1. The above suit is filed for a Partition and separate possession of the plaintiff's 1/4th share in the suit "A" and "B" schedule properties besides other reliefs. The “A” schedule properties are the immovable properties and the “B” schedule properties are the businesses.

1. Genealogy:

CHAT

2. PLEADINGS

PLAINTIFF'S CASE:

2.1 It is the case of the plaintiff that his grandfather Seyam Pillai had inherited the properties (agricultural land and house) in Murugur Village, Thuraiyur Taluk, Tiruchirapalli. The plaintiffs father S.Karuppiah Pillai had succeeded to the said property and was enjoying the same as the Kartha of the joint family. The plaintiff's father had sold these properties in the year 1957, 1958 and 1965. Out of the sale proceeds in the year 1965, he purchased landed property in Madras measuring an extent of 3 grounds and 911 sq.ft and constructed a house thereupon. In the year 1970, he has sold the said property for a sum of Rs.2,00,000/- and these proceeds had been utilised to improve the business and to purchase the properties. It is the case of the plaintiff that the money received had been invested in the Transport business in the name and style of "S.K. Bus Transport".

2.2. He would further submit that his father had purchased a landed properties in the name of the the defendants 1 to 4 as well as himself excluding the plaintiff. The 4 th defendant is the 2nd wife of the plaintiff's father whom his father had married after the demise of the plaintiff's mother. The further case of the plaintiff is that all properties and businesses were only purchased and started from out of joint family funds. The transport business, S.K. Bus Transport, was running six tourists buses and the other business Sri Pandian Travels owned 30 Omni buses which was given to various Companies for transporting their staff. The plaintiff would submit that the properties purchased in the name of the defendants 1 to 4 is only from and out of the joint family funds and therefore, these properties have to be partitioned as well. He would also contend that the 2nd defendant had put forward a Will dated 15.01.1995 said to have been executed by S.Karuppiah Pillai (father) bequeathing all his properties in favour of the 2nd defendant. This will was obtained under duress and further since the properties are joint family poperties Karupiah Pillai at best could only bequeath his 1/5 th share. Since the defendants were not coming forward to partition the properties the plaintiff has come forward with the present suit.

The plaintiff would also contend that there are other properties of which the plaintiff has no knowledge and therefore, he is filing the suit only with reference to the properties of which he has knowledge.

3. WRITTEN STATEMENT OF THE 2ND DEFENDANT ADOPTED BY THE DEFENDANTS 1, 3 AND 4:

3.1. The 2nd defendant would categorically contend that the very suit for partition is not maintainable since the plaintiff had executed a Release Deed giving up his right to all the properties. The defendant had denied the claim of the plaintiff regarding ancestral properties having sufficient income and also the claim that the plaintiff and the defendants 1 to 3 and S.Karuppiah Pillai had formed a joint family. The defendant would categorically state that the properties shown in the schedule to the suit are separate properties of the defendants in which the plaintiff cannot claim any right. The 2nd defendant would contend that the 1st item of the suit schedule "A" was purchased by the 3rd defendant from out of his own/borrowed funds as early as on 09.07.1984. Similarly, the 2nd item was purchased by the 1st defendant on 16.02.1979. Likewise, the 3rd item of the property was purchased by the 4th defendant on 28.08.1974, the 4th and 5th items of the property was purchased by the father S.Karuppiah Pillai in the year 1993 and on 01.10.1981, respectively. The 6th and 7th items of the property was purchased by the 1st defendant in the year 1990 and he had sold away the same in the year 1995. As regards the "B" schedule 1st item of the property which is the business of S.K. Bus Transport, the 2nd defendant would contend that it had been sold by S.Karuppiah Pillai to the 3rd defendant for valuable consideration. The 3rd defendant had also cleared the liabilities of the business and is now running the business. It is the categoric case of the 2nd defendant that the 2nd item of "B" schedule property, namely, Sri Pandian Travels was a registered Partnership Firm between the defendants 1 and 4 and the one Chelladurai.

