Judgment :- 1. Plaintiffs 2 to 6 in the suit are the appellants before this court. The respondents herein are defendants 1 to 12 and 14 to 16. Since defendants 13, 17 and 18 remained ex parte before the lower court, they are not made as parties to the appeal. As the 6th respondent died, his legal representatives have been brought on record as respondents 16 to 25 by an order of court. The suit filed by the plaintiffs for partition; for mesne profits and accounts was dismissed on merits. Hence the present appeal. It may be noticed here that the suit was originally filed by one Govindarajulu Naidu as the sole plaintiff and since he died pending suit, his legal representatives have been brought on record as plaintiffs 2 to 6. Therefore in this judgement the parties to the appeal would hereinafter be referred to in the same rank in which they were on record in the plaint. The pleadings of the parties before the lower court are lengthy pleadings and they are in English. As those pleadings form part of the records, I am inclined to state hereunder only the concised case of the parties before the lower court. 2. The case of the plaintiffs is as follows: (a) The first plaintiff and the first defendant are brothers, the former being elder. The second and the third defendants are the son and wife respectively of the first defendant. Venkatasamy Naidu is the father of the first plaintiff and the first defendant. He died on 05.09.74 at the age of 85. His wife is Thaiammal. She pre-deceased him in the year 1973. Venkatasamy Naidu had ancestral properties described in Schedule “A” to the plaint. He appears to have been carrying on some money dealings. In order to expand the said business, he sold the ancestral properties shown as Item Nos. 2, 3 & 4 in Schedule “A” under three sale deeds dated 11.07.18, 06.05.20 and 06.05.20 for a sum of Rs. 2,000/-; Rs. 700/- and Rs. 3,000/- respectively. With the sale proceeds he conducted money lending business for and on behalf of the joint family. With the funds so generated, he purchased the properties described in Schedule “B” under five sale deeds dated 02.10.25, 16.02.26, 25.02.32, 28.08.38 and 04.02.42 respectively . 2,000/-; Rs. 700/- and Rs. 3,000/- respectively. With the sale proceeds he conducted money lending business for and on behalf of the joint family. With the funds so generated, he purchased the properties described in Schedule “B” under five sale deeds dated 02.10.25, 16.02.26, 25.02.32, 28.08.38 and 04.02.42 respectively . All these properties having been acquired from and out of the income from money lending business and other joint family properties, they are impressed with the character of joint family properties. (b) In 1934 Venkatasamy Naidu entered into a partnership with three persons namely, Muthu Naidu, Narayana Naidu and Govindasamy Naidu to conduct a trade in cotton under the name and style of K. Muthu Naidu & Company at Periyanaickenpalayam. Muthu Naidu and Narayana Naidu are the brothers of his wife while Govindasamy Naidu is his co-brother. In that business Venkatasamy Naidu was entitled to 1/4th share and he invested joint family funds and also joint family properties detailed as Item Nos. 1(a) and (b) of Schedule “A”. These two items are the only properties remaining as ancestral properties after the sales referred to earlier. “B” Schedule properties were also invested in the business. “B” Schedule properties are properties purchased from joint family nucleus. This business also flourished well and other immovable properties and shares in several companies were acquired in the name of the firm or in the name of one or other of the partners. Muthu Naidu died on 27.05.54. The first plaintiff was also participating in the said business in the place of his father and on behalf of the joint family. Final accounts of the business was taken resulting in the immovable properties and company shares belonging to the partnership being divided on 14.12.66 as evidenced by a deed of partition. Three sons of Muthu Naidu and the other three surviving partners were parties to the said document. The properties described in Schedule “E” to that document were allotted to Venkatasamy Naidu, father of the first plaintiff and the first defendant. The said properties comprised in Schedule “E” to that document are described in Schedules “C”, “D” & “E” to the plaint. (c) Some of the ancestral properties belonging to Venkatasamy Naidu were exchanged with the other partners in the business, monetary compensation being paid among them to equalise the share. The said properties comprised in Schedule “E” to that document are described in Schedules “C”, “D” & “E” to the plaint. (c) Some of the ancestral properties belonging to Venkatasamy Naidu were exchanged with the other partners in the business, monetary compensation being paid among them to equalise the share. Some of the properties in Item No. 1 of Schedule “A” and some of the “B” Schedule properties were allotted to other partners in that deed of partition dated 14.12.1966. Likewise the properties of other partners of the partnership were allotted to Venkatasamy Naidu. The said partition deed was more or less in the nature of an exchange. “F” Schedule properties to the plaint are the shares. This was allotted to Venkatasamy Naidu, though such allotment is not reflected in the partition deed. Thus the properties described in Schedules “C” to “F” are the joint family properties in which the first plaintiff has 1/3rd share; the first defendant has 1/3rd share and their father Venkatasamy Naidu has the remaining 1/3rd share. The properties described in Schedules “C” to “F” alone remain as joint family properties, as the properties mentioned in “A” and “B” Schedules have merged in the general partition referred to earlier. Venkatasamy Naidu and his two sons were enjoying “C” to “F” Schedule properties together. Venkatasamy Naidu used to live with the first plaintiff and more often with the first defendant. The first defendant was dominating the will of Venkatasamy Naidu, as he was in his fold. Taking advantage of his old age and the situation in which he was placed, the first defendant with a view to get a major portion of the properties, collusively and fraudulently brought about several transactions namely, sale of Item No(a) of “C” Schedule under a sale deed dated 14.09.67 to the 4th defendant; sale of Item No. 2(b) of “C” Schedule under a deed of sale dated 03.07.68 to the 5th defendant for a consideration of Rs. 2,500/- and Rs. 10,500/- respectively. The sales are not binding on the first plaintiffs share, as there was neither necessity nor the estate received any benefit. The first defendant had taken the money for himself. The price reflected in the sale deeds is low and the first defendant had been benefitted out of the two sales. 2,500/- and Rs. 10,500/- respectively. The sales are not binding on the first plaintiffs share, as there was neither necessity nor the estate received any benefit. The first defendant had taken the money for himself. The price reflected in the sale deeds is low and the first defendant had been benefitted out of the two sales. (d) On 27.03.70 Venkatasamy Naidu effected a partition and it was brought about at the instance of the first defendant. In that partition Venkatasamy Naidu wrongly described the properties as his self acquired. But however there is an admission that he and his two sons are in enjoyment of the properties at all times. Under that partition Item Nos. 1 and 3 of “C” Schedule were allotted to Venkatasamy Naidu; “D” Schedule properties to the first plaintiff and the properties described in “E” Schedule to the plaint to the second defendant. The first defendant was totally excluded from any favour in that document. The exclusion was because the first defendant was heavily indebted and he was planning to cheat his creditors. Father had no right to unilaterally effect such partition. The very fact that he had not made his sons as co-executants of that document would show the lack of bona fides on his part. The properties allotted to the first plaintiff under that partition are dry lands with no irrigation facility and a small house, comparitively the value of which is less than the value of the properties allotted to the father and the second defendant. The value of the properties that fell to the share of the father is stated to be Rs. 1,55,914/-. The value of the properties allotted to the second defendant is stated to be Rs. 1,80,170/-. The value of the properties given to the first plaintiff is stated to be Rs. 49,500/-. Therefore it is clear that the partition is unfair, unequal, fraudulent and dishonest and as such it is not binding on the first plaintiff. The first plaintiff is entitled to ignore the same and claim a division of all the properties treating them as joint family properties in an equitable manner. Not satisfied with such a division, the first defendant using undue influence in playing fraud upon his father, got a “will” executed by his father in respect of his share of properties in favour of the third defendant. Not satisfied with such a division, the first defendant using undue influence in playing fraud upon his father, got a “will” executed by his father in respect of his share of properties in favour of the third defendant. The “Will” is not true, valid and binding on the first plaintiff, as it is the result of fraud, undue influence and coercion having been played on the executants. The first defendant was in a dominating position with his father, who was old and having a feeble health. Not only that, the first defendant made Venkatasamy Naidu execute four sale deeds regarding the properties in Item No. 3 of “C” Schedule. The sale deeds are dated 25.10.72 in favour of the sixth defendant for a sum of Rs. 9,300/-; 01.03.74 in favour of the seventh defendant for a sum of Rs. 7,000/-; 13.07.73 in favour of the eighth defendant for a sum of Rs. 10,000/ - and 13.07.73 in favour of the ninth defendant for a sum of Rs. 45,200/-. All the sale deeds are not valid and binding on the first plaintiff. Father had no right to alienate any of the joint family properties, as there was neither necessity nor the estate received any benefit out of it. The sale proceeds under the four sale deeds referred to above were converted by the first defendant for his own use. The properties being joint family properties in nature, the first plaintiff is entitled to a 1/2 shar e in Item No. 1 of “C” Schedule and in all the properties described in Schedules “D” to “F”. The first plaintiff is entitled to 1/3rd share in Item Nos. 2 and 3 of “C” Schedule, which since had been alienated. Venkatasamy Naidu had been assessed under the Income Tax Act as a Hindu Undivided Family for the assessment year 1968-1969. Venkatasamy Naidu was also assessed under the Agricultural Income Tax Act on the basis of the partition, which assessment was later on reopened on the ground that the partiti on created by the father was not genuine and consequently father came to be taxed treating all the properties as joint family properties. The first plaintiff issued a notice through a lawyer on 29.09.71 claiming partition. As the demand was not complied with, the suit for partition. 3. The first plaintiff issued a notice through a lawyer on 29.09.71 claiming partition. As the demand was not complied with, the suit for partition. 