingam in his favour for Rs. 5,750 on 9.12.1980. P.W. 1 admits that his father had Bank accounts. So it is quite likely that the money due from Jothilingam represents only the separate funds of the appellant and in any event it no longer exists.
27. Item 5 of Schedule II relates to shares to the tune of Rs. 3,00,000 in South India Sugars, Mundiyambakkam. But we find from the Commissioner's Report that share certificates to the extent of Rs. 6,000 alone are available. Since admittedly the appellant was the Director of Mundiyambakkam Sugar Factory sometime in the past, the probabilities are that these shares belong to him as his separate property.
28. Item 8 of plaint Schedule II is stated as 100 sovereigns of jewels. The Commissioner states in his report that jewels worth about 20 sovereigns were available when he took the inventory on 22.3.1981. D.W.5 states in his evidence that these jewels belong to his wife Lalitha the 9th defendant herein. The court below has held that these jewels are also joint family properties since the appellant has admitted in his evidence that his first wife and second wife were having jewels. But as it has been rightly argued by learned Counsel for the appellant, the first two wives of the appellant died long ago and it is unlikely that their jewels continue to remain in the family intact since 1957. As we shall see later the 9th defendant is the wife of the appellant, we are inclined to take the view that these jewels only belong to her. Her right to the jewels cannot be negatived merely on the basis that she has not chosen to file any appeal.
29. Sub-items 1 to 3 of item 11 of Schedule II are furniture and fridge. Considering the nature of the articles and the admitted fact that the appellant was in Public life for nearly half a century it is likely that these items are also his separate properties.
30. Sub-item 4 of item 11 is the Ambassador car. There is practically no evidence on either side in this connection. We are not in a position to know when the car was purchased and for what price. There is no dispute that the appellant is a public man of stature. So it is quite probable that he acquired this vehicle only for his personal use from his separate funds. Further, there is sufficient evidence on record to show that the appellant had independent source of income. P.W. 1 speaks about his father doing contract work in 1965. There is no presumption that he utilised his independent income for the family and spent the family income for acquiring outstandings and other properties. So all items including the car are his separate properties.
31. Item 10 of Schedule II are four 5 H.P. motor pump sets. Generally they go with the land where the concerned wells are situate. There is no evidence as to where these pump sets are located. The report of the Commissioner also does not throw any light on this aspect. So they have to be deleted from the preliminary decree.
32. The appellant claims that the joint family owes Rs. 4,00,500 to Land Development Bank and other creditors. The trial court found that there was no such joint family debt to be discharged. There is only evidence of D.W.5 that he owed Rs. 28,000 boggiyam debt to one Muslim gentleman. Evidently he refers to Ex.B-33 which is the registration copy of the usufructuary mortgage deed dated 21.4.1980 executed by the appellant in favour of one Akbar Sheriff and Ahamed Shariff for Rs. 27,500. In the absence of any other evidence we have to presume that the debt is still subsisting. And it is not the case of his sons that it is tainted with immorality or illegality. So the debt is binding on the sons and provision has to be made for its discharge at the time of final decree proceeding from out of the estate.
33. There is no dispute that 9th defendant Lalitha and the appellant are living as husband and wife and the newly added 10th defendant Tamilarasi is the daughter of Lalitha. The Court below found that there was no satisfactory proof to establish that the 9th defendant is the legally wedded wife of the appellant. This finding is also assailed by the appellant herein even though the 9th defendant has not preferred any appeal of her own accord. Respondents 1 to 8 have taken the stand that there was no valid marriage between their father and the 9th defendant. At one stage they even questioned the paternity of the 10th defendant. However, Exs.B-1 and B-2 the letters admittedly written by the plaintiff to his father on 26.2.1976 and 8.4.1980 are significant in this connection. In Ex.B-2 he states When confronted with this letter P.W. 1 chose to say during cross-examination:
Evidently the plaintiff is referring to 9th defendant in Ex.B-2. He forswears in order to wriggle out of the situation. That he has chosen to address the 9th defendant as" "itself in an indication that she is the legally wedded wife of his father. Further, we have marked four more letters written by the plaintiff to his father as Exs.B-42 to B-45 in this Court. In Ex.B-42 dated 15.11.1972 he writes In Ex.B-45 he addresses the letter both to the appellant and the 9th defendant as The letter further reads Besides, we find from the evidence of D.W.1 that admittedly he was residing with his father till 1970. And it is the evidence of D. W.2 that the appellant and 9th defendant are living together since 1968. That the sons of the appellant chose to live with their father even after the induction of the 9th defendant in the household also probablises the claim of the appellant that she is his legally wedded wife. Had she been only a concubine of the appellant, it is highly unlikely that the sons would have allowed her to reside with their father in the ancestral family house where their mother lived and died. As the Supreme Court has held in Gokalchand v. Parvin Kumar A.I.R. 1953 S.C. 231, continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. Further law does not favour concubinage, but the presumption is in favour of a marriage when a man and a woman are shown to have cohabited continuously for a long number of years. In Sivachakravarthy v. Sivasankaran 84 L.W. 280, a Division Bench of this Court has held:
Where a man and woman have been proved to have lived together as man and wife, the law will presume, until the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.