3.2. The 2nd defendant would further submit that the family of S.Karuppiah Pillai did not have any ancestral properties of value. In and around the year 1934, the said S.Karuppiah Pillai at the age of 10 had left for Ceylon. The father of S.Karuppiah Pillai had died in the year 1938. The deceased S.Karuppiah Pillai had started working at Colombo and was running businesses there from out of which he earned considerably well. Since their father was unable to operate the ancestral properties the same had been sold in the year 1957 and 1965 for Rs.500/- and Rs.200/-, respectively.

3.3. The said S.Karuppiah Pillai had returned back to India in the year 1961 after closing down his business at Colombo and had purchased property and started business in India. From the income earned, he had improved his business. He was an Income Tax and Wealth Tax Assessee from the year 1961 itself.

3.4. The defendants would submit that in the year 1954, S.Karuppiah Pillai from out of the income earned in Ceylon had purchased a property in the name of the plaintiff's mother. This property was sold by the plaintiff and his sisters, the 5 th and 6 th defendants in the suit and the income shared only between the them. The 2nd defendant would further submit that their father had entrusted the business of a Photo Studio Rathna Photo Studio to the plaintiff and had settled the business on the plaintiff. However, he was not ready to put in hard work and ultimately, had squandered away all the money given to him by his father. In fact, in the Will, which is the subject matter of Testamentary Original Suit No.2 of 2019, the father has lamented about the conduct of the plaintiff and had gone to the extent of stating that the plaintiff should not be permitted to conduct his funeral rites.

3.5. The 5th defendant had filed a Written Statement inter alia also contending that the properties are the self acquired properties of S.Karuppiah Pillai and therefore, on the death of the father, the 5th defendant is also entitled to a share in the properties. She would further contend that their father, the plaintiff and the defendants 1 to 3 never constituted a Hindu Joint Family. The 5th defendant would also submit that the 4th defendant is also entitled to a share in the property and the suit denying a share to the defendants 4 to 6 was misconceived.

4. This Court had framed the following issues:

"1. Whether the plaintiff is entitled to claim for partition of the self acquired separate properties of the Defendants

2. Is the plaintiff entitled to claim partition of the suit properties when he had executed a registered release deed releasing all right, title, interest and claims in the properties as early as in 1980

3. Whether the plaintiff can claim a share in the partnership business especially when he had retired from the business from as early as 1973

4. Whether the suit for partition of the properties of deceased S.Karuppiah Pillai maintainable in law in view of the registered Will left by him

5. Is the suit maintainable since the plaintiff had paid a fixed Court Fee of Rs.300/- when especially he admits in the plaint that he is not in possession of any of the suit properties

6. Is not the suit barred by limitation

7. To what other relief the plaintiff is entitled"

5. TRIAL:

The plaintiff had not entered the witness box to adduce evidence. It was his wife who had adduced evidence on his behalf as P.W.1 and Ex.P.1 to Ex.P.12 was marked on the side of the plaintiff. The defendants have not seriously objected to her giving evidence and have not moved any application to eschew her evidence. The 2nd defendant had examined himself as DW1 and the 5th defendant as DW2. Ex.D.1 to Ex.D.54 were marked on the side of the defendants.

6. SUBMISSIONS:

The plaintiff had not adduced oral arguments but had submitted their written arguments. However, the learned Senior counsel appearing for the counsel for the defendants 1 to 4 and 7 had made oral submissions and written arguments have also been filed by them.

7. In the Written arguments of the plaintiff, it is contended that S.Karuppiah Pillai was a native of Murugur Village, Thuraiyur Taluk, Tiruchirapalli. The plaintiff and the defendants 5 and 6 are the children born to S.Karuppiah Pillai through his first wife. The 4th defendant is his second wife and the defendants 1 to 3 are born to her. The 7th defendant is the daughter of the 1st defendant who had died pending the suit.

8. The plaintiffs would contend that the income earned from the sale of the ancestral lands at Murugur Village formed the nucleus with which Karuppiah Pillai had invested in business as also utilised it for the purchase of properties. The case of the plaintiff is that the "A" schedule immovable properties and the “B” schedule businesses were purchased/commenced from out of the ancestral funds and therefore, they are liable to be partitioned amongst the plaintiff and the defendant 1 to 4 who constituted the joint family.