3. Defendants 1 to 3 filed a common written statement and their case is as follows: (a) There are discrepancies as between the properties described in “A” Schedule and in the mortgage referred to regarding the extent available; survey numbers and other similar details. It is denied that Venkatasamy Naidu sold the properties as averred in the plaint. It is also denied that with the sale proceeds Venkatasamy Naidu carried on money lending business for and on behalf of the joint family. The sale deed of the year 1918 came to be executed for discharging the earlier mortgage of the year 191 5. The sale under the deed dated 06.05.20 for Rs. 3,000/- was necessitated because of inconvenient enjoyment of the property comprised therein. In respect of the other sale deed dated 06.05.20 for a sum of Rs. 700/- no cash consideration was actually received by Venkatasamy Naidu. The family did not have any money lending business. Venkatasamy Naidu did not have the resources for such a business. Therefore there is no question of Venkatasamy Naidu having any nucleus in his hands, which was surplus enoug h, to buy “B” Schedule properties. The allegation to the contra is false. “B” Schedule properties are not joint family properties, as they were never acquired out of any income belonging to the joint family. Muthu Naidu was conducting a business in the name of Sri. Radhakrishna Vilasa Nidhi Limited and also extensive trade in cotton. As Venkatasamy Naidu was having only meagre means and he was not having resources of his own, Muthu Naidu and his brother Narayana Naidu associated Venkatasamy Naidu in their business activities. It was Muthu Naidu, who was instrumental in the purchase of the properties referred to in Paragraph 6 of the plaint. Though the purchases were in the name of Venkatasamy Naidu, yet it was intended for the benefit of all of them. Those properties were purchased out of the income from the joint venture of Muthu Naidu, Narayana Naidu, Venkatasamy Naidu and Govindasamy Naidu. As such each one of them has his individual share in the properties so purchased. (b) The joint venture referred to above was in existence even prior to 1934 i.e., from 1925 or so. Those properties were purchased out of the income from the joint venture of Muthu Naidu, Narayana Naidu, Venkatasamy Naidu and Govindasamy Naidu. As such each one of them has his individual share in the properties so purchased. (b) The joint venture referred to above was in existence even prior to 1934 i.e., from 1925 or so. Muthu Naidu and Narayana Naidu were already carrying on business and at the instance of their father, Venkatasamy Naidu and Govindasamy Naidu, both brothers-in-law of the former too (Venkatasamy Naidu and Govindasamy Naidu married the sisters of Muthu Naidu and Narayana Naidu), were taken along with them in the said business. Under such circumstances, there was no need for Venkatasamy Naidu or Govindasamy Naidu to invest any capital in the said firm. It is denied that Venkatasamy Naidu invested joint family funds in the said business. None of the immovable properties as alleged in the plaint were ever invested by Venkatasamy Naidu in the said business. Those properties could not have been invested in the business and used as such. As already stated, “B” Schedule properties are joint assets of all the partners purchased from the business and not purchased with any ancestral joint family nucleus by Venkata samy Naidu. Venkatasamy Naidu was in the business as a partner in his individual and personal capacity and not representing any joint family. The first plaintiff had misconstrued the deed dated 14.12.66 and therefore his case that the property allotted to Venkatasamy Naidu under the said deed are impressed with joint family nature is false and incorrect. Those properties were the separate and absolute properties of Venkatasamy Naidu, which he derived by his personal association in the business referred to above. Therefore they are his self acquisitions. Venkatasamy Naidu never had any joint family resources at his command, which generated such funds, using which any property could have been acquired by him for and on behalf of the joint family. Being his self acquired properties, he dealt with it under the partition deed dated 27.03.70. The properties described in Schedules “C” to “F” were never joint family properties in the hands of Venkatasamy Naidu, the first defendant and their father. The first defendant never played fraud in bringing about the partition deed dated 27.03.70 and all the allegations made to the contra are false. The properties described in Schedules “C” to “F” were never joint family properties in the hands of Venkatasamy Naidu, the first defendant and their father. The first defendant never played fraud in bringing about the partition deed dated 27.03.70 and all the allegations made to the contra are false. Venkatasamy Naidu, out of his own volition and in his absolute discretion, dealt with the property as he had done under the partition deed dated 27.03.70. The sales effected by Venkatasamy Naidu and referred to in the plaint therefore cannot be attacked on any ground known in law. Being his self acquired properties, he is entitled to deal with it as he liked and therefore the plaintiff cannot question it. Venkatasamy Naidu dealt with all the sale proceeds by himself and therefore the first defendant had no occasion to deal with it in any manner. Venkatasamy Naidu in fact provided substantial cash to the first plaintiff and he performed the marriages of his daughters as well. (c) The document dated 27.03.70 executed by Venkatasamy Naidu in respect of his self acquired properties is more in the nature of a settlement, though styled as a partition. In bringing about that document, law does not require Venkatasamay Naidu to get the consent of his sons. Venkatasamy Naidu treated the beneficiaries under the document dated 27.03.70 in an equal manner. The first plaintiff left the family several decades earlier and at that time he had three acres of land in Periyanaickenpalayam giv en to him by his father. He developed that and acquired considerable properties in the name of his wife. The exclusion of the first defendant from the benefits under the document dated 27.03.70 is nothing but natural, since the second defendant, who is the son of the first defendant, had been given properties under it. The subsequent “will” executed by Venkatasamy Naidu on 20.04.70 is also legal and the first plaintiff cannot question it. The “will” is true, valid and binding on all parties. No fraud, undue influence, coercion or any such thing was exercised on Venkatasamy Naidu to bring about the “Will”. Proceedings relating to income tax and agricultural tax referred to in the plaint have no relevance to decide the character of the properties held by Venkatasamy Naidu and the rights of the parties to the suit. No fraud, undue influence, coercion or any such thing was exercised on Venkatasamy Naidu to bring about the “Will”. Proceedings relating to income tax and agricultural tax referred to in the plaint have no relevance to decide the character of the properties held by Venkatasamy Naidu and the rights of the parties to the suit. The plaintiff is in possession of the properties allotted to him by Venkatasamy Naidu under the document dated 27.03.70. To the notice dated 29.09.71 issued by the first plaintiff, the defenda nt sent a suitable reply. The suit is speculative in nature. The first plaintiff had not chosen to question the document dated 27.03.70 during the life time of Venkatasamy Naidu, as he was getting substantial benefits from him and he had come forward with the present suit only after his death purely as a speculative venture. The first plaintiff was aware about all the transactions brought about by Venkatasamy Naidu and he had never raised any protest or objection at any time regarding those transactions. The plaintiff had therefore acquiescised in all the transactions effected by Venkatasamy Naidu including the document dated 27.03.70. He had been silent throughout. Such acquiescence on his part would disentitle him from claiming any relief in the suit. The payment of court fee, as though the plaintiff is in possession of the suit property, is not correct. The suit therefore must be dismissed. The first defendant filed an additional written statement adopted by defendants 2 and 3 stating that after the death of the first plaintiff, plaintiffs 2 to 6 have no surviving cause of action to prosecute the suit. (4) Defendant No. 6 filed a separate written statement contending inter alia as follows: It is denied that Venkatasamy Naidu had any ancestral property as described in Schedule “A” to the plaint. Venkatasamy Naidus family never carried on any business as alleged in the plaint and as such he had not sold any properties to expand the said business. Venkatasamy Naidu did not represent the family in the partnership business of Muthu Naidu & Company. The suit properties are not joint family properties but they are the separate and absolute properties of Venkatasamy Naidu. Venkatasamy Naidu brought about the transactions referred to in the plaint on his own volition and in his absolute discretion, as he had the right to deal with those properties. The suit properties are not joint family properties but they are the separate and absolute properties of Venkatasamy Naidu. Venkatasamy Naidu brought about the transactions referred to in the plaint on his own volition and in his absolute discretion, as he had the right to deal with those properties. Therefore the first plaintiff cannot question it. The document dated 27.03.70 brought about by Venkatasamy Naidu and the “will” dated 20.04.70 executed by Venkatasamy Naidu cannot be attacked on any ground known in law. The “will” is true, genuine and binding on all parties, as it is not surrounded by any suspicious circumstances. The defendant had p urchased 2.67-3/4 acres in S. No. 26 Gudalur Village on 25.10.72 from Venkatasamy Naidu for a sum of Rs. 9,300/-. The sale is true and genuine. The price paid by the defendant is over and above the market value prevailing at that time. The price paid under the document per acre comes to Rs. 3,500/- while the market value at that time per acre was only Rs. 2,500/-. The property purchased by the defendant is the self acquired property of Venkatasamy Naidu. Even otherwise the property was sold for the benefit and necessity of the family and therefore binding on the first plaintiff. The property sold is the dry land without any source of irrigation. It was in a drought stricken area unfit for cultivation. The price paid to Venkatasamy Naidu would fetch more income by way of return than the land sold itself. The proceedings of the Income Tax Department and the agricultural income tax officer cannot change the character of the property in the hands of Venkatasamy Naidu. The first plaintiff is not entitled to claim mesne profits from this defendant. The defendant had improved the land by levelling the same for cultivation purposes; had laid underground pipeline from the adjoining land and is now cultivating the same. He had planted 220 coconut saplings in the land and he had invested a sum of Rs. 10,000/-. The first plaintiff had not questioned the sale in favour of the defendant till he filed a suit in January 1975. This itself exposes the falsity of the case of the plaintiff. He had planted 220 coconut saplings in the land and he had invested a sum of Rs. 10,000/-. The first plaintiff had not questioned the sale in favour of the defendant till he filed a suit in January 1975. This itself exposes the falsity of the case of the plaintiff. (b) Defendant No. 7 filed a separate written statement contending inter alia as follows: He had taken a defence more or less on the same lines as that of defendant No. 6 on the nature of the properties in the hands of Venkatasamy Naidu and the effect of the transactions brought about by Venkatasamy Naidu. He had also defended the “will” executed by Venkatasamy Naidu. Apart from that he had contended as follows: This defendant purchased an extent of 3.42 acres in Gudalur Village on 01.03.74 for a sum of Rs. 7,000/- from Venkatasamy Naidu. The sale is true and valid. The land purchased by this defendant is situated in an interior area sandwiched between the existing land of the 6th defendant and this defendant. The location of the land referred to above did not encourage any third party from purchasing the same. The guideline value in that locality at that time was only Rs. 2,500/- per acre. The land was not fit for cultivation. The properties sold are the self acquired properties of Venkatasamy Naidu. In any event the sale was for the benefit and necessity of the family. The land sold to this defendant has no irrigation source at all and it is uneven. It is in a dry area. Therefore the price offered by this defendant to Venkatasamy Naidu is fair and reasonable. The defendant had improved the land by levelling it and made it fit for cultivation. He had dug a well to the depth of 170 feet and installed a 15 H.P. Motor. He had spent in all a sum of Rs. 25.000/- towards the same. The first plaintiff having attacked the document dated 27.03.70 as unfair and fraudulent, had failed to sue for setting aside the document within three years from the date of the deed itself. On the date of filing the present suit, that relief stood barred by law of limitation. Therefore the document dated 27.30.70 is binding on the first plaintiff. Hence the suit must be dismissed. On the date of filing the present suit, that relief stood barred by law of limitation. Therefore the document dated 27.30.70 is binding on the first plaintiff. Hence the suit must be dismissed. Defendant No. 8 filed a written statement contending inter alia as follows: He had taken a similar defence as that of the other defendants on the nature and character of the property in the hands of Venkatasamy Naidu. In addition to that he had taken the following defence: Venkatasamy Naidu was a partner in Muthu Naidu & Company in his individual capacity and not for and on behalf of the family. No family funds were invested in the business. Whatever he earned in that business was his separate property. Muthu Naidu died in the year 1954 and his sons and the surviving partners continued the business. The properties of the firm were divided under a deed dated 14.12.66. The properties that were allotted to Venkatasamy Naidu in that deed are his separate properties. The sales effected by Venkatasamy Naidu on 14.09.67 and 03.07.68 are in respect of properties allotted to him in the partition. The document dated 27.03.70 executed by Venkatasamy Naidu is valid and binding on the first plaintiff. The first plaintiff was treated equally