A.C. Gupta, J.
1. These are two appeals which arise out of a suit for partition filed in the Court of the Subordinate Judge of Dindigul, Tamil Nadu on 17 September, 1958 Plaintiffs are the appellants in C. No. 2261 of 1968: in the other appeal CA No. 2308 of 1968 the appellants are defendants Nos. 2, 3, 4 and 5.
2. Plaintiffs' case as made in the plaint is as follows: The two plaintiffs and the five defendants constitute a joint Hindu family. The plaintiffs are the sons of the first defendant, Ayyalu Naidu. Defendants 1 and 2 are the sons of one Alagar Naicker. The third defendant is second defendant's son. The fourth defendant is third defendant's wife and defendant No. 5 is their daughter. In 1941 Laager Naicker was allotted the properties mentioned in Schedule A of the plaint on oral partition between himself of and his (sic) Laager Naicker died in 1942 and A schedule properties devolved upon the plaintiffs and defendants 1 to 3 by survivorship The second defendant being the eldest member of the family after Laager Naicket's death used to manage the joint family properties. Laager Naicker had a paternal uncle whose name was Kochadai Naicker Kachadai Naicker had no mah issue. According to the plaintiffs the second defendant in whom he had reposed great confidence used to manage all his affairs. The plaintiffs allege that in 1944 when Kochadai Naicker had become old and infirm defendants 1 and 2 'had come to an understanding to divide the properties of Kochadai Naicker between themselves depriving his widow and daughters. Kochadai Naicker who married twice had four daughters by his first wife and two daughters by the second. In pursuance of that plot the second defendant on December 27, 1944 had a document executed by Kochadai Naicker which was described as a deed of adoption (Ext-B 7), In this document there is a recital that Kochadai Naicker had taken the first defendant in adoption about 30 years ago The plaintiffs assert that as a matter of fact Kochadai Naicker had not taken the first defendant in adoption at any time. According to the plaintiffs, defendants 1 and 2 acting in league brought into existence a number of documents after 1944 in which the first defendant was described as son of Kochadai Naicker: in none of the documents relating to Kochadai Naicker's properties executed prior to 1944 the first defendant had been described as such. The plaintiffs version is that in the matter of bringing into existence the aforesaid documents after 1944, the first defendant, who was their father was only a tool in the hands of (he second defendant who was his elder brother and manager of their joint family. Kochadai Naicker died on February 16, 1946 leaving behind him two wives Kamaksbi and Alagammal, end six daughters Kamaksbi died in 1953, two of her daughters died before the suit was instituted.
3. According to the plaintiffs some time in 1947 a tentative arrangement was agreed upon by the first and the second defendant for convenient enjoyment of the ancestral properties left by Laager Naicker under which the first defendant bad possession of items 29, 32 33, 35 and 40 and half of items 25, 28, 30, 31, 37, 38 and 39 of properties mentioned in schedule A to the plaint, while the second defendant continued to be in possession and enjoyment of the other properties described in that schedule. In 1954 the two brothers, defendants 1 and 2, appear to have fallen out when the first defendant while asserting his, half share in the properties of their father Laager Naicker refused to part with any of Kocini Naicker's properties of which he was in possession in favour of the second defendant The second defendant resented what he thought was ungrateful conduct on the part of the first defendant after what tile second defendant bad done for securing Kochadai's properties for him.