In Balasubramanyam v. Suruttayan , the Supreme Court has laid down that when a man and woman continuously lived together under the same roof and cohabited for a number of years, presumption that they lived as husband and wife arises. So we have no hesitation in drawing the presumption that there was a valid marriage between the appellant and the 9th defendant. As a necessary corollary it follows that the 10th defendant is their legitimate daughter.
34. The next question we have to address our selves is the share to which the 10th defendant is entitled. Section 29(A) of the Hindu Succession Act introduced by Tamil Nadu Amending Act 1 of 1990 reads as follows:
Not with standing any thing contained in Section 6 of this Act,
(i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have if she had been a son, inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son:
(ii) at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted in the surviving child of such predeceased son or of such predeceased daughter. Provided further the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of the predeceased daughter, as the case may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition:
(iv) nothing in this chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;
(v) nothing in Clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.
On the strength of this newly introduced provision of law, learned Counsel for the appellant argued that the 10th defendant his daughter has become a coparcener in her own right in the same manner as his sons and she has the same right in the joint family properties. Hence she also has to be allotted a share along with plaintiffs and defendants 2 to 7. The objections on behalf of the respondents are that the said daughter of the 9th defendant has not preferred any appeal and in any event this plea has not been taken by the appellant in his appeal memorandum. Since the plea of the daughter to come on record as the 10th defendant has been negatived by the trial Court holding that she is not a necessary party to the suit, evidently she could not have preferred any appeal. Now we have permitted her to come on record. So there cannot be any objection for the 10th defendant to raise this plea in this appeal. Further as a Division Bench of Calcutta High Court has laid down in Nuri Miah v. Ambica Singh A.I.R. 1917 Cal. 716, when a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interest of justice, to entertain the plea. Ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But this principle is not of universal application. Where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary, to base the decision of the Court on the later circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of Justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. And the Apex Court has laid down in Pool Chand v. Gopal Lal , that so far as partition suits are concerned, if an event happens after the preliminary decree and before a final decree is passed, and a change in the shares is necessitated, the trial court can and should pass a second preliminary decree correcting the shares; and, if there is a dispute in that behalf the order of the court deciding that dispute and making a variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. A partition suit is not finally disposed of till the final decree is passed and the court has jurisdiction to decide all disputes, that may arise due to the death of some of the parties after the preliminary decree and before the passing of the final decree. There is nothing in the Civil Procedure Code which prohibits the passing of more than one preliminary decree in a partition suit, if circumstances justify it and if it is convenient and advantageous to do so. So there cannot be any impediment in passing another preliminary decree correcting the shares in case we find that the 10th defendant also has to be allotted a share in the division of family assets.