on par with the other beneficiaries. Venkatasamy Naidu had every right to effect a partition so as to bind himself and his sons. The partition was fair and reasonable. Venkatasamy Naidu effected partition taking into account, among other things, the relative fertility and utility of the properties covered under the document. The first plaintiff has to necessarily sue for setting aside the document dated 27.03.70, which he had failed to do in this case. Therefore the suit as framed is bad in law. He had not taken any action to set aside that document within the period of limitation. The sale in favour of this defendant was subsequent to the plaintiff losing his right to question the document dated 27.03.70 by efflux of time. In any event the sale was for binding necessity and for the benefit of the family. The property sold to this defendant is the dry land and it is interior without any source of irrigation at all. The yield was very poor. The price paid by this defendant to Venkatasamy Naidu is fair and reasonable. In any event the sale was for binding necessity and for the benefit of the family. The property sold to this defendant is the dry land and it is interior without any source of irrigation at all. The yield was very poor. The price paid by this defendant to Venkatasamy Naidu is fair and reasonable. The defendant after purchase had erected a modern factory investing several lakhs of rupees in that project. The plaintiff knew it. However the plaintiff had not questioned either the purchase or the construction activities of the 8th defendant at any point of time prior to filing the suit. He is therefore guilty of acquiescising in the act of this defendant. In equity the property purchased by this defendant should be allotted to the share of Venkatasamy Naidu if the plaintiff succeeds. (d) Defendant No. 9 filed a separate written statement taking a similar stand on the merits of the plaintiffs claim as one taken by the other contesting defendants. In addition to that he contended as follows: This defendant purchased an extent of 3.76 acres of dry land in S.F. No. 137 from Venkatasamy Naidu for a sum of Rs. 45,200/- under a deed of sale dated 13.07.73 followed by a rectification deed dated 19.12.73. The suit properties were never the ancestral properties or the joint family of Venkatasamy Naidu. Venkatasamy Naidu was a partner in Muthu Naidu & Company in his individual capacity only and not in any other capacity. Therefore whatever was allotted to him under the document of the year 1966 are the self acquired properties of Venkatasamy Naidu. Under the document dated 27.03.70 Venkatasamy Naidu treated the plaintiff equally on par with the others. Venkatasamy Naidu had every right to effect a partition to bind himself and his sons. The first plaintiff ought to have prayed for a relief to set aside the document dated 27.03.70, which he had not done and therefore the suit is liable to be dismissed. On the day when he filed the present suit the relief to set aside that document stood barred by the law of limitation. The price paid by this defendant to Venkatasamy Naidu is fair and reasonable. After purchase, this defendant had spent nearly Rs. 30 lakhs in erecting building and installing plant and machineries. Considerable improvement had been made by this defendant over the properties purchased by him. The price paid by this defendant to Venkatasamy Naidu is fair and reasonable. After purchase, this defendant had spent nearly Rs. 30 lakhs in erecting building and installing plant and machineries. Considerable improvement had been made by this defendant over the properties purchased by him. All along the first plaintiff had acquiescised in the acitivities of this defendant, which would disable him from getting any relief in the suit. In equity, if the plaintiff succeeds, the property purchased by this defendant should be allotted to the share of Venkatasamy Naidu. (e) Defendant Nos. 10 and 11 filed a separate written statement contending that as no relief is asked for against any of them, they are unnecessary parties to the suit. Defendant No. 12 had also taken a similar stand in his written statement. So is the statement of defendant No. 14. Defendant No. 15 had also taken a similar stand in his separate written statement. Likewise defendant No. 16 also filed a written statement contending that he is an unnecessary party to the suit. 5. On these pleadings, the learned trial Judge framed the following issues: Whether the properties described in Schedules “C” to “F” are the joint family properties of Venkatasamy Naidu or his self acquired properties? (ii) Whether the partition deed dated 27.03.70 executed by Venkatasamy Naidu is true, valid and binding on the plaintiff? (iii) If the answer to the above issue is in the affirmative, then is it in the nature of a settlement deed? (iv) Whether the sales in favour of defendants 4 to 9 are true, valid and binding on the plaintiff? (v) Whether the “will” executed by Venkatasamy Naidu is true, valid and binding on the plaintiff? (vi) Whether the plaintiff is entitled to any share in the shares described in Schedule “F” to the plaint? (vii) Whether defendants 1 to 3 are bound to give accounts to the plaintiff? (viii) Whether the plaintiff is entitled to past mesne profits and if so, from whom and for what period? (ix) What is the relief to which the plaintiff is entitled to? Additional issues framed on 30.08.76 are as follows: (x) Whether the sales effected by Venkatasamy Naidu in favour of defendants 6 and 7 on 25.10.72 and 01.03.74 are true, valid and binding on the plaintiff? (xi) Have not defendants 6 and 7 made improvements to the property purchased by them? Additional issues framed on 30.08.76 are as follows: (x) Whether the sales effected by Venkatasamy Naidu in favour of defendants 6 and 7 on 25.10.72 and 01.03.74 are true, valid and binding on the plaintiff? (xi) Have not defendants 6 and 7 made improvements to the property purchased by them? On 09.12.76 an additional issue was framed and it is as follows: (xii) Whether the court fee paid on the plaint is correct? On 03.12.79 the following additional issues were framed: (xiii) Is not the suit liable to be dismissed for reasons stated in Paragraph 12 of the written statement of defendant No. 8? (xiv) Is not the suit barred by limitation in view of the stand taken by defendant No. 8 in Paragraph 13 of his written statement? (xv) Is not defendant No. 8 a bona fide purchaser for consideration and to what relief he is entitled to? (xvi) Are not defendants 6 and 7 bona fide purchasers for consideration and to what relief they are entitled to? On 04.11.80 the following additional issue was framed: (xvii) Is it true that Venkatasamy Naidu had given his share of properties to the third defendant and whether it binds the plaintiff? On the side of the plaintiffs, two witnesses were examined as P.Ws. 1 and 2. P.W.1 is the deceased first plaintiff. On their side Exs.A.1 to A.62 have come to be marked. On the side of the defendants, 10 witnesses were examined as D.Ws.1 to 10, out of whom D.W.2 is the second defendant himself. Exs.B.1 to B.68 have come to be marked on their side. The learned trial Judge answered the issues framed by him in the following manner: On Issue No.(i) he held that the properties are the self acquired properties of Venkatasamy Naidu. On Issue Nos. (ii) and (iii) the answer went in favour of defendants 1 to 3 and against the plaintiffs. On Issue No.(xiii) the learned trial Judge held that the failure to pray for setting aside the document dated 27.03.70 is fatal and therefore the suit must fail. On Issue No.(xiv) the learned trial Judge held that the suit is barred by limitation. On Issue No.(v) the learned trial Judge held that the “will” is valid, true and binding on the plaintiffs. On Issue Nos.(iv), (x), (xi), (xv) & (xvi) the learned trial held in favour of the defendants. On Issue No.(xiv) the learned trial Judge held that the suit is barred by limitation. On Issue No.(v) the learned trial Judge held that the “will” is valid, true and binding on the plaintiffs. On Issue Nos.(iv), (x), (xi), (xv) & (xvi) the learned trial held in favour of the defendants. On Issue No.(xii) it was held that the court fee paid is correct. On Issue Nos.(vi) and (xvii) it was held that the plaintiffs are not entitled to any relief. On Issue Nos.(vii) and (viii) the learned trial Judge held that the plaintiffs are not entitled to any relief. Accordingly the suit was dismissed. 6. Mr. S.V. Jayaraman learned senior counsel appearing for the appellants mainly put forward the following arguments: Venkatasamy Naidu had substantial ancestral properties which he got in the partition effected between him and his brothers. Ex.A.1 establishes this position beyond doubt. By effecting sales under Exs.A.2 to A.4 Venkatasamy Naidu was in possession of sale proceeds. Even after effecting the sales, there were ancestral properties in his hands. Venkatasamy Naidu was doing money lending business and he was able to generate funds from that business as well. Thus there was surplus funds in the hands of Venkata samy Naidu, which he utilised in purchasing “B” Schedule properties. He put the ancestral properties described in Schedule “A” and the properties purchased from ancestral nucleus, which is shown as Schedule “B” properties as his capital in the partnership business of Muthu Naidu & Company. Under the document of the year 1966 several properties were allotted to Venkatasamy Naidu. Some of the joint family properties possessed by him were dealt with under the said document and they were allotted to the shares of other partners. Some properties which do not belong to the joint family of Venkatasamy Naidu and which belong to the other partners were allotted to Venkatasamy Naidu in the said partition. Since joint family capital had gone into the said business, whatever properties that were allotted to him under the 1966 document would also be impressed with the character of joint family properties. Venkatasamy Naidu, which he utilised in purchasing “B” Schedule properties. He put the ancestral properties described in Schedule “A” and the properties purchased from ancestral nucleus, which is shown as Schedule “B” properties as his capital in the partnership business of Muthu Naidu & Company. Venkatasamy Naidu, which he utilised in purchasing “B” Schedule properties. He put the ancestral properties described in Schedule “A” and the properties purchased from ancestral nucleus, which is shown as Schedule “B” properties as his capital in the partnership business of Muthu Naidu & Company. Under the document of the year 1966 several properties were allotted to Venkatasamy Naidu. Some of the joint family properties possessed by him were dealt with under the said document and they were allotted to the shares of other partners. Some properties which do not belong to the joint family of Venkatasamy Naidu and which belong to the other partners were allotted to Venkatasamy Naidu in the said partition. Since joint family capital had gone into the said business, whatever properties that were allotted to him under the 1966 document would also be impressed with the character of joint family properties. Venkatasamy Naidu had no right to bind the plaintiff by executing the document dated 27.03.70. In any event the said document is bad in law on account of it being unequal and unfair in its terms. The plaintiff repudiated the document dated 27.03.70 and it satisfies the requirement of law as far as he is concerned. He is not expected to take any further step to set aside that document itself and it is sufficient for him if he files a suit for partition, as he had done in this case. The suit cannot fail simply because the deceased first plaintiff had not asked for any relief to set aside the document dated 27.03.70. Law does not require such a relief to be prayed for by the aggrieved party and if the aggrieved party repudiates the said document, it is a sufficient requirement in the eye of law. The document dated 27.03.70 contains an apparent material on the face of it, which shows that it is unequal in terms. Therefore the plaintiffs are entitled to succeed. Mr. S. Gopalaratnam learned senior counsel appearing for respondents 2 and 3 would contend that mere marking of documents by itself would not amount to proof of their contents. Therefore Ex.A.1 by itself would not show that Venkatasamy Naidu was possessed of any ancestral properties. Therefore the plaintiffs are entitled to succeed. Mr. S. Gopalaratnam learned senior counsel appearing for respondents 2 and 3 would contend that mere marking of documents by itself would not amount to proof of their contents. Therefore Ex.A.1 by itself would not show that Venkatasamy Naidu was possessed of any ancestral properties. Assuming he was possessed of ancestral properties, yet there is absolutely no evidence to show as to what is the nature of those properties; how they were exploited; what was the expenditure incurred in exploiting the property; what was the income therefrom and what was