R.BANUMATHI, J. - (1.) THIS appeal arises out of the judgment and decree dated 31.3.2006 made in O.S.No.504 of 2004 on the file of Additional District Judge Fast Track Court-1, Chingleput, whereby the trial Court passed a preliminary decree for partition by allotting 1/4th share to the 1st respondent/plaintiff. The unsuccessful first defendant is the appellant. For the sake of convenience, the parties are referred to as per their array in the suit.
(2.) DEFENDANTS 1 and 2 and plaintiff are the sons of 3rd defendant. 4th Defendant is the wife of 1st defendant. The joint family originally owned ancestral property of a total extent of ten acres (Suit Item Nos.1 to 7) in Cheyyur. Defendant No.3 has also been taking on lease lands of one Venu and Adikesavulu and also salt lands and was getting substantial income. The 3rd defendant was also doing contract work for Public Works Department and Harijan welfare Department. The elder son - 2nd defendant was employed in Bharat Heavy Electricals Limited ( in short, "BHEL")and he joined in service in or about 1970 and voluntarily retired in 2001. Case of plaintiff is as follows: The 2nd defendant, being employed and having contacts, helped the family in getting Indane Gas Dealership in the name of 1st defendant and that the said dealership was for the benefit of joint family. The joint family business was started in 1984 under the name of "Pattammal Gas Agency". For starting the gas agency, 2nd defendant advanced Rs.1.25 lakhs and 3rd defendant father had advanced Rs.35,000/- from his fixed deposit. The 3rd defendant also advanced Rs.57,000/- by taking loan from IOB, Tambaram against security of the family ancestral properties and the said loan was taken in the name of the 1st defendant and 3rd defendant is the guarantor. Initially, the gas godown was put on a leased site and subsequently with the efforts of the 2nd defendant, item No.8 in Tambaram Taluk was purchased for putting up the godown in Tambaram. In 1984, allied business in sale of stove under the name of 'Gowri Oom Appliances' was started in the name of plaintiff. Both Gas Agency and stove sales were under the administration of the 1st defendant and the 1st defendant received all the income from the business. The 1st defendant was pumping the income from the business for purchasing the properties in the name of 1st defendant and also in the name of his wife- 4th defendant. The extent of six grounds in Mudichur Road, Tambaram (item NO.8) was purchased for the benefit of the family out of the income from the above business in Gas Agency and sale of stoves and also agricultural income in the name of the 1st defendant. The gas godown was constructed on an extent of 3 grounds and gas agency is being run there and in the remaining two grounds commercial complex is constructed and two shops were rented out and remaining part is being used as office for the Gas Agency. The 1st defendant sold the balance one ground to one Chakrapani Reddiar for a sum of Rs.8 lakhs. The plaintiff was assisting the 1st defendant in running gas agency, which includes sale of stoves from 1984 to 1995. In 1995, the 1st defendant and his wife began to show indifferent attitude towards the plaintiff, with the result, the plaintiff had to go back to the father's place at Cheyyur. Since then, the plaintiff had been living with his father and taking care of his aged father. Mother - Pattammal passed away in 1979. The 1st defendant had purchased a housing Board plot and building of > ground in Mullai Nagar, Tambaram west (item No.9). Housing flat in Mylapore, Mandavelli was purchased with initial deposit of Rs.36,000/- in the name of plaintiff and it was sold in 1991 by the 1st defendant and the plaintiff and the sale proceeds was utilised for the stove business.
(3.) FURTHER case of plaintiff is that the 2nd defendant was working as General Manager in Bharat Heavy Electrical Limited and voluntarily retired from service in September 2000 and he has been helping family financially in order to promote joint family business. On 1.10.1991, the 1st defendant executed Ex.A.8 agreement in favour of plaintiff admitting joint family nature of the business in gas agency and agreeing to give 30% share in the profits to the plaintiff. As early as in 1993, a Panchayat was held and in the presence of respectable Panchayatdars and defendants 2 to 4, wherein, the 1st defendant agreed and admitted that the gas agency is a joint family concern and that the plaintiff is entitled to a share therein. In pursuance of the Panchayat, the original agreement, which was in the custody of the 3rd defendant, was taken by the 1st defendant on the representation that he wanted to show it to his advocate and that the 1st defendant did not return the agreement to the 3rd defendant thereafter. The 1st defendant had also returned to the 2nd defendant Ex.B.13 letter (dated 4.4.1993) admitting that the Gas Agency and allied businesses and also properties purchased therefrom belonged to the joint family and that the father and 3 brothers have shares in them. On 5.8.1994, the 1st defendant has paid Rs.2 lakhs to the plaintiff towards his share of income from the Gas Agency Joint family business and subsequently in 1995, the 1st defendant paid another Rs.1 lakh to the plaintiff calling upon the defendants 1 to 3 to effect partition. Plaintiff sent a notice on 20.4.2002 and sent a notice demanding partition. Even though defendants 2 and 3 are amenable for partition, the 1st defendant had sent a reply containing false allegations. Therefore, plaintiff filed the suit seeking for partition of the suit properties into four equal shares and allotment of one such share to him. Defendants 2 and 3 have filed written statement admitting the entire plaint averments and stating that the properties are to be divided into four equal shares and one such share is to be allotted to the plaintiff and praying to decree the suit.;