4. The plaintiffs seek partition and separate possession of the properties described in schedules A, A1, B, C, D and E of the plaint. The properties mentioned in schedules A and A1 were left by Alagir Naicker. According to the plaintiffs, the second defendant purchased out of the surplus income of the joint family properties the B Schedule properties in his own name, and the properties of schedules C, D and E respectively in the names of the third, fourth and the fifth defendants. In paragraph 31 of the plaint, the plaintiffs state:
The suit is filed for converting the joint possession of the plaintiffs along with defendants 1 to 3, in respect of the suit properties into separate possession of their 2/6 share in the same and on such severance allot a 2/6 share in the plait properties and for taking an account of the income from the joint family properties for the period of management of the 2nd defendant and to recover their share of what is fondue to the plaintiffs on the taking of accounts. But the plaintiffs give up the amounts due to tem for all years. Except for one year i.e. from 199-57 to 17-9-58
5. The second defendant's version in his written statement is that the first defendant since his adoption by Kochadai Naicker had ceased to be a member of Laager Naicker's family. He denies that he had ever comes to any understanding with the first defendant to grab Kochadai's property after his death and divide it between themselves According to the second defendant be bad no reason to entertain any such idea because the first defendant's adoption by Kochadai Naicker was true. Kochadai's wife Kamakshi Ammal had signed the died, Ext. B7, which had been registered. This document executed in 1944 sought to confirm the adoption which was said to have been made about 30 years earlier. Explaining why the fact of adoption was not recorded in writing when it was made, the second defendant says that 'the parties very probably thought them that there was no need for any such writing' but 'when moneys had to be sorrowed from Chatty families for purposes of agriculture, money-lending Cheltiars in view of the absence of a deed of adoption insisted that the first defendant should be described as the natural son' of his father. Therefore, the ''parties had no option but to execute the said deed' in 1944. The second defendant denies that be brought info existence documents to support the first defendant's claim to Kochadai's estate as adopted son against Kochadai's widow Kamakshi Ammal. The story of a tentative arrangement in 1947 for convenient enjoyment of the ancestral property left be Laager Naicker mentioned in paragraph 20 of the plaint is described by the second defendant as 'imaginary' and 'false'. He denies that the properties mentioned ie schedules B, C D E were acquired out of the surplus income of the ancestral properties. The second defendant also contends that if it is true that Kochadaj's properties were obtained by the first defendant as a result of a pact between him and the second defendant for their common benefit, Kochadai's properties also should be made available for division according to the alleged pact,
6. The third defendant who is the second defendant's son adopts his fathet's written statement and adds that items 1 and 3 to 8 of schedule C properties were purchased with his own funds and that ha obtained a mortgage in respect of item No. 9 by advancing loan also from his own funds. The origin of his funds is slated to be the properties given to him by his mother who in her turn, got them as 'Stridhan' from her father's family. As regards item 2 of that schedule, which also stands in the name of the third defendant, it is stated that he is only a Dame-lender and the property belongs to one Chinnatbayammal and that cone of the parties to the suit has any manner of right or title to it.
7. The case of fourth defendant, wife of the third defendant, is that; properties of D and E schedules have been purchased with the income of her own 'Sridhar' properties.
8. The first defendant who is the father of the plaintiffs admits the allegations in the plaint. He adds that for 'convenient enjoyment' a tentative arrangement was agreed upon by and between him ana the second defendant in 1947 under which the first defendant was in exclusive enjoyment of certain item of property of A schedule and the second defendant was 'allowed to be in enjoyment' of a major portion of the properties of that schedule because by that time the first defendant 'had managed to secure possession of some of the properties of Kochadai Naicker'. The case of the defendant is that after Kochadai Naicker's death, his widow Kamakshi Ammal and Kochadai' daughters opposed the first defendant's claim to the estate of Kochadai Naicker. There were proceedings under Section 144 of the CrPC between Kamakshi Ammel and the first defendant. Kamakshi Ammal died in 1953. Thereafter the second defendant claimed a share in the properties secured by the first defendant in Kochadai Naicker's estate which the first defendant declined to surrender. Being disappointed the second defendant put of malice induced Angammal, a daughter of Kochadai Naicker, to file a suit in 1957 in forma paupria for partition and separate possession claiming one-third share in Kochadai Naicker's properties. In this suit the rim defendant and the other daughters of Kochadai Naicker were impleaded as defendants. During the tendency of the proceedings the parties agreed to settle their dispute and the petition for leave to sue in forma pauperism which was then pending was allowed to be dismissed for default This was followed by a family arrangement evidenced by a registered deed dated October 22, 1957 (Ext. A-27).
9. The trial Court found on a consideration of the evidence that the document dated December 27, 1944 described as the adoption deed (Ext. B-7) though Kochadai knicker had executed it, had been brought into existence fraudulently by defendants 1 and 2 together taking advantage of the age and inability of Kochadai Naicker to take care of his own affairs. The trial Court found that prior to this 'adoption deed' there was not a single document in which the first defendant had been described as Kochadai Naicker's adopted son, and the documents executed subsequent to the deed in which the first defendant has been described as such were all created 'in pursuance of a scheme of fraud' for the purpose of laying a claim to Kochadai Naickeir's estate. The trial Court also disbelieved the oral evidence adduced in support of the case of adoption. The trial Court decreed the suit as follows:
In the result, the f nit ia decreed for portion of the immovable properties described in schedules A, B, C, D and E of the plaint into six shares and the possession of two such shares to the plaintiffs and one such share to the 1st defendant, The plaintiffs are entitled to a partition of the moveables admitted to be in existence by the 2nd defendant in the written statement filed by him into six shares and possession of two such shares. The Ist defendant is entitled to a one sixth share in them. The 2nd defendant will render an account of the income from the properties of the joint family for the period from 18-9-1957 to 17-9-1958 as claimed in the plaint para 31. If any surplus from out of the income of the joint family properties is found to be with the 3rd defendant on taking such accounts, the plaintiffs would be entitled to a 2/6th share in she same and the 1st defendant to an one-sixth share. Defendants 2 to 5 will pay (he costs of the plaintiffs in this suit.