9. The plaintiff's case is that the schedule B business was earning considerable income and this income has been utilized for the purchase of the A schedule properties. The plaintiff would further submit that S.Karuppiah Pillai who only owned a 1/5th share in the joint family had no authority to bequeath the entire properties of the 2nd defendant. It is also the plaintiff argument that in the Will dated 15.01.1951, which is the subject matter of T.O.S.No.2 of 1996, it is stated that the plaintiff was settled a Photo Studio. However, the plaintiff would submit that the premises in which the business was carried on was a rented premises and what was given to him was only a few photographic camera and no valuable properties have to be given to the plaintiff. The plaintiff would submit that the 4th defendant had influenced Late S.Karuppiah Pillai in not giving any property to the plaintiff, his son through the 1st wife.

10. The plaintiff would submit that considering the fact that the plaintiff is able to prove the ancestral nucleus which constituted the source for the purchase of the other properties he is entitled to a share in the suit property.

11. Per contra, Mr.Yashod Vardhan, learned Senior Counsel for the defendants 1 to 4 and 7 would at the outset state that the suit should be dismissed as the plaintiff had not got into the box to establish his case and P.W.1, his wife has not been authorised to depose on his behalf and her evidence deserves to be eschewed. He would further submit that the cause of action on which the suit has been filed is that the properties are the joint family properties since the schedule “A” and “B” properties were purchased/commenced from out of income from the ancestral properties at Thuraiyur. Ex.P.1 to Ex.P.4 are the Sale Deeds in respect of the properties at Thuraiyur executed in the year 1957-1965. The entire properties have been sold for only a sum of Rs.3,400/- and this would never have been the source for the purchase of the other properties and the businesses. He would further contend that under Ex.D.1, the plaintiff had released all his rights to the father's properties and having done so the plaintiff has no legal basis to file the present suit. It is also his case that the 5 th defendant, the sister of the plaintiff has in very clear terms stated that the properties are all the self acquired properties of her father, Late Karuppiah Pillai and there was no joint family. He would submit that the defendants have filed enough evidence to show that Late Karuppiah Pillai had on his return from Ceylon in the year 1961, started to do business and out of the income earned has purchased properties and invested in business. The Income Tax return of Karuppiah Pillai from the year 1961 has been produced to prove the above statement. He would also contend that as regards the “B” schedule properties, the ist item was sold by Karuppiah Pillai to the 2 nd defendant even during his life time. The 3 rd item is a Partnership Firm in which Karuppiah Pillai had no interest.

12. The learned Senior Counsel for the defendants 1 to 4 and 7 would rely on the following Judgments in support of his arguments:

"1. (2014) 15 Supreme Court Cases 570 [LQ/SC/2014/939] Leela Rajagopal and others v. Kamala Menon Cocharan and others

2. (2014) 15 Supreme Court Cases 578 [LQ/SC/2014/766] Ved Mitra Verma v. Dharam Deo Verma

3. (2005) 1 Supreme Court Cases 280 [LQ/SC/2004/1270] Meenakshiammal (dead( through Lts and others v. Chandrasekaran and another

4. 1(2008) 7 Supreme Court Cases 216 [LQ/SC/2008/1164] Vidya Wanti and another v. Durga Dass

5. (2010) 14 Supreme Court Cases 266 [LQ/SC/2010/1291] Gopal Swaroop v. Krishna Murari Mangal and others"

Therefore, he prayed for the dismissal of the suit.

13. Issue Nos.1 to 3:

The plaintiff has filed the suit on the ground that the suit schedule properties are joint family properties having been purchased from out of the income from the ancestral properties. The contention of the plaintiff is that the sale consideration of the ancestral property at Murugur Village, Thuraiyur Taluk, formed the nucleus for the purchase of the property at Kodambakkam in the year 1965.