35. Section 1 of Tamil Nadu Act l of 1990 clearly states that the Amendment Act shall be deemed to have come into force on the 25th day of March, 1989. The opening words of Section 29A (i) no doubt indicate that there should be a joint Hindu family governed by Mitakshara Law in existence on 25.3.1989 in order that a daughter of a coparcener shall become a coparcener. If the family had ceased to be a joint family and got divided in status by reason of a preliminary decree or by a method known to Hindu Law, the Section will not apply. In Sundararajan v. Deivanayagam (1991)1 L.W. 97, one of us (Srinivasan, J.) took the view expressing dissent from the judgment of Andhra Pradesh High Court in Narayana Reddy v. Sai Reddy . But the latter judgment was affirmed on Appeal by the Supreme Court in Sai Reddy v. Narayana Reddy . The relevant part of the judgment reads thus:
It is obvious that under the aforesaid provision, the difference between daughter and son of the Mitakshara Hindu family is removed and the daughter is conferred rights in the joint family property by birth in the same manner and to the same extent as the son. She is, therefore, now entitled to claim partition and her share in the family property. The amending provision is a beneficial legislation which, among other things, is also directed towards eradicating social evils such as dowry and dowry deaths. It also achieves the constitutional mandate of equality between sexes.
The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A Partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the Amending Act came into force as a result of which Clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its strates, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits. We are bound by the above judgment and we hold that the 10th defendant is entitled to a share equal to that of a son. That means, she is entitled to 1/9th share and the sons, namely, the plaintiff and defendants 2 to 7 will each be entitled to 1/9th and the first defendant, the father will have the remaining 1/9th. The 8th defendant, the elder daughter of the first defendant is not entitled to claim the benefits of the amendment Act as she was married prior to 25.3.1989.
36. The only remaining point we have to consider is the question of costs. The Court below has decreed that the appellant to pay the costs of the suit to the plaintiff on Exs.A-21 to A-24 as impounding charges. The other parties are to bear their respective costs. Learned Counsel for the appellant submitted that ordinarily the order of costs in a suit for partition is either what the parties should bear their own costs or that the costs should come out of the property liable to be partitioned. A Division Bench of this Court has laid down in Neelatooru Venkatarangacharlu v. Nedatooru Sampath Kumara Aiyangar 11 L.W.5, that where a partition suit has to be brought for effecting a partition between the members of a family and neither party has been guilty of unfair contention, the costs till the preliminary decree should come out of the estate. In this case it cannot be said that there has been any unfair claim on the part of the appellant. Further no demand in writing for partition preceded the institution of the suit by the plaintiff. No doubt, P.W. 1 states in his evidence that he asked his father for division and since he was not amenable, he was constrained to file the suit. But there is nothing in writing to substantiate this plea. Even the averments in the plaint do not indicate that any notice was issued demanding partition prior to the filing of the suit. The submissions of learned Counsel for the appellant included the correctness of the directions of the trial court to the appellant to bear the stamp duty and penalty paid on Exs.A-21 to A-24 also. They were based not only on the facts but also on certain legal propositions. But it is unnecessary for us to go into that aspect of the question since we are of the view that in this action the proper order as to costs would be that it should come out of the estate.
37. Before parting, we would like to point out that plaintiff alone has asked for partition and separate possession of his share and none of the defendants has paid court fee and prayed for a decree regarding his respective share. Evidently the preliminary decree declaring that defendants 2 to 6 are entitled to 1/8th share each has to be modified suitably. All the sons of the appellant and the daughter, the 10th defendant are entitled to 1/9th share each. It is open to defendants 2 to 6 and 10 to pay court-fee due from them and seek division and separate allotment of their respective shares.
38. In the result, the appeal is allowed in part. The judgment and preliminary decree passed by the trial court are modified. The preliminarly decree for partition and separate possession in favour of the plaintiff will be only in respect of 1/9th share in suit items 1 to 8,12 to 25,44 to 46,49,50,52 to 64, 66 to 78,81,84 to 87 and 90 to 92 of plaint Schedule I and sub items 5 to 8 of item 11 and item 12 of Schedule II. During final decree proceedings provisions is also to be made for the discharge of the usufructuary mortgage debt due to Akbar Sheriff under Ex.B-33. Memorandum of cross-objections is dismissed. Costs of all parties throughout shall come out of the estate.
C.M.P. No. 15096 of 1992 in Appeal No. 688 of 1993: Petition to receive the documents 1 to 6 C.M.P. No. 15096 of 1992 is allowed as per order of this Court dt. 18.3.93 in App. No. 688 of 1983 and the documents 1 to 6 marked as Additional evidence Exs.B-40 to B-45 in O.S. No. 63 of 1982 on the file of the Sub Court, Villupuram.