- (1.) THE plaintiffs in O.S.No.71 of 1985 on the file of the Subordinate Judge, Sankari are the appellants. The plaintiffs filed the suit for partition and the suit was dismissed and aggrieved by the same, this Appeal is filed.
(2.) THE case of the plaintiffs is as follows: - The first defendant S.K.Bangaru Naidu is the father and the plaintiffs and defendants 2 and 3 are his children. The fourth defendant is the wife of the first defendant. In other words, the defendants 1 and 4 are the parents and the plaintiffs and the defendants 2 and 3 are their sons. The plaintiffs and the defendants constitute an Undivided Hindu Family and the properties belonged to the joint family and they are in joint possession of the same. Therefore, the plaintiffs got undivided 2/5 share in the property. It is further stated that the first item of the suit properties was allotted to the share of the first defendant in the family partition between the first defendant and his brothers and others in the year 1953 under a registered document dated 9.2.1953. The first defendant is the Kartha of the family. With the income from the joint family, he started news agency business, grocery business and other businesses. The plaintiffs and the defendants 2 and 3 were later joined in the business and they also contributed for the improvement of the same. The joint family was running a typewriting institute in the name and style of Vasan Typewriting Institute and in the same building, the family was also running "Vasan News Mart" and "Usha Tailoring Institute". Apart from that, the family was also doing lottery chit business. The other items of suit properties were also purchased out of the joint family earnings and income from nucleus. In 1955, the defendants 1 to 3 and the plaintiffs jointly borrowed a sum of Rs.2,000/ - by mortgaging the joint family properties and the amount was utilised for the joint family business and also for the purchase of the second item of the suit properties. In the year 1963, out of the joint family earnings, the third item of property was purchased in the name of the first defendant and in the year 1975, fourth item of property was purchased in the name of the fourth defendant benami for the members of the joint family. In the ancestral house, the second defendant is residing. The fifth item of the suit property was also purchased by the first defendant and it is a residential house site. In the first item of the suit property, the third defendant is residing. In the second item of suit property, the second plaintiff is residing. The first plaintiff is residing in a rented house. Therefore, the plaintiffs are entitled to 2/5 share together and the first defendant refused to divide the properties and therefore, the second plaintiff issued notice to the first defendant and that was replied by the first defendant stating that the properties were his self -acquired properties. The first defendant also settled the fifth item of the property in favour of the third defendant though the first defendant has no right to the said property. Therefore, the suit was filed for partition. The first defendant filed a statement and the same was adopted by the defendant 2 to 4 and they denied the claim of the plaintiffs. It is stated that the first item was sold by the father of the first defendant, namely, Krishnasami Naidu to one Dhanammal and one Subbu Goundar on 30.1.1947 and later, the property was purchased by Dasappa Naidu on 11.2.1947 and the first defendant purchased the same from Mr.Dasappa Naidu and that was included in the partition deed. The first defendant did not inherit any ancestral property and the first item of property was the self -acquired property of the first defendant though it was allotted to him under the Partition Deed dated 9.2.1953. The first defendant was exercising all rights of ownership over the first item of property treating the same as his self -acquired property. The grocery stores and news agency businesses were not joint family businesses and out of the self -exertion of the first defendant, those agencies were obtained and were run out of the own efforts of the first defendant. The first item of the property is only a house and it did not fetch any income and at the instance of the lending society, the sons were impleaded as parties to raise a loan by mortgaging the first item of properties and that will not make the property as joint family properties. The first plaintiff immediately after stopping his education was employed in India Cement Factory at Sankari West. Likewise, the second plaintiff, went to Ooty and stayed with his sister for about 2 years and thereafter, got himself employed in the Tamilnadu Printing Press at Tiruchengode and thereafter, working as a cleaner in a lorry and was also maintaining a small shop and therefore, the plaintiffs did not contribute their labour for the business. On 25.1.1978, the first defendant voluntarily gave various news agencies to the defendants as the same was self -acquired property and the plaintiffs cannot question the same. The joint family never run any Typewriting Institute. The third defendant was an L.I.C agent from 1960 to 1965. Out of his own funds, he hired typewriting machines and was running the institute and the plaintiffs cannot claim any right over the same. He also denied the allegation that the joint family nucleus provided funds for construction and purchasing the other items of the suit properties and the second item of the property was purchased by the first defendant out of his self -earning and the third item was also purchased by the first defendant out of his self -earning and these purchases were not from and out of his joint family funds. Therefore, items 2 and 3 are the separate suit properties of the first defendant and the plaintiffs cannot claim any right over the same. The fourth item of property was also a separate property of the fourth defendant, which was purchased from and out of Sreedhanam amount of the fourth defendant by her mother. The mother of the fourth defendant executed a Will dated 9.3.1956 bequeathing the right to collect the outstanding amount due and payable to her and after realising those amount, the fourth defendant purchased a building in Door No.5 -2 -12 from one Perumal Chettiar and sold the same to one Muthu for a consideration of Rs.12,500/ -. From and out of the sale consideration, she advanced Rs.10,000/ - to the first defendant on a mortgage deed hypothecating the building bearing Door No.5 -2 -19 on 13.3.1975 and the first defendant repaid a sum of Rs.4,000/ - and the fourth defendant purchased item No.4 out of her own money on 7.5.1975 from one Varadarajulu Naidu and neither the plaintiffs nor the defendants 1 to 3 can have any claim over the same. Similarly, the fifth item of property was also purchased by the first defendant from and out of the earnings and therefore, he is entitled to execute the settlement deed in respect of the property in favour of the defendants and that cannot be questioned by the plaintiffs. He also settled a portion of the properties comprising Door No.76 and 76A, namely, the first item of the property in favour of the third defendant and the third defendant spent more than Rs.20,000/ - in altering the first item of the properties and he also mortgaged the same with the Sankari Co -operative Urban Bank Ltd., and the plaintiffs were aware of the same and did not object and therefore, the plaintiffs cannot claim any right over these properties. The third defendant is living with his family in a portion in item one of the properties and he is also running an institute in another portion and the plaintiffs cannot claim any share in those properties and all the properties were the self -acquired properties of the first defendant and therefore, the plaintiffs cannot claim any right over the same.
(3.) ON the basis of the above pleadings, the following issues were framed by the trial Court: - 1. Whether the plaintiffs are entitled to 2/5 share in the suit properties? 2. Whether the 1st item of suit property is a self acquired property of the first defendant? 3. Whether the news agency and business are a separate properties of the 1st defendant? 4. Whether the plaintiffs are entitled to partition and separate possession? 5. To what relief the plaintiffs are entitled ? ;