14. Under Ex.P.1 to Ex.P.4 which are of the year 1957, 1958 and 1965, respectively, Karuppiah Pillai had sold the ancestral properties for a total sum of Rs.3,400/-. The property purchased by Karuppiah Pillai under Ex.D.10 on 08.08.1965 was for a total sum of Rs.45,000/-. The defendants have filed Ex.D.2 to Ex.D.7 to show that Karuppiah Pillai was working at Ceylon. The evidence of Karuppiah Pillai in the proceedings in E.A.No.1064 of 1984 in O.S.No.1516 of 1978 marked as Ex.D.19 would indicate that he had returned back to India in the year 1961. Thereafter, under Ex.D.8 he had purchased the business Rathna Studio. From out of this income in 1965, he has purchased property at Kodambakkam under Ex.D.16. This property is sold in the year 1970 under Ex.P.5 for a sum of Rs.2 lakhs. The other properties and business have been purchased and started out of the income from the Photo Studio as well as the Transport business which he had started in the meanwhile. The plaintiff has left his father's house in the year 1982 itself which is evident from the evidence of P.W.1. The plaintiff has also not questioned the Release Deed executed by him in favour of Karuppiah Pillai in the year 1980. There is no evidence on the side of the plaintiff to show that after the year 1980, the plaintiff continued to do business with his father.

15. Further, properties have been purchased in the name of defendants 1 to 4 and they are in enjoyment of the same since then. The evidence of Karuppiah Pillai in Ex.D19 and Ex.P.11 and Ex.P.12 would show that the plaintiff was an alcoholic who had squandered away the money and had not been able to do business.His wife and children were being taken care of by Karuppiah Pillai more out of a sense of moral responsibility. Without establishing their plea of the existence of a joint family the plaintiff cannot seek to have the partition. A perusal of Ex.D.1 would indicate that the plaintiff had released all his interest in the properties of his father way back in the year 1980, itself. In fact, a reading of Ex.D.1 would show that the plaintiffs had recognised that his father had acquired properties and interests in various concerns and businesses all from out of his own self exertions and earning unaided by any ancestral or family nucleus. This Deed has been executed on 04.09.1980 and the plaintiff has not questioned the said Deed till the filing of this suit, i.e., nearly 16 years after the execution of the Deed. That apart his own sibling, the 5 th defendant has contended that the properties are the self acquired property of Late Karuppiah Pillai. The plaintiff is therefore not entitled to claim a share in the properties which are the self acquired properties of Karuppiah Pillai. Issue Nos.1 to 3 are answered against the plaintiff.

16. Issue No.4:

Having held in Issue Nos.1,2, and 3 that the suit properties are the self acquired properties of S. Karuppiah Pillai, the Court has to now consider whether the suit for Partition of the properties of the deceased S. Karuppiah Pillai was maintainable in view of the registered Will executed by him. T.O.S.No.2 of 1996 has been filed originally as an Original Petition by the 2 nd defendant seeking probate of the Will dated 15.01.1995executed by Late S. Karuppiah Pillai. The 2 nd defendant as executor of the Will has filed the above proceedings. The plaintiff and the 5 th defendant filed a caveat and thereafter, the Original Petition was converted into a Testamentary Original Suit. Since this Court has held the Will to be valid in the Testamentary Original Suit T.O.S.No.2 of 1996, and as the Court has held that the properties are the self-acquired properties of Late Karuppiah Pillai, the plaintiff cannot seek partition of the properties of Late Karuppiah Pillai. Issue No.4 is answered against the plaintiff.

17. Issue No.5:

The plaintiff has filed the suit for partition and had paid Court Fees under Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act contending that he is in joint possession and enjoyment of the suit schedule properties. The defendants have let in extensive evidence both oral and documentary to show that the plaintiff had left the family as early as in the year 1982 and he had also released his interest in all the properties of his father under Ex.D.1 in the year 1980 itself. Therefore, the contention that the plaintiff in joint possession of the suit property is totally incorrect. Therefore, the plaintiff ought to have valued the properties and paid Court Fee under Section 37(1) of the Tamil Nadu Court Fees and Suit Valuation Act and not under Section 37(2) thereon. This issue is held against the plaintiff.

18. Issue No.6:

The suit filed is one for partition on the premise that the properties continued to be joint. Though an issue has been framed the defendants had not seriously contested the above and that apart, the suit being one for partition is not barred by limitation. This issue is answered in favour of the plaintiff

19. Issue No.7:

In the result, this Civil Suit is dismissed with costs.