10. The High Court on appeal preferred by defendants 2 to 5 also held that contesting defendants had failed to establish that the Ist defendant was given in adoption to Kochadai Naicker, that 'the evidence adduced about the factual of adoption' was 'simply worthless'. The High Court also rejected a contention raised on behalf of the contesting defendants that the estate of Kocbadai Naicker in the possisiion of first defendant should be treated and dealt with as joint family property of defendants 1 and 2 acquired by them by their joint labour and exertion. The High Court pointed out from the relevant paragraphs of the plaint and the written statement of the first defendant that whatever defendants 1 and 2 did was all for and on behalf of the first defendant for his benefit and that it was impossible to read into the pleadings a case of joint acquisition by joint labour. In any event, it is clear from what the trial Court and the High Court have found that the first defendant's right, if any. in Kochadai Naicker's estate rested on the family arrangement deed (Ext. A-27) dated October 22, 1957, The High Court however held disagreeing with the trial Court that the plaintiffs and the first defendants were not entitled to any share in the properties of B schedule except item 2 and the C, D and E schedule properties. The High Court did not also allow the plaintiffs' prayer for a direction on the second defendant to render accounts saying..if IInd defendant is called upon to reader an account... equally the Ist defendant would be liable to render an account of the income from the properties which were lefc in his possession.In such cases, where several members of the family are put in possession of separate items of properties for convenient enjoyment, the only relief that could be awarded is the relief of partition by meter and bounds....
The High Court came to the following conclusions:
(1) The Ist defendant Ayyulu is still a member of the joint family of the contesting defendants and it is hereby declared that the plaintiffs 1 and 2 are entitled each to 1/6th share and the 1st defendant another 1/6th share In the 'A' scheduled properties and the moveables as per the lower Court decree.
(2) The 'B' schedule properties (except item 2 and the C, D and E schedule properties are not partial properties and the plaintiffs and 1st defendant are not entitled to any share therein and
(3) The plaintiffs and Ist defendant are not entitled to the relief of accounting of the income from the properties.
Civil Appeal No. 2308 of 1968
11. In this appeal defendants 2 to 5 question the correctness of the finding that they had failed to establish that the first defendant was given in adoption to Kochadai Naicker. The trial Court and the High Court have concurrently found that the story of adoption was not true, and this is a finding of fact. The finding is based on a consideration of the relevant material on record. We do not find any justification for interfering with this finding on the evidence before us. This appeal must therefore be dismissed.
CA.NC 2261 of 1968
12. This appeal relates to the properties set out in B, C, D and E schedules of the plaint It has already been stated that the High Court reversing the decision of the trial court held that these properties except item 2 of B schedule were not pattible properties and that the plaintiff} and the first defendant were not entitled to any share therein. The question is whether the High Court was right in reversing the findings of the trial Court in respect of these properties.
13. The properties of B schedule may be taken up first for consideration. There are four items of properly in B schedule. It is not necessary to refer to item 2 which has been concurrently found to be a joint family property. Items 1 and 4 stand in the name of the second defendant who was examined as D.W. 6. In paragraph 31 of his written statement the second defendant says that 'items 1 and 4 of B schedule properties' were 'purchased by this defendant from out of the income of the joint family properties belonging to his family. Neither the plaintiffs nor the first defendant has any right or title to tie seme'. It is clearly stated what the second defendant meant by 'his family' Probably the reference was to the alleged joint family consisting of himself and bis son, and this would be consistent with the case he sought to make that the first defendant had been adopted into another family and ceased to be a member of the original joint family. There is however no evidence what were these properties belonging to 'his family' and what was the income out of them. It has been found by both Courts that the plaintiffs and the first defendant continued to be members of a joint Hindu family with the second and third defendants. The High Court however came to the conclusion that items 1 and 4 of B schedule were not joint family properties on the view that 'in this cass, tin 1941 there were three branches and the second defendant was only a grand son of the latest of the three branches. There is no evidence at all that the second defendant had any access to the family properties or enjoyment of the family properties.' It ii difficult to see how this could bs a valid consideration in negativing the finding of the trial Court when the fact remains that there was the joint family and these two items had been purchased in the mm; of the second defendant. The High Court also thought that because these two items of property were purchased for comparatively small sums 'it cannot be postulated that the second defendant would nor have acquired the properties himself.' But this is only a surmise and there is DO convincing evidence that the second defendant purchased these properties with his own money the property mentioned In item 3 also stands in the name of the second defendant. According to the second defendant the money for purchasing this property was given to him by his wife and that he was only a benamdar. His case is that his wife at the time of her marriage received a cash amount of Rs. 3000/ and that 'this amount was improved and from out of the same' the sale price of the property was paid by her. The trial court disbelieved the story. This is what the trial Court said on the second defendant's claim: He says that his wife was given money about forty years ago when he married her but confesses that she did not invest that money in any bank and did not land that money to any one. He admits that there is no record of any kind to show that she had any money of her own. It is seen from his evidence that her brother owns only about three acres of land worth about Rs. 7000/- or so now. He admits that her father had no money lending transactions of his own and did not sell any property before this witness (second defendant) married his daughter,' We think the High Court had no valid grout a for reversing the well considered finding of the trial Court on this point. We are therefore of opinion that so far as properties of B schedule are concerned the decision of the trial Court.
