Judgment:
S.S. Subramani, J.
1. 1st defendant in O.S. No. 227 of 1989 on the file of Sub Court, Srivilliputhur is the appellant.
2. The suit is one for partition.
3. One Perumal Naicker had two sons Subba Naicker and Seeni Naicker. The 1st plaintiff is the daughter of Subba Naicker and 2nd plaintiff is one of his sons. Defendants 1 and 2 are also another son and daughter of Subba Naicker. Their mother Ananthammal died in the year 1986. It is admitted that Subba Naicker died some time in 1969. Seeni Naicker, the other son of Perumal Naicker died unmarried and issueless. In the year 1927, a partition was effected between Subba Naicker and Seeni Naicker, as evidenced by Ex. B-21. The properties allotted to Seeni Naicker were purchased by Subba Naicker on 29.9.1942, evidenced by Ex. A-1. It is the plaintiff's claim that after the death of Subba Naicker, the 1st defendant had been appropriating all the income and inspite of various demands made demanding their share, their due share has not been given to them. It is their case that even though their father has inherited the properties, it was treated as his self-acquisition and therefore, they are entitled to one fourth share each in the plaint items. It is said that the B schedule properties were acquired by the 1st defendant's wife's with the funds provided by the 1st defendant out of the plaint A schedule items. That property is also available for partition, treating it as the property of Subba Naicker and belonging to all the sharers. Over the said item also, the plaintiffs claimed an equal share.
4. In the written statement filed by the 1st defendant, he contended that as per Ex. B-21, their father Subba Naicker became the manager for the family and he came into possession vast items of properties. Apart from the income from the family properties, he did not have any other income and therefore, the properties purchased under Ex. B-21 were also treated as family properties. He also said that his father was the manager and any acquisition made by him enured to the benefit of the family. It is further said that the sale deed Ex. A-1 relates only to half share belonging to Seeni Naicker and the remaining one half share, which belonged to Seeni Naicker had devolved on the family members, as he died as a coparcener. That also enured to the benefit of the family members, according to the 1st defendant. It is further contended that the B schedule property is a self-acquisition of his wife and no portion of that property was purchased from the income from the family properties. It is contended that his wife sold all the ornaments, which were given to her at the time of marriage. The property in B schedule should be excluded from partible items. He further said that he was not taking any income from the properties. It is his case that their mother was leasing out the properties and the rent was being collected by her only, till 1986 i.e. till her death and therefore, he was not liable for accounting for the income. He prayed for the dismissal of the suit.
5. An additional pleading was also filed by the appellant stating that the 2nd plaintiff's wife has purchased certain properties out of the income, which he derived from the family properties and so that has also to be brought to the hotch-pot of the family. A reply statement was also filed by (he 2nd plaintiff denying the joint family nature of the property acquired by his wife.
6. On the above pleadings, the trial court took oral and documentary evidence. The trial court was of the view that the suit is bad for non-jointer of cause of action, partial partition, etc. and ultimately dismissed the suit. Aggrieved by the judgment, the 1st plaintiff alone filed an appeal making the 2nd plaintiff also as a respondent. The lower appellate court re-appreciated the evidence and came to the conclusion that the B schedule property is not available for partition, that each of the plaintiffs will be entitled to 4/24 share in the plaint A schedule items. It was further found that apart from the plaint schedule properties, no other property was available for partition. Regarding profits, the lower appellate court did not enter a finding; but simply said that whether the 1st defendant will be liable to account for profits and from which date he is to account will also be decided in the final decree proceedings. A preliminary decree was passed declaring the shares, as stated above. It is against that judgment, the 1st defendant has filed this second appeal, on the following substantial questions of law.
(1) Whether, the lower appellate court committed an error in misreading the oral and documentary evidence on record while reversing the findings of the trial court?
(2) Whether the lower appellate court has applied the correct principles of law in arriving at the character of the properties and the mode of acquisition of certain items claimed for partition as belonging to joint family?
7. The lower appellate court found in para 18 of the judgment that the entire A schedule properties belonged to deceased Subba Naicker, as his self-acquisition. It is seriously opposed by learned Counsel for the appellant. According to him, at the time when Ex. A-1 was obtained, their father was the manager. Long before Ex. A-1, their father had come into possession of vast items of properties belonged to the family, evidenced by Ex. B-21 partition. It is his case that when the Manager acquires properties, the legal presumption is that the properties purchased by him, go to the benefit of the family. It cannot be treated as his self-acquisition. According to me, the said contention is to be accepted. In the decision reported in Achuthan Nair v. Chinnammu Amma : [1966]1SCR454 , the Hon'ble Supreme Court has considered this point and it has been held therein thus:
Under Hindu Law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to be undivided member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. But the principle is not applied to acquisition of properties in the name of a junior member of a tarwad (anandravan) under the Marumakkathayam Law. There is no presumption either way and the question has to be decided on the facts of each case. In the case of the property acquired in the name of the karnavan, however, there is a strong presumption that it is a tarwad property and the presumption holds good unless and until it is rebutted by acceptable evidence.