the surplus left in the hands of Venkatasamy Naidu. There are inherent materials in the document itself which would show that the family of Venkatasamy Naidu was struggling to meet both ends. Ex.A.1 shows that the family debt of Venkatasamy Naidu (family of Venkatasamy Naidu and his brother) was already more than two years old on the date of Ex.A.1 and even that small debt of Rs. 500/- the family could not clear. The sale of the properties under Exs.A.2 to A.4 would again expose the case of the plaintiff that the family was having some surplus resources at their hands, which went towards the purchase of various other properties. According to Mr. S. Gopalaratnam learned senior counsel, Venkatasamy Naidu was not able to discharge even some sundry debt of Rs. 500/- and the sales effected by him as referred to in the plaint only shows that nothing was moving well for Venkatasamy Naidu. Venkatasamy Naidu had not put any capital at all in the firm of Muthu Naidu & Company. In fact the brothers-in-law of Venkatasamy Naidu were carrying on business even from 1923 or so and it is in that business Venkatasamy Naidu and D.W.1 were taken as partners by Muthu Naidu and his brother. Venkatasamy Naidu and D.W.1 were the sons-in-law of the parents of Muthu Naidu and his brother. The plaintiff had not established any contribution at all towards capital in the said firm. All the purchases referred to in the plaint were not made out of any joint family funds by Venkatasamy Naidu but all those purchases were made out of the income from the business in which Venkatasamy Naidu and D.W.1 were associating themselves with Muthu Naidu and his brother from the year 1923 onwards. All the purchases referred to in the plaint were not made out of any joint family funds by Venkatasamy Naidu but all those purchases were made out of the income from the business in which Venkatasamy Naidu and D.W.1 were associating themselves with Muthu Naidu and his brother from the year 1923 onwards. The business was never commenced in the year 1934 and it has been in existence even in the year 1923. Mere registration of the firm in the year 1934 would not by itself show that the business was commenced only at that time. The document executed by the father on 27.03.70 is legal, valid and it is binding on all persons concerned till it is set aside. No relief had been prayed for in the suit to set aside that document on any ground known in law. Therefore the suit without such a relief is bad in law. On the day when the suit was filed, the plaintiffs claim to pray for such a relief stands barred under Article 59 of the Limitation Act. Mere repudiation alone by the deceased first plaintiff would not be sufficient in the eye of law and he ought to have asked for the relief of setting aside the said document within the time prescribed by law. The evidence on record estab-lishes beyond doubt that the properties of Venkatasamy Naidu, which he got under the partition deed of the year 1966, are his self acquisitions. Looking from any angle, the suit must fail. Mr. N. Varadarajan learned counsel appearing for some of the other defendants, who had purchased the property, while adopting the arguments of Mr. S. Gopalaratnam learned senior counsel would contend that his clients have made substantial improvements to the properties purchased by them by spending considerable sums of money. The plaintiff is guilty of acquiescising in the purchase by them and their conduct in improving the properties later on. Therefore in the event of the plaintiff being given the relief in the suit as prayed for, then on principles of equity the properties purchased by them shall be allotted to the share of their vendor. Mr. The plaintiff is guilty of acquiescising in the purchase by them and their conduct in improving the properties later on. Therefore in the event of the plaintiff being given the relief in the suit as prayed for, then on principles of equity the properties purchased by them shall be allotted to the share of their vendor. Mr. S.V. Jayaraman learned senior counsel appearing for the appellants in reply reiterated that unless there is a Statutory obligation imposed on the plaintiffs to seek to set aside the document dated 27.03.70, it cannot be said that the failure to ask for such a relief would result in the dismissal of the suit. 7. Having regard to the arguments advanced by the learned senior counsel on either side, I went through the pleadings. In my opinion, the following issues alone arise for consideration in this appeal: (a) Whether the suit properties are the ancestral and joint family properties of Venkatasamy Naidu or are they his separate properties? (b) If there were ancestral properties in the hands of Venkatasamy Naidu even then Whether the ancestral and joint family properties were of such a substantial value which enabled Venkatasamy Naidu to make subsequent acquisitions? (c) What is the legal effect of the document dated 27.03.70 executed by Venkatasamy Naidu and exhibited in this case as Ex.A.13? (d) Is the suit without a prayer to set aside the document dated 27.03.70 bad in law? (e) Is the suit barred by limitation? (f) Has not the first plaintiff accepted and acted upon the document dated 27.03.70 and if so, on the principles of law of acquiescence, is he disabled from getting any relief in the suit? (g) Is not the “will” dated 20.04.70 executed by Venkatasamy Naidu in favour of defendant No. 3 true, valid and binding on the parties? (h) Whether the sales in favour of defendants 4 to 9 are true, valid and binding? (i) Have not defendants 8 and 9 made improvements to the property purchased by them, which would enable them to have it allotted to their vendor on principles of equity? (j) Is the partition deed dated 27.03.70 is bad in law being unequal and unfair?. (k) To what other relief the plaintiffs are entitled to? 8. (i) Have not defendants 8 and 9 made improvements to the property purchased by them, which would enable them to have it allotted to their vendor on principles of equity? (j) Is the partition deed dated 27.03.70 is bad in law being unequal and unfair?. (k) To what other relief the plaintiffs are entitled to? 8. The sheet anchor of the plaintiffs case is that the suit properties are the ancestral and joint family properties of Venkatasamy Naidu and his sons namely the deceased first plaintiff and the first defendant. It is well settled that there is a presumption that the family is joint. But there is no presumption in law that the joint family owns properties, which are impressed with the character of joint family properties. Assuming that the manager of the joint family was possessed of an ancestral nucleus, that by itself would not lead to the next step that all properties in the possession of the karta of the family are joint family properties. It is for the person, who alleges that all the subsequent purchases were made out of the nucleus available in the hands of the karta, to plead and prove that the nucleus in the hands of the karta was of such a substantial nature yielding enough income leaving a surplus in the hands of the karta, which would have been utilised in the subsequent acquisitions. If the existence of that fact namely, there was a substantial and adequate nucleus in the hands of the karta is pleaded and proved, then it is for the karta to prove that no portion of the family funds was utilised for acquisition. In this context I extract hereunder the relevant portion of the judgement reported in 1978 1 M.L.J. 56 (D.B.) ( Ranganayaki Ammal & 4 others v. V. Balakrishna Naidu & 2 others ) brought to my notice by Mr. S. Gopalaratnam learned senior counsel. “One method by which it could be established that a particular property is joint family property is to prove by acceptable evidence the possession of a nucleus of joint family property or family funds. If the possession of an adequate nucleus is shown, it is then open to the member, who claims the property as his self-acquisition to prove that no portion of the family funds was utilised by him for acquisition. If the possession of an adequate nucleus is shown, it is then open to the member, who claims the property as his self-acquisition to prove that no portion of the family funds was utilised by him for acquisition. But if the fundamental fact of the existence of available surplus income or adequate nucleus is not established, then the presumption works the other way and the properties standing in the name of a particular member, in such circumstances, would be deemed to be his property, unless the contrary is established in a manner known to law by the challenging member.” In the case reported in (Gowri Ammal & Another v. Deceased Vaithilingam) 2001 (3) C.T.C. 577 a learned Judge of this Court (K. Govindarajan, J.) laid down the law as follows: “18. In view of the above said settled principles of law as held by the Division Benches of this court, if the existence of the joint family nucleus is established, the burden would shift on the manager to establish that he purchased the property from out of his self-earnings cannot be accepted. So, the person who claims that the property in the name of the manager of the joint family is the joint family property, has to establish not only the existence of nucleus of joint family but also the avilability of surplus funds of the family from the nucleus during the time of purchase of the said property.” Equally there is no presumption that a business standing in the name of any member of the joint family is the joint family business and when does the separate property of a Hindu co-parcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property is again covered by case laws. In 1968 3 S.C.R. 464 ( Narayana Raju v. Chamaraju ) it was held as follows: “It is well established that there is no presumption that a business carried on by a member of a joint family is joint family business and it is for those who set it up to establish it that though the business was carried on by an individual member it was the business of the family.” 9. Having the principles of law in mind, I address myself to Issues (a) and (b) framed by this court together for analysis. Having the principles of law in mind, I address myself to Issues (a) and (b) framed by this court together for analysis. The sum and substance of the appellants case is that, Venkatasamy Naidu had ancestral properties; they were substantial in nature; he was doing money lending business; to expand that business, he sold some of the ancestral properties and thus was possessed with the sale proceeds thereof; he joined in a partnership business in the year 1934; he put joint family properties and money towards his capital in that business; that business also flourished; several acquisitions were made out of that business income in the name of individual partners or jointly; in the year 1966, properties of the firm were divided, in which Venkatasamy Naidu was allotted substantial properties and those properties having come to be acquired with the capital of the joint family in the said firm, also has the character of joint family properties. To show that Venkatasamy Naidu had ancestral properties, the plaintiffs rely upon Ex.A.1, the mortgage deed of the year 1915. The sale deeds executed by him are exhibited as Exs.A.2 to A.4 and the purchases made by him are exhibited as Exs.A.5 to A.9. All these documents are between the years 1915 and 1942. Exs.A.8 and A.9 alone are purchases subsequent to the alleged commencement of the partnership business in the year 1934. In support of the plaintiffs case the deceased first plaintiff examined himself as P.W.1 and examined another witness as P.W.2. Contra evidence is available in the form of D.Ws.1 to 10, out of whom D.W.2 is the second defendant himself. Venkatasamy Naidu is shown to have died on 05.09.74 at the age of 85. Therefore at the time of Ex.A.1 dated 18.02.15 Venkatasamy Naidu should have been around 25 years of age. The deceased first plaintiff is shown to be 60 years of age in the year 1975, the year in which the suit is filed, which means he should have just born at or about that time. In any event it cannot be disputed that the deceased first plaintiff should have been at a very tender age not in a position to know as to what is happening around him at that time. P.w.2 is only an official witness. In any event it cannot be disputed that the deceased first plaintiff should have been at a very tender age not in a position to know as to what is happening around him at that time. P.w.2 is only an official witness. D.W.1, the co-brother of Venkatasamy Naidu, is shown to be 76 years of age on 25.09.80 when he was examined in court. Therefore he might have been around 10 or 11 years when Ex.A.1 was brought into existence. His evidence shows that he was married in the year 1923 to the daughter of Konama Naidu. Konama Naidu is also the father-in-law of Venkatasamy Naidu. Venkatasamy Naidu married the elder daughter while D.W.1 married the younger daughter of Konama Naidu. Going by the respective age of P.W.1 and D.W.1 and no