14. C schedule consists of nine items of property. All these properties which include two mortgages are in the name of the thud defendant. As regards the property mentioned as item 2 of C schedule the third defendant says that this was purchased with the money and for the benefit of one Chinnathaymmal and that he was only a benamoar. The trial Court refused to accept the story because Chinnathayammal had not been examined As regards items 1 and 3 to 9 the trial Court disbelieved the third defendent's case that these properties were acquired from the sum of Rs. 3000/ and jewels weighing 15 sovereigns. The High Court however found it believable the these properties were acquhed out of the third defendant's inheritance from his mother. We are inclined to agree with the High Court that C schedule properties are not paitible, but on the other ground on which the finding of the High Court on this point rests. The High Court points out that all these properties were acquired between 1952 at d 1957 when, according to the statement made in paragraph 20 of the plaint, pursuant to a tentative arrangement for convenient enjoyment of the ancestral properties the parties had been in separate possession and enjoyment of some of the joint family properties. The finding is that these properties were acquired following the aforesaid arrangement out of the income of the properties of which the second defendant was then in separate enjoyment. The trial Court also found that the parties were in separate possession of certain properties in pursuance of a tentative arrangement entered into in 1947. The High Court observes 'The very idea of allotment for convenient enjoyment, though reserving a right to effect a final partition by/meters and bounds carries with it necessary implication that the two branches were entitled to deal with the in come accruing from the properties allotted to them in any manner they liked, and either branch will have no claim as against the other in respect of the properties purchased out of such income.... It will be meaningless and frustrate the very object of the arrangement, if we import into this arrangement any liability to render account inter(sic) between the brothers for the income. The only logical and rational basis on which this arrangement could be understood and worked out is that the income from the properties allotted to the two branches will belong to the respective branches.' We agree with the view taken by the High Court, and in this view item 2 of C schedule would also not be a partible property having been acquired within the aforesaid period, if the benami story is not believable.
15. D and E schedule properties stand in the name of the fourth defendant who is the wife of the third defendant. The trial Court did not accept a claim made by the third defendant that these properties were purchased from the funds given to the fourth defendant by her mother and held that when a joint family if found to be in possession of sufficient nucleus to make the impugned acquisitions, then a presumption arises that the acquisitions are joint family properties. The High Court however, was of the view that no such presumption arises when the property stands in the name of a member of the family who is not a coparcener. The correctness of this proposition has been disputed on behalf of the appellants. We do not find it necessary to go into this question. All these properties were acquired between 1952 and 1956 when the aforesaid arrangement for convenient possession between the first and the second defendant was subsisting. On the ground on which the C schedule properties been found to be non partible, the properties of D and E schedules also cannot be treated as joint family properties. It is pointed out in the judgment of the High Court that between 1953 and 1956 properties were purchased in the name of the first defendant as evidenced by exhibits B-12, B-14, B-17, B 18 and B 19 and also in the name of the first plaintiff, but these properties have not bean brought into the hotch potch The High Court concludes: 'having regard to the fact that: properties were purchased in the individual names of (he members of the family, it has to be held that the intention of the parties is to hold these properties as their own. 'Considering the circumstances of the case we agree with the High Court that D and E schedule properties are not partible.
16. In the result Civil Appeal 2308 is dismissed. Civil appeal 2261 is allowed to the extent that in go far as B schedule properties are concerned the decree of the High Court is set aside and that of the trial Court in respect of these properties is restored: the decision of the High Court is affirmed in respect of C, D and E schedule properties, There will be no order as to coats in either of the appeals