[Italics supplied]
In para 10 of that judgment, their Lordships further held that a person in management is in the position of trustee and is in a fiduciary position. In that capacity also, when he acquires properties, it goes to the benefit of the family. In view of this legal presumption, the finding of the lower appellate court that Ex. A-1 properties are the self-acquisition, cannot be accepted. The properties acquired by the father under a partition and purchased by him are all family properties. If that be so, the 1st defendant and the 2nd plaintiff will be entitled to a right by birth and their father Subba Naicker was also entitled to an equal share. The three male members will be entitled to one-third each in the plaint A schedule properties. One-third share belonging to Subba Naicker, on his death, got devolved upon his widow and children under Sections 6 and 8 of the Hindu Suecession Act. They will be having shares equally. Therefore, the share of the 1st plaintiff as found by the lower appellate court will have to be reduced as 1/12th and not 1/6th, as found by the lower appellate court. The share of the 2nd plaintiff will be 1/3 + 1/12 = 5/12.
8. Regarding B schedule property, no cross appeal has been filed by the plaintiffs and therefore, the finding of the lower appellate court in that regard, is confirmed.
9. The 1st defendant will also be entitled to 5/12th share and the 2nd defendant, who is their sister, will also be entitled to 1/12th share in the plaint A schedule properties. The preliminary decree passed by the lower appellate court will stand modified accordingly.
10. The lower appellate court has committed an error on issue No. 4 before it. When it found that the 1st defendant is in possession of all the family properties, a liability to account for the income therefrom, arises. The lower appellate court has only said that the question whether the 1st defendant is liable and if so, for what period, will be decided in the final decree proceedings. This, according to me, is not a decision in accordance with law. The 1st defendant's case is that while their mother was alive, she alone was taking the income by leasing out the properties. There is no definite finding by the lower appellate court in that regard. But the trial court has entered a finding that their mother was leasing out the properties. Their mother died in 1986. Thereafter, it is not disputed that the 1st defendant alone was in possession of the entire properties at least from that date and from that date onwards, he must account for the income from the A schedule properties. I, therefore, hold that the 1st defendant/appellant is liable to account for the income from the A schedule properties from the date of death of their mother till the shares are demarcated and possession handed over to the respective sharers.
11. Counsel for the appellant also submitted that the suit is bad for partial partition. It was contended that even though their father obtained a share in the partition under Ex. B-21, that item which he obtained, is not scheduled to the plaint, but only the property, which is allotted to Seeni Naicker and purchased by him under Ex. A-1 are scheduled. This, according to him, is makes the suit not maintainable on the ground of partial partition.
12. The same is seriously opposed by the plaintiffs. According to them, all the properties, which their father obtained under Ex. B-21 were sold out even during his lifetime. When there is a dispute as to whether those items are available or not, the suit cannot be dismissed on the ground of partial partition.
13. In a decision of the Supreme Court reported in Mst. Hateshar Kuer v. Sakaldeo Singh (1969) 2 S.C.W.R. 414, the Hon'ble Supreme Court has said as follows:
The rule requiring inclusion of the entire joint estate in a suit for partition is not a rigid and in elastic rule which can admit of no exception. This rule aims at preventing multiplicity of legal proceedings which must result if separate suits were to be instituted in respect of fragments of joint estates. Normally speaking, it is more convenient to institute one suit for partition of all the joint properties and implead all the interested co-sharers so that all questions relating to the share of the various co-owners and the equitable distribution and adjustment of accounts can be finally determined. But, this being a rule dictated by consideration of practical convenience and equity may justifiably be ignored when, in a given case there are cogent grounds for departing from it.
When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by some of them that it belongs to an outsider, then a suit for partition of joint property excluding such items does not become legally incompetent because of any rule against partial partition.
In the present case, before the gifted Bangra land can legitimately be considered to be joint property available for partition the gift has to be got rid of by appropriate proceedings to which the donee would be a necessary party. That controversy may also involve other disputes which may have little to do with the pleas affecting the merits in a partition suit.
[Italics supplied]
The said decision was followed by Kerala High Court in the decision reported in Paramesara Menon v. Sachidananda Menon 1970 K.L.T. 1031, His Lordship Justice V.R. Krishna Iyer (as His Lordship then was) held that when the plaintiffs have definite case that those items are not available for partition, and it has gone out of the family, naturally a dispute arises as to whether third persons are interested over the same. Under the above circumstances, and in view of the decisions cited supra, the contention of the appellant cannot be entertained.
14. In the result, I hold that the trial court has not applied the law, while dismissing the suit and the lower appellate court also gone wrong in not applying the legal presumption regarding acquisition. In that view, the decision of the lower appellate court is to be modified. The dismissal of the suit was rightly set aside by the lower appellate court; but the share granted to the parties by the lower appellate court is not in accordance with law. I therefore, allow the second appeal in part and hold that the 1st plaintiff will be entitled to 1/12th share, 2nd plaintiff to 5/12th share, 1st defendant to 5/12th share and the 2nd defendant to 1/12th share, in the suit A schedule properties. The finding of the lower appellate court as regards the B schedule property is confirmed. I also hold that the 1st defendant is liable to account for the income from the properties from the date of death of his mother and necessary provision will also be made regarding the quantum and the manner of recovery, while passing the final decree. Since the parties are close relations, I direct the parties to bear their costs throughout.