other witnesses having been examined to speak about the family background of Venkatasamy Naidu, I have no doubt at all in my mind that if at all any person can speak about the family background of Venkatasamy Naidu, it is only D.W.1. I am fully aware that D.W.1 had come to marry the younger sister of Venkatasamy Naidu only in the year 1923. Therefore he can have personal knowledge about the family of Venkatasamy Naidu and his background only thereafterwards. If he deposes anything about the family of Venkatasamy Naidu prior to his marriage as referred to above, it can be only hearsay. But I find from the evidence of D.W.1 that he had not deposed at all anything about the family background of Venkatasamy Naidu prior to his marriage in the year 1923. In other words, his evidence is only in respect of post 1923 period. I am unable to get any material from the evidence of D.W.1 about the crucial aspect namely, whether Venkatasamy Naidu had any ancestral property at all at his command prior to his marriage in the house of Konama Naidu. In the same breath I also have my own doubt as to how far the evidence of P.W.1 would establish Venkatasamy Naidu being possessed of any ancestral properties at his hands, for the simple reason that in the year 1915 when Ex.A.1 had come to be brought about (earliest of the documents on record), P.W.1 would have been of a very tender age. P.W.1 admits in his evidence that when Ex.A.13 came to be executed on 27.03.70, he was 56 years of age. That means he would have been born in the year 1914 and this unerringly shows that when Exs.A.1 to A.6 came to be executed between the years 1915 and 1926, he would have been in the age range of 1 and 12. P.W.1 admits positively that he was born in the year 1914. In another place of his evidence P.W.1 would state that in the year 1966, he was aged about 50 years, which again reaffirms the position that he could have been born in the year 1914 or so. Under these circumstances, I have no doubt at all in my mind that the evidence of P.W.1 would not be sufficient in the eye of law to decide the nature of the properties in the hands of Venkatasamy Naidu at the time of his birth or even thereafter. But none-the-less and in the absence of any oral evidence, if the court finds that the available documentary evidence throws some light on this aspect namely, whether Venkatasamy Naidu had any ancestral property in his hand or not, the court would not be committing any mistake in looking at them. 10. The plaintiffs very heavily rely upon Ex.A.1. the document dated 18.02.1915, which is a mortgage deed executed by Venkatasamy Naidu in favour of another Venkatasamy Naidu. In the plaint the allegation is that Venkatasamy Naidu had ancestral properties as seen from Ex.A.1. Mr. S.V. Jayaraman learned senior counsel appearing for the appellants also heavily relied upon Ex.A.1 only to contend that Venkatasamy Naidu had ancestral properties in his hands. Relying upon A.I.R. 1945 P.C. 174 (Judah v. Isolyne Bose) learned senior counsel Mr. S. Gopalarathinam contended that marking of documents by itself would not amount to proof of contents. But however I find that in the face of the latter judgement of the Honble Supreme Court of India reported in 1972 S.C.608 = 85 L.W. 39 S.N. (P.C. Purushothama Reddiar v. S. Perumal ) I have every difficulty in sustaining the argument advanced by Mr. S. Gopalaratnam, learned senior counsel. But however I find that in the face of the latter judgement of the Honble Supreme Court of India reported in 1972 S.C.608 = 85 L.W. 39 S.N. (P.C. Purushothama Reddiar v. S. Perumal ) I have every difficulty in sustaining the argument advanced by Mr. S. Gopalaratnam, learned senior counsel. It was held in that case that “once a document is properly admitted, the contents of the document are also admitted in evidence, though those contents may not be conclusive evidence.” Though the oral evidence of P.W.1 on record does not inspire any confidence at all about the nature of properties in the hands of his father, as the facts spoken to by him would not have been within his personal knowledge, yet I am of the firm view that Ex.A.1 could be taken into account. Under these circumstances, I see no difficulty at all in relying upon Ex.A.1. Ex.A.1 is the mortgage deed executed by Venkatasamy Naidu in favour of another Venkatasamy Naidu. It recites that the mortgaged properties were allotted to the mortgager in the partition between himself and his brother Sama Naicker. P.W.1 had spoken about this, probably on seeing the document itself. The total extent of the properties mortgaged under that document comprised in various survey numbers are shown to be 16 acres and 34-1/2 cents. There is no material worth mentioning on record to even infer that Venkatasamy Naidu had any other property other than the property mentioned in Ex.A.1. It is no doubt true that under Ex.A.3, Venkatasamy Naidu had dealt with a property not covered under Ex.A.1. Except that solitary material, I do not have any other acceptable material to hold that Venkatasamy Naidu was in possession of any properties other than the ones mentioned in Ex.A.1. Venkatasamy Naidu while effecting the sales under Exs.A.2 to A.4 had described the properties conveyed under those documents as one he got ancestrally. Under these circumstances, I am inclined to hold that the properties comprised in Ex.A.1 were the ancestral properties in the hands of Venkatasamy Naidu as on 18.12.1915. But the very existence of an extent of 16 acres and 34-1/2 cents as ancestral and joint family properties in the hands of Venkatasamy Naidu does not, in my considered opinion, take the case of the plaintiffs any further. But the very existence of an extent of 16 acres and 34-1/2 cents as ancestral and joint family properties in the hands of Venkatasamy Naidu does not, in my considered opinion, take the case of the plaintiffs any further. Admittedly most of the properties comprised in Ex.A.1 had been conveyed by Venkatasamy Naidu himself under Exs.A.2 to A.4 dated 11.07.18, 06.05.20 and 06.05.20 respectively. The properties comprised in Ex.A.1 are situated in Survey Nos. 576 and 569 of an extent of 5.88 acres and 3.81 acres in Periyanaickenpalayam Village and in Survey Nos. 671, 108, 104/2, 85/1, 85/2 and 85/3 in Idigarai Village of an extent of 3.44 acres, 202-1/2 acres, 0.01 acres and 1 acre. Under Ex.A.2 about 90-1/2 cents have been sold in Survey Number 85/2 and under Ex.A.3, 3.56 acres namely, a extent of 3.44 acres in Survey Number 671 and 0.12 acres in Survey Number 670 had been sold and under Ex.A.4 an extent of 2.02 acres in Survey Number 108 had been sold. It may be noticed here that Ex.A.1 does not comprise in itself any property in Survey Number 670. Whatever it is, after the sales effected by Venkatasamy Naidu under Exs.A.2 to A.4, only two extents of lands were available with Venkatasamy Naidu namely, 5.88 acres in S. No. 576 and 3.38-1/2 acres in S. No. 569, both situated in Periyanaickenpalayam Village. To make it more clear, with effect from 06.05.20 Venkatasamy Naidu is shown to have had only the above two extent of lands covered under Ex.A.1 having the character of ancestral nucleus. 11. There is absolutely no pleading in the plaint as to how the ancestral nucleus mentioned in Ex.A.1; the available ancestral nucleus after sales under Exs.A.2 to A.4 had been exploited and what was the income therefrom. In other words, there is total absence of pleading on this aspect. There is a vague allegation in the plaint that the properties purchased under Exs.A.5 to A.9 were from and out of the business income and other joint family properties while actually there is no pleading at all about the exact income from the business or from the joint family properties. I am confining myself at this stage about the earnings of the family of Venkatasamy Naidu upto 1934, in which year only he is stated to have joined in the partnership business. I am confining myself at this stage about the earnings of the family of Venkatasamy Naidu upto 1934, in which year only he is stated to have joined in the partnership business. At the risk of repetition, I want to make it very clear that there is no pleading at all as to what is the income of the family of Venkatasamy Naidu or the income which he was able to generate either from his business or from the ancestral nucleus till the year 1934, when he joined the partnership business. In the context of the absence of pleadings, I looked into the oral evidence of P.W.1 to find out whether there is anything in it. P.W.1 in his oral evidence would state as follows: “In the partition Venkatasamy Naidu got, besides land, a sum of Rs. 10,000/- in cash (there is no pleading that Venkatasamy Naidu was given Rs. 10,000/-); out of 16-1/2 acres, 6-1/2 acres is gar-den land and the other 10 is dry land; when Venkatasamy Naidu effected sales under Exs.A.2 to A.4, he was doing money lending business; with the sale proceeds under Exs.A.2 to A.4, he did money lending business; during those days a sum of Rs. 500/- would be the annual income for one acre from those dry lands and annually a sum of Rs. 5,000/- would be earned out of the money lending business (again there is no pleading); the source for the purchase of the properties under Exs.A.5 to A.9 is from the agricultural income and money lending business.” (Evidence in Chief) In his evidence in cross, he would depose as follows: “He had no documentary evidence to show that Venkatasamy Naidu did money lending business; he does not know the income from the lands at the time of Ex.A.1; the properties situated in S. Nos. 576 and 569, which are away at a distance of two miles,, there is no well; the lands are rainfed; he has not filed any documentary evidence to show that Venkatasamy Naidu cultivated the same.” I have already found that after the sales effected under Exs.A.2 to A.4, Venkatasamy Naidu had only lands in S. Nos. 576 and 569 referred to earlier. 576 and 569 referred to earlier. Therefore the plaintiffs have neither pleaded nor proved, I can say without any fear of contradiction, that the ancestral nucleus was ever yielding any income at all and even assuming it was yielding, yet there is no material to conclude that the income was of any substantial value. Even regarding the money lending business stated to have been carried on by Venkatasamy Naidu, I find that there is no acceptable material. 12. Even from another angle the case of the plaintiffs can be judged. Ex.A.1 is a mortgage deed. It recites that “two years prior to that document, Venkatasamy Naidu and his brother Sama Naicker borrowed a sum of Rs. 500/- from the mortgagee under a promissory note; that debt was allotted in the partition to Venkatasamy Naidu and that as a security for repayment of that debt, the mortgage is created.” The document further recites that by 18.02.17 i.e., within two years from that date, the debt would be dis charged. I see considerable force in the argument of Mr. S. Gopalaratnam learned senior counsel that if really the properties were yielding income of a substantial nature, then it is really ununderstandable as to why to discharge a liability of Rs. 500/-, Venkatasamy Naidu should have bargained for two years time. According to the learned senior counsel, this is an inherent material in the document itself to show that the ancestral nucleus in the hands of Venkatasamy Naidu would not have been of any value at all and that is why he was bargaining for time to repay that money. Again it is seen, as contended by Mr. S. Gopalaratnam learned senior counsel, that only in the year 1918 the debt liability in favour of the mortgagee under Ex.A.1 appears to have been discharged. The recital in Ex.A.2 refers to the intended discharge of the debt under Ex.A.1. Therefore it is clear that Venkatasamy Naidu had over stepped the limits which he bargained for under Ex.A.1 to discharge the mortgage debt and this again is another circumstance to show that Venkatasamy Naidu would not have been in a position to meet both ends, though he was possessed of nearly 16-1/2 acres of land. Therefore it is clear that Venkatasamy Naidu had over stepped the limits which he bargained for under Ex.A.1 to discharge the mortgage debt and this again is another circumstance to show that Venkatasamy Naidu would not have been in a position to meet both ends, though he was possessed of nearly 16-1/2 acres of land. Though there is some reference in the plaint that Venkatasamy Naidu was carrying on money lending business, yet only for the first time I find a reference in Ex.A.2 about the intention of Venkatasamy Naidu to do money lending business. The recital in Ex.A.2 shows that the sale was necessitated to discharge the mortgage debt under Ex.A.1 and to enable Venkatasamy Naidu to do money lending business. The sale consideration under Ex.A.2 was only Rs. 2,000/-. Once again there is total absence of material either oral or documentary as to what Venkatasamy Naidu did with the sale proceeds under Ex.A.2. Ex.A.3 is the sale deed executed by Venkatasamy Naidu in favour of another