- (1.) THESE two appeals arise out of a suit for partition. The earlier appeal is filed by the first defendant in the suit and the later appeal is filed by the plaintiff. The plaintiff and defendants 2 to 5 are the sisters of the first defendant. Their father Mahalingam Chettiar died on 7. 11. 1968. His wife died in 1980. It is the case of the plaintiff that Mahalingam Chettiar had some ancestral properties in the shape of lands described as item 4 in the plaint schedule, but the income therefrom was not sufficient for maintaining the family. According to her, she carried on business with the help of her husband and with the aid of the income from the business acquired items 1 to 3 which are house properties. In the plaint as originally filed, there were only four items. But, subsequently, by an amendment, two more items were introduced, one being cash of Rs. 43,600 and the other being jewels worth Rs. 53,000. The amendment was only with respect to the schedule by introducing two more items, but no part of the body of the plaint was amended. No recital was included in the plaint as regards the said cash and jewels. The plaintiff also said that defendants 2 to 5, her sisters had already relinquished their interests in the property on 30. 3. 1981 under Ex. B-1 and thereafter, the properties were owned in common by the plaintiff and the first defendant only. The plaintiff clairned one half share in items 1 to 3 and l/4th share in the remaining properties.
(2.) THE suit was contested by the first defendant. According to him, the release by defendants 2to 5 enured only in his favour and the plaintiff cannot claim the benefit thereof. He contended that items 1 to 3 were also acquired with the aid of joint family nucleus and all the items 1 to 4 were only joint family properties. He also contested the claim of the plaintiff for items 5 and 6, denying the existence thereof. He raised a plea that some of the lands shown in the plaint had already been sold and they were not available for partition. The trial court held that items 3,7 and 11 to 14 in item No. 4 of plaint Schedule had already been sold and they were not available for partition. It was held that the suit was not barred by limitation and that items 1 to 3 were all acquired with the joint family nucleus. It was found that item 1 was a family dwelling house in which the first defendant resides and the plaintiff cannot claim any share till the first defendant continues to reside there. The claim with reference to items 5 and 6 was negatived. The court granted a decree for accounting with regard to the income. On that basis, a preliminary decree was passed. The plaintiff is aggrieved by the refusal of the court below to grant one half share in items 1 to 3 of the suit properties and is challenging the finding that the properties are all joint family properties. The plaintiff is also challenging the dismissal of the suit with reference to items 5 and 6 and the decree with reference to item No. l. According to the plaintiff, Sec. 23 of the Hindu Succession Act will not apply as item No. l is not a joint family house and the first defendant is dwelling elsewhere. The first defendant is aggrieved by the decree inasmuch as the court below has negatived his claim that the release by defendants 2 to 5 enures only in his favour. In so far as the release is concerned, Ex. B-6 is the document under which defendants 2 to 5 relinquished their interest in the property. No doubt the preamble to the document reads that it is executed in favour of the first defendant and at the end also it is recited that the releasors have no objection whatever to the releasee enjoying the property with absolute right. But, the body of the document does not contain any clause whatever conveying the interest of the releasors to the releasee as such. What all the releasors have done is to abandon their interest in the property. The relevant portion of the document reads thus: A perusal of the above recitals shows that the releasors relinquished and abandoned their interest, but did not convey it to the releasee. It is also admitted by the first defendant as D. W. I that the sum of Rs. 40,000 paid by him to the four sisters as consideration for obtaining the release was taken from out of the family funds. Hence, there is no substance in the contention of the first defendant that the release would enure only in his,favour. It is argued by learned counsel that if a release is executed by a coparcener in favour of another coparcener, then it may enure in favour of the entire joint family, but the said principle would not be applicable when there is a sole surviving coparcener and in this case the first defendant is the only surviving coparcener and the sisters are not coparceners. We do not agree. It is admitted that the releasee and the releasors are having joint interest in the property and it is not in dispute that there is one other person who is also entitled to and having interest in the property besides them. Unless the releasors conveyed their interest in the property in favour of the releasee, a mere release will enure in favour of the estate as such. The releasors are only abandoning their interest in the property. In this case, Mahalingam Chettiar died in 1968 and his wife died in 1980. There is no dispute that the parties continued to be joint and there was no division at any time. Hence, the release deed enures in favour of the remaining co-owners, namely, the first defendant and the plaintiff. We reject the contention of the first defendant as regards the effect of the release deed.
(3.) BEFORE considering the main question argued by the plaintiff as regards the character of properties in items 1 to 3, we will dispose of the other minor contentions. Items 5 and 6 are, as stated earlier, cash of Rs. 43,600 and jewels worth Rs. 53,000. There is no averment whatever in the plaint that the said items are in existence and available for division. The evidence adduced on the side of the plaintiff is absolutely worthless. There is nothing on record to prove that cash of Rs. 43,600 was available at the time of the suit. According to the plaintiff, the cash was invested by the first defendant in the business run by him under the name Madurai sakthi Calendar Company . But, the books of account relating to the said company do not show cash balance of Rs. 43,000 and odd. In any event, it should be noted that the first defendant has paid a sum of Rs. 40,000 to the other sisters from the joint funds. In those circumstances, we cannot accept the case of the plaintiff that a sum of Rs. 43,600 was available for partition among the parties. As regards jewels, the position is equally worse. There is no evidence to show that the jewels were ever in existence. P. W. I, the husband of the plaintiff, has given evidence that his mother-in-law told him about the weight and the nature of the jewels. It is purely hearsay. The plaintiff has not chosen to go into the witness box to speak about the jewels which were available in the family. If really the jewels were in existence, it is for the plaintiff to prove the same. In this case, the plaintiff has miserably failed to prove the existence of the jewels for division. Hence, that case is rejected. As regards item No. l, the court below has taken the view that Sec. 23 of the Hindu Succession Act would apply as it is a family house in which the first defendant is dwelling. The evidence on record shows that the first defendant is not living in item No. l. There is no evidence to hold that the said item is treated as family dwelling house and that the first defendant is living therein. Hence, we are of the view that the court below is wrong in holding that Sec. 23 of the Hindu Succession Act would apply. The court below has taken the view that this item was obtained by Mahalingam Chettiar in the partition between him and his brother in 1930. The said property was purchased only in 1963 under Ex. B-2. It was not one of the properties which mahalingam Chettiar got in the family partition in 1930. Hence, the decree of the court below with regard to item No. l is unsustainable and we hold that item no. 1 is also divisible and the plaintiff will be entitled to a share therein. ;