Venkatasamy Naidu for a sum of Rs. 700/-. Here again the recital is that the sale was necessitated, as the vendor was intending to do money lending business. The sale price under Ex.A.3 was Rs. 700/-. A reading of the document shows that no cash was given under Ex.A.3 but the buyer had only executed a promissory note for a sum of Rs. 700/- in favour of the vendor. It may be noticed here in this context that in Exs. A.2 to A.4 the vendor namely, Venkatasamy Naidu had described his occupation as a person of “Kudithanam Jeevanam”. The Tamil word “Kudithanam Jeevanam” only means that he was not carrying on any business at that time. If really Venkatasamy Naidu was in possession of cash resources, then he would not have recited in Ex.A.2 that he is selling the property for the discharge of the debt secured under Ex.A.1 and for money lending business. Ex.A.2 is of the year 1918. Ex.A.3 is of the year 1920. Even in Ex.A.3 the reci tal is to do money lending business. If really Venkatasamy Naidu was doing money lending business from the sale proceeds under Ex.A.2 and the said business was flourishing, then there would have been no need at all for Venkatasamy Naidu to sell under Ex.A.3. Ex.A.3 is of the year 1920. Even in Ex.A.3 the reci tal is to do money lending business. If really Venkatasamy Naidu was doing money lending business from the sale proceeds under Ex.A.2 and the said business was flourishing, then there would have been no need at all for Venkatasamy Naidu to sell under Ex.A.3. It may be noticed here that both Exs.A.3 and A.4 came to be executed on the same day. The recital in Ex.A.4 shows that the sale of the property covered thereunder came to be effected, since the vendor was having some difficulties in cultivating the lands. Going by mathematical calculation, Mr. S.V. Jayaraman learned senior counsel appearing for the appellants would contend that by effecting sales under Exs.A.2 to A.4, after discharging the liability under Ex.A.1, (there is no proof for it) Venkatasamy Naidu should have definitely had a sum of Rs. 5,000/- in his hand. Assuming so, yet in the absence of any legal material on record to conclude that the available ancestral nucleus was yielding substantial return and that the money lending business stated to have been carried on by Venkatasamy Naidu was also yielding good returns, it would be impossible to hold that Venkatasamy Naidu could have kept the sale proceeds in cash under Exs.A.2 to A.4 intact without spending it. On the other hand the probabilities are, the money would have gone to meet the family expenditures. The first purchase by Venkatasamy Naidu was under Ex.A.5 in the year 1925. Therefore to hold that from 06.05.20 till the purchase was made on 02.10.25 under Ex.A.5, Venkatasamy Naidu could have retained the entire sale proceeds under Exs.A.2 to A.4 intact, would be too big a pill to swallow. In conclusion therefore I hold that there is no acceptable material to conclude that the ancestral properties available at the hands of Venkatasamy Naidu at any point of time, commencing from Ex.A.1 till the purchase under Ex.A.5, was yielding any return much less substantial return, which would have enabled Venkatasamy Naidu to have purchased the acquisitions under Exs.A.5 to A.9. In other words, there is total absence of evidence during the period from Exs.A.1 to A.5 as to what is the income which the ancestral nucleus generated and was there any surplus at all in the hands of Venkatasamy Naidu during that period. In other words, there is total absence of evidence during the period from Exs.A.1 to A.5 as to what is the income which the ancestral nucleus generated and was there any surplus at all in the hands of Venkatasamy Naidu during that period. The positive case of the plaintiffs is that, Venkatasamy Naidu joined in the partnership business in the year 1934 only with Muthu Naidu, Narayana Naidu and Govindasamy Naidu. The name of the firm was Muthu Naidu & Company. Muthu Naidu and Narayana Naidu are the brothers of his wife while Govindasamy Naidu is his co-brother. The case of the defence is that, from the year 1922 or 1923 onwards, Muthu Naidu and Narayana Naidu were carrying on business in Ginning and cotton trade and at the instance of their father, they got Venkatasamy Naidu and Govindasamy Naidu associated with them in that business. It may be noticed here that the purchases under Exs.A.5 to A.9 are in the years 1925, 1926, 1932, 1938 and 1942 respectively. 13. According to the plaint allegation, the purchases under Exs.A.5 to A.9 are acquisitions of Venkatasamy Naidu himself without the aid of the income from the partnership business of Muthu Naidu & Company. In other words, the positive averment is that those purchases were made out of the money lending business carried on by Venkatasamy Naidu and income from joint family properties. P.W.1 had deposed so in his oral evidence. I have already referred to that by the time the property under Ex.A.5 had come to be purchased, Venkatasamy Naidu had only two extents of property in Survey Nos. 576 and 569. I have also referred to the evidence of P.W.1 that those lands are situated far away without any source of irrigation. I have already concluded that there is no proof at all that Venkatasamy Naidu was carrying on any money lending business. On these concluded facts the question is whether the purchases under Exs.A.5 to A.9 could have been as alleged by the plaintiffs in the plaint and attempted to be proved or could it be in any other manner? I have already concluded that there is no proof at all that Venkatasamy Naidu was carrying on any money lending business. On these concluded facts the question is whether the purchases under Exs.A.5 to A.9 could have been as alleged by the plaintiffs in the plaint and attempted to be proved or could it be in any other manner? In this context I extract hereunder the relevant evidence of P.W.1: “Prior to 1934 Venkatasamy Naidu did not do any business with Muthu Naidu, Narayana Naidu and D.W.1; but however all the four could have purchased properties; I do not remember whether Muthu Naidu and Narayana Naidu carried on business in cotton prior to 1934; upto 1934 Venkatasamy Naidu and Govindasamy Naidu stayed together and looked after the agricultural operation; I do not know whether from the year 1923 Venkatasamy Naidu, Govindasamy Naidu (D.W.1), Muthu Naidu and Narayana Naidu were trading in co tton; prior to 1934 there was a ginning factory in Periyanaickenpalayam; that was started by my grand father Konama Naidu and my uncles Muthu Naidu and Narayana Naidu; Venkatasamy Naidu and Govindasamy Naidu later joined in that factory; the partners of Muthu Naidu & Company purchased lot of properties; it is possible that the property under Ex.A.5 could have been purchased in my fathers name by Muthu Naidu from the income of the ginning factory; but however I do not remember; I do not know whether Per a Naidu was owing any money to Muthu Naidu towards repayment of that money; it may be possible for Muthu Naidu purchasing his property in the name of my father under Ex.A.6; but however I do not know.” (Pera Naidu is the vendor under Ex.A.61). This evidence of P.W.1 is leaning very much and to a large extent to the case of the defence that Venkatasamy Naidu was associated with the business of Muthu Naidu and Narayana Naidu even from the year 1923 onwards and that the purchases under Exs.A.5 to A.9 are not acquisitions by Venkatasamy Naidu from the joint family nucleus. I have already noted in the earlier portion of this judgement that P.W.1 was at a very tender age during the relevant time and he may not have any personal knowledge about the business activities in the family of Konama Naidu. I have already noted in the earlier portion of this judgement that P.W.1 was at a very tender age during the relevant time and he may not have any personal knowledge about the business activities in the family of Konama Naidu. Venkatasamy Naidu, being the son-in-law of Konama Naidu, there is nothing unusual in father-in-law having his son-in-law associated with his business, which was looked after by his sons. As against the evidence of P.W.1, the court has the evidence of D.W.1, which is of a substantial nature. He was aged 76 years on the day when he gave evidence and he has no axe to grind against the plaintiffs. Simply because his grand daughter is married to the second defendant, his evidence cannot be thrown over board, if it is found to be otherwise trustworthy. If he is interested in the defence, then he is equally interested in the plaintiffs as well. Simply because his grand daughter is married to the second defendant, his evidence cannot be thrown over board, if it is found to be otherwise trustworthy. If he is interested in the defence, then he is equally interested in the plaintiffs as well. His evidence shows the following: “At the time of his marriage in the year 1923, his father-in-law and his two brother-in-laws were carrying on trade in cotton and they are also having a ginning factory at Periyanaickenpalayam; his fatherin-law invited him to shift his residence and live with him with his wife; he also requested him to associate himself in the cotton trade; he shifted his residence to his in-laws house and by the time he settled there, Venkatasamy Naidu was already there with his family; he, his family, Venkatasamy Nai du and his family were all living jointly in their father-in-laws house; he and Venkatasamy Naidu joined in the cotton trade business of his father-in-law; he and Venkatasamy Naidu had not contributed any capital at all; the business was doing well; Konama Naidu died in the year 1927 and thereafter both the sons-in-law continued the business in cotton with the brothers-in-law; there is no document evidencing the association; they were carrying on business in the name of Muthu Naidu & Company; in the year 1934 the company came to be registered; even at the time when the company came to be registered in the year 1934, neither he nor Venktasamy Naidu contributed any capital; number of properties were purchased from the income of Muthu Naidu & Company in the name of the partners and all the purchases so made are the partnership assets.” The above evidence of this witness about the business in which he and Venkatasamy Naidu were associated from the year 1923 onwards, had not been shattered at all in any manner in his evidence in cross. On going through the evidence of D.W.1, I have no doubt at all in my mind that it definitely deserves acceptance at the hands of this court as well, as has been accepted by the learned trial Judge. On going through the evidence of D.W.1, I have no doubt at all in my mind that it definitely deserves acceptance at the hands of this court as well, as has been accepted by the learned trial Judge. The evidence of D.W.1 establishes beyond doubt that both in the year 1923 or 1924 when Venkatasamy Naidu and D.W.1 associated themselves in the cotton trade of their father-in-law and in 1934 when the said company had come to be registered as a partnership firm, they did not contribute any capital at all. In this context it may be noticed here that the case of the plaintiff as P.W.1 is that, towards capital of the partnership business in the year 1934 Venkatasamy Naidu brought in his properties; agricultural income and income from money lending business. P.W.1 in his evidence would further affirm that he is in possession of documentary proof to show that Venkatasamy Naidu had contributed towards capital in the firm of Muthu Naidu & Company. If this is so, then it means that he is in possession of the best evidence with him to substantiate the existence of a fact. But however he had not chosen to produce the same. It is needless to state that when a party is in possession of the best evidence with him, which if produced would show the existence of a particular fact and if he fails to produce the same, then the court would not be committing any mistake at all in drawing an adverse inference against him and in fact this court draws an adverse inference against him in this regard. 14. In the above context Mr. S.V. Jayaraman learned senior counsel appearing for the appellants relied upon Ex.A.23 dated 29.10.71. This is the reply notice sent by the lawyer of first and second defendants to Ex.A.21 notice dated 29.09.71. Ex.A.21 is the notice sent by the deceased first plaintiff to his father, first defendant and second defendant. 14. In the above context Mr. S.V. Jayaraman learned senior counsel appearing for the appellants relied upon Ex.A.23 dated 29.10.71. This is the reply notice sent by the lawyer of first and second defendants to Ex.A.21 notice dated 29.09.71. Ex.A.21 is the notice sent by the deceased first plaintiff to his father, first defendant and second defendant. The necessary averments in Ex.A.21 regarding capital contribution are as follows: “With the money raised by mortgaging ancestral properties and with the sale proceeds of some of the properties, Venktasamy Naidu carried on money lending business; with the income therefrom and with the income from the lands, Venkatasamy Naidu made up the capital contribution and started a business in association with his brother-in-laws in the name of Muthu Naidu & Company.” Ex.A.23 contains a reply on the following lines: “It is denied that Venkatasamy Naidu contributed capital for Muthu Naidu & Company from the income from ancestral properties or with the help of it, he contributed in the said company as capital whatever he earned from his self exertion.” It may be noticed here that this is the reply notice issued on behalf of defendants 1 and 2 and Venkatasamy Naidu had not sent any reply. At best therefore it would be an admission on the part of defendants 1 and 2 of a fact namely, Venkatasamy Naidu made contributions towards capital of Muthu Naidu & Company. In my opinion this admission cannot be used against Venkatasamy Naidu himself, so as to change the character of the property in his possession, since he is not the author of this admission. Even otherwise if this admission can be taken into account, then it must be taken as a whole and in its letter and spirit. If the admission is read in its strict sense, it would only mean that no joint family funds were ever contributed as capital in Muthu Naidu & Company and it is only the private funds of Venkatasamy Naidu which went towards capital contribution. Therefore this averment in Ex.A.23 can only lead to the conclusion that the case of the plaintiffs that joint family properties went towards capital contribution, stands falsified. Therefore this averment in Ex.A.23 can only lead to the conclusion that the case of the plaintiffs that joint family properties went towards capital contribution, stands falsified. Looking from any angle, the plaintiffs have failed to establish that Venkatasamy Naidu was not in the business of his father-in-law at any time prior to 1934 and that he came to associate himself with them only in the year 1934 by contributing capital. In other words, to put it more clearly, I hold that the defendants have definitely established that Venkatasamy Naidu associated himself in his father-in-laws business from the year 1923 onwards without contributing any capital; the same state of affairs continued even when the firm came to be registered in the year 1934 and that state of affairs continued when the division of the partnership assets took place on 14.12.66 under Ex.A.10. There is no evidence at all to hold that the interest of Venkatasamy Naidu in the business is for and on behalf of the joint family and that the joint family was in any way responsible for the further growth of that interest in that business. In this context it is worth noticing Ex.B.21 dated 05.03.59. It is the income tax assessment order for the year 1958 -1959 and it relates to Venkatasamy Naidu. The assessee is described as “Venkatasamy Naidu C/o. Muthu Naidu & Co; Perianaickenpalayam - individual (married)” There is another assessment order dated 18.01.69 marked in this case as Ex.A.18 for the assessment year 1968-1969. The assessee is described as Shri. R. Venkatasamy Naidu, C/o. M/s. K. Muthu Naidu & Co., Periyanaickenpalayam, Hindu Undivided Family with more than one minor coparcener. This order shows that there is no share of income derived from M uthu Naidu and Company and the firm was dissolved. Income from another source is disclosed. The said source has nothing to do with the plaint claim. Therefore Ex.A.18 cannot advance the case of the plaintiffs to the detriment of the defendants. It may be noticed here that one of the four partners of the said firm namely, Muthu Naidu died in the year 1954 and therefore under Ex.A.10 three sons of Muthu Naidu and the other three surviving partners were made as parties to that document. Therefore Ex.A.18 cannot advance the case of the plaintiffs to the detriment of the defendants. It may be noticed here that one of the four partners of the said firm namely, Muthu Naidu died in the year 1954 and therefore under Ex.A.10 three sons of Muthu Naidu and the other three surviving partners were made as parties to that document. Having held that Venkatasamy Naidu never associated himself in the business referred to above representing the family, the irresistible conclusion that follows is that, all the properties that were allotted to Venkatasamy Naidu under Ex.A.10 do not get impressed with the character of joint family properties. In other words, all the properties that were allotted to the share of Venkatasamy Naidu under Ex.A.10 are his self acquisitions. It may be true that under Ex.A.10, the ancestral property in the hands of Venkatasamy Naidu namely, the properties situated in S. Nos. 576 and 569 came to be dealt with. In fact one of the two properties referred to above was allotted to the share of the other partner (D.W.1) and likewise the properties belonging to the other partners were also allotted to the share of Venkatasamy Naidu. D.W.1 in his evidence had given an excellent explanation as to how the various properties came to be dealt with under Ex.A.10. D.W.1 in his evidence would state that he was to get six acres of land in S. No. 26 in Gudalur Village; he offered it to Venkatasamy Naidu in exchange of the lands situated in S. No. 569; as he agreed for it, the lands situated in S. No. 569 were also dealt with under Ex.A.10 and then allotted to the share of D.W.1. D.W.1 is firm in his evidence that Venkatasamy Naidu never brought the lands situated in S. Nos. 569 and 576 as capital contribution in the business. The nature of trade which the family of Konama Naidu was carrying on, did not require immovable property as capital of the business. There is no evidence to show that any immovable property was brought in at all by Venkatasamy Naidu towards capital contribution. Even assuming he had brought in some immovable properties as capital contribution, yet there is no evidence to show that the said immovable properties were in any way encumbered to raise a loan which in turn was utilised for the business of the firm. Even assuming he had brought in some immovable properties as capital contribution, yet there is no evidence to show that the said immovable properties were in any way encumbered to raise a loan which in turn was utilised for the business of the firm. In view of the categorical evidence of D.W.1 that neither he nor Venkatasamy Naidu contributed any capital at all in the business at any point of time, I see no reason at all to reject the case of the defence. In fact D.W.1 in his evidence would state that to avoid the stamp duty payable on a regular exchange deed, the lands in S. No. 569 were brought under Ex.A.10 and then exchanged. I see nothing unusual in this, as division of assets between the partners need not be necessarily reduced into writing and in any event it does not call for registration and payment of stamp duty as payable in the case of either conveyance or exchange or partition. Therefore I have no doubt at all in my mind that the ancestral nucleus, after sale of the properties under Exs.A.2 to A.4, in the hands of Venkatasamy Naidu was not of any substantial value at all; in any event it was not yielding any substantial income much less any appreciable income; Venkatasamy Naidu is not shown to have carried on any money lending business; therefore there is no question of any income therefrom; the acquisitions under Exs.A.5 to A.9 could not have been the acquisitions made by Venktasamy Naidu from and out of the joint family nucleus and the business and as a result thereof, no joint family funds wete ever pumped in as capital in the business of Muthu Naidu & Company at any point of time and therefore the suit properties are not impressed with the character of joint family properties. 15. Let me now take up Issue No.(c) framed by this Court. I have already held that the properties forming the subject matter of the suit are not impressed with the character of joint family properties and that they are the separate and self acquired properties of Venkatasamy Naidu. But however it must be noticed here that father had effected partition of his properties under the document dated 27.03.70 marked in this case as Ex.A.13. But however it must be noticed here that father had effected partition of his properties under the document dated 27.03.70 marked in this case as Ex.A.13. A perusal of Ex.A.13 does not necessarily impress the suit properties with the character of joint family properties. In fact the recitals show that the properties dealt with under that document are the self acquired properties of Venkatasamy Naidu. There is no material whatsoever that Venkatasamy Naidu had ever treated those properties as joint family properties consisting of himself and his sons. In any event since an allegation is made in the plaint that father had no right to effect a partition, as he had done in this case and that it is inequal, this court must necessarily answer that issue as well. In Maynes Hindu Law 14th Edition at Page No. 81 (paragraph 471) the following text is found: “A Hindu father under the Mithakshara Law can, it has been held, effect a partition between himself and his sons without their consent. This text has been held to apply not only to property acquired by the father himself but also to ancestral property. The father has power to effect a division not only between himself and his sons but also between the sons inter se.” The author, for the above statement of law, refers to a number of judgements rendered by this court. In I.L.R. 2 Madras Pg. 318 (Kandasamy, a Minor, by his Mother and Guardian v. Doraisamy Ayyar & Others) it was held as follows: “According to the Hindu Law it is competent to a father to make a partition during his life, and the partition so made by him binds his sons, not because the sons are consenting parties to the arrangement, but because it is the result of a power conferred on him though subject to certain restrictions imposed in the interest of his family.” “A partition made by the father is binding on the sons not only in respect of the fathers share but also of their own shares, provided that it is made subject to the restrictions mentioned in the Hindu Law.” In 1950 2 M.L.J. Pg. 353 (Meyyappa Chettiar v. Commissioner of Income Tax, Madras) a Division Bench of this court held on the issue in question as follows: “Under the Mithakshara law the father has the undoubted right and privilege of effecting a partition between himself and his sons, whether they are majors or minors, without their consent. He may divide the properties physically or may only bring about a division in status. This division may be between himself and his sons or even between the sons inter se. The partition so made however must be fair and equal.” “If the partition is unequal and unfair it is open to the sons if they are majors, to repudiate the partition; but if they are minors, it is open to them to avoid that partition by appropriate proceedings after they attain majority. The partition therefore will be good until it is set aside.” “Whether it is an alienation under the Hindu law by a guardian on behalf of the minor or a partition effected by the father in the exercise of his peculiar power the transaction will be good until it is set aside; it is voidable and not void.” In A.I.R. 1966 -Mad. 266 ( Venkatasubramania v. Easwara Iyer ) it has been held as follows: “The power of the father of a joint family to divide family property at any moment during his life, provided he gives his sons equal share with himself, is well established. The consent of the sons is not necessary for the exercise of that power, the right of the father to sever himself and the sons inter se being part of the patriae potestas that was recognised by the Hindu Law.” “The power of a father to effect division is subject to the distribution being equal. If the distribution effected by the father is unequal or there has been fraud in the division and is vitiated by undue favouritism, the partition, effected would be reopened and adjusted. But the partition is not wholly void.” (This judgement records that no arguments were advanced on the question of limitation - Para 75 Page 294). In 1983 2 S.C.C. Pg. But the partition is not wholly void.” (This judgement records that no arguments were advanced on the question of limitation - Para 75 Page 294). In 1983 2 S.C.C. Pg. 155 = 96 L.W. 90 S.N. ( Apporva Shantilal Shah v. Commissioner of Income Tax, Gujarat ) it was held as follows: “It is recognised in ancient Hindu law that in a joint family governed by Mitakshara school, father in exercise of his superior right as father or of his rights as patria potestas is entitled to bring about a complete disruption of the joint family consisting of himself and his minor sons and to effect a complete partition of the joint family properties even against the will of the minor sons.” Therefore in my respectful opinion, there cannot be any doubt at all about the fathers right to effect a partition. The law is also very clear that the said transaction brought about by the father is not void but is only voidable. Accordingly Issue No.(c) framed by this court is answered holding that the partition deed dated 27.03.70 effected by Venkatasamy Naidu is within his legal competency. 16. Now let me take up Issue Nos.(d) and (e) framed by this Court which can be analysed together: Admittedly the plaintiffs have not prayed for the relief of setting aside the partition effected by the father. There are allegations in the plaint that the partition effected by father is unfair, inequal, fraudulent and dishonest and therefore not binding on the deceased first plaintiff. The further allegation is that, the first plaintiff is therefore entitled to ignore the same and claim a division of all the properties as joint family properties equitably and properly. Therefore the substantial relief prayed for in the suit is for partition and for other incidental reliefs. As already stated, the plaintiffs have not prayed for the relief of setting aside the partition effected by the father. The question is whether without praying for such a relief, the suit is maintainable or looking from any angle can the relief of partition be given to the plaintiffs without the relief of setting aside the partition effected by the father being considered by the court. The question is whether without praying for such a relief, the suit is maintainable or looking from any angle can the relief of partition be given to the plaintiffs without the relief of setting aside the partition effected by the father being considered by the court. The case laws referred to above on the power of the father to effect a partition also make it very clear that such a transaction brought out by the father is only voidable and not void. In other words, when fathers power to effect a partition is recognised in the eye of law, it is needless to state that such a transaction is only voidable and not void. The decided case laws referred to above also lay down very clearly and emphatically that such a partition effected by the father is binding on all his sons, including major and minor sons. In 1913 (Vol. 24) M.L.J. 592 (Raja Rajeswari Dorai v. A.L.A.R.R.M. Arunachellam Chettiar & Another) two learned Judges of this court had analysed the question regarding the need to pray for setting aside the document at great length. The facts in short in that case are as follows: “Father executed two leases, one on 05.11.1889 and the other on 02.06.1893; the suit was filed for declaration that the leases are not binding on the plaintiff on the ground that they were obtained by exercise of undue influence and for delivery of possession; among other defences, one of the defence taken was that the suit is barred by Article 91 of the Limitation Act (corresponding to Article 59 of the 1963 Act); the suit in that case was filed in the year 1904; the suit was dismissed on the ground of limitation; the argument advanced in that case on behalf of the unsuccessful plaintiff was that the plaintiff is entitled to the relief of possession without any further setting aside of the instruments; therefore a question arose, among other things before the Division Bench about the requirement to pray for the relief of setting aside the instruments also, besides asking for other reliefs; in answering that question Justice Miller and Justice Sadasiva Aiyar, wrote separate but concurring judgements. Justice Sadasiva Aiyar in his separate but concurring judgement had addressed himself to the following question, among other questions: Is the plaintiff bound to have the leases in dispute set aside by a judicial pronouncement before obtaining the relief of possession and mesne profits claimed in this suit? OR Is no such judicial pronouncement necessary and whether the mere bringing of the suit by the plaintiff, alleging in the plaint that he or his father has repudiated the lease, etc., etc., is sufficient to put an end to the lease and to give the right to the plaintiff to obtain the relief as to possession and mesne profits? In answering the above question, I find the following reflection of mind of the learned Judge in his separate judgement: “A unilateral expression of a rescission of a contract by one of the parties to the contract cannot be held to relieve him from his obligation to have the contract rescinded by court under the substantive law of the land and within the time allowed by Statutory law if he wants, as plaintiff, the assistance of the court in obtaining certain reliefs on the basis that the contract has ceased to exist. The argument of the appellants learned vakil, if I understand him aright, was that the law of the land does not require a judicial rescission of a contract or the judicial rescission of a registered lease deed or conveyance in order to enable the party to a contract or the executant of a conveyance to sue for reliefs flowing from the rescission of the contract or setting aside the conveyance as the case may be, provided that he himself repudidates the contract etc., etc.,” “A defendant, who has properly repudiated a contract or deed, might well be allowed to sit tight over his possession and defend his right to such possession by sitting up, by way of plea, such proper repudiation by him, though he might he barred if he seeks positive relief as plaintiff on the basis of such repudiation.” “The question is, therefore, now narrowed to this point. Is a litigant coming forward as plaintiff for a relief which he cannot get if a document executed by himself or his predecessor-in-title is in force on the date of the suit, is such a litigant entitled to the relief of possession after the expiry of the time fixed by law for the setting aside of that document and simply on his allegation and proof that he has himself repudiated the document on proper grounds, assuming that the document is voidable at his instance? If he brings a suit for possession within the time limited by law for setting aside that document, that suit, of course, might be taken as brought for both the reliefs of possession, and rescission, and there will be then no difficulty. The difficulty will arise only where the time fixed by law for a suit to set aside the document has lapsed, but the limitation for possession of the immovable property dealt with under the document has not elapsed, and also in cases where the suit was brought after the expiry of the period fixed by law for the recovery of the property, if calculated from the date when the plaintiff became entitled to repudiate the contract, but within such period, if calculated from the date when he actually repudiated the contract or deed. However, it must be admitted that there is no Indian Statute expressly laying down that a person who comes in as plaintiff claiming relief against the effect of a deed voidable at his instance should have it judicially rescinded before or at the time of his getting that relief. But if judicial decisions have laid down the common-law of the land as requiring such judicial rescission, and if there are implications to be found in the statute-law supporting the judicial decisions as to the rules of the common-law, we are bound to follow such decisions. The common-law being founded on common sense, many of its principles will be found laid down in English cases also. The common-law being founded on common sense, many of its principles will be found laid down in English cases also. And if the principles so laid down by English decisions have been adopted by the Privy Council and by the Indian High Courts, they form part of the law, binding upon Indian Courts.” After referring to Halsburys Laws of England, the learned Judge in his judgement once again states as follows: “This shows that where the repudiation is by one party alone, he cannot, as plaintiff, get any relief except as consequent on getting a declaration and a rescission by the court. Of course, if the repudiation is accepted by the other side in the mode allowed by law, then the contract or transaction might be properly rescinded by the act of both parties without the intervention of a court. (See sections 62 and 63 of the Contract Act on this point). Or if the original contract or deed itself, by clauses of forfeiture or similar clauses, puts an end to the contract or transaction, then also it is really determined by both parties, and the aid of the court is not required. (See sections 62 and 63 of the Contract Act on this point). Or if the original contract or deed itself, by clauses of forfeiture or similar clauses, puts an end to the contract or transaction, then also it is really determined by both parties, and the aid of the court is not required. But in other cases, even though the contract or transaction is voidable at the instance of one party, its rescission is effectuated, not by the mere repudiation of one party, but by the decree or declaration of the court.” Again the learned Judge after referring to the Halsburys Laws of England, had stated as follows: “This again, is clear authority for the proposition that a mere unilateral repudiation in pais by the plaintiff cannot constitute an effectual rescission of a contract or deed and such effectual rescission entitling the plaintiff to obtain further reliefs must be made by a decree of court declaring that the contract or transaction is void and setting it aside.” At Page No. 617 of that judgement, the following passage is found: “I think the principle underlying these remarks of their Lordships apply as aptly to a suit for possession of immovable property, when that relief is inconsistent with a registered lease deed executed by the plaintiffs predecessor-in-title, and I hold that the plaintiff, who desires a relief inconsistent with the said document, may and should pray to set it aside, and that the letter and spirit of article 91 of the Limitation Act require that such a suit should fall within the prohibition of the article.” “It seems to me that, if even a ward is obliged to have an alienation by his guardian set aside by a judicial declaration before he could recover the property, it is an a fortiori case where the alienation was made by an adult plaintiff himself or his predecessor-in-title. An alienation by a guardian beyond his powers is really void, whereas an alienation by an adult is only voidable.” The said position in law is found reiterated once again in the judgement reported in A.I.R. 1945 P.C. 54 = 58 L.W. 176 ( Ramachandra Jivaji Kanogo & Another v. Laxman Shrinivas Naik & Another ). An alienation by a guardian beyond his powers is really void, whereas an alienation by an adult is only voidable.” The said position in law is found reiterated once again in the judgement reported in A.I.R. 1945 P.C. 54 = 58 L.W. 176 ( Ramachandra Jivaji Kanogo & Another v. Laxman Shrinivas Naik & Another ). The following passage is found in that judgement: “If a deed of gift is a void transaction no question of cancelling, or setting it aside, would arise but if it is only a voidable transaction, that is a transaction valid until rescinded, then the necessity to set it aside is obvious before possession of the property can be claimed.” In 1953 1 M.L.J. 476 = 66 L.W. 304 (Jami Appanna v. Venkatappadu & Others) a Division Bench of this court held as follows: “Article 91 of the Limitation Act provides for a period of three years for a suit to cancel or set aside an instrument not otherwise provided for. This article resupposes that a suit is necessary under the law to set aside the instrument. But, where under the law there is no duty cast on the person to get an instrument set aside, this article does not impose any obligation on him to get it set aside. We must, therefore, have recourse to the substantive law to ascertain whether a party to an instrument should get that cancelled or not. Now the authorities have established that for this purpose there is a distinction between voidable and void transactions and that while the former class of transactions should be set aside the latter need not be. The reason for this distinction is that in the case of voidable transfer the title to the properties vests in the transferee on the execution of the deed and that it an revest in the transferor only by a decree of Court rescinding the transfer on grounds such as coercion, undue influence or fraud. To such a suit, Article 91 prescribes the period of limitation and if no suit is filed within the time limited thereby the transferor loses his right to avoid the sale and the title of the transferee becomes unimpeachable. To such a suit, Article 91 prescribes the period of limitation and if no suit is filed within the time limited thereby the transferor loses his right to avoid the sale and the title of the transferee becomes unimpeachable. Thereafter, it is not open to the transferor to sue for possession of the properties ignoring the deed because the right to possession is an adjunct to the title to the properties and that had passed to the transferee and had become unimpeachable by the operation of Article 91. But different considerations arise when the instrument of transfer is void and does not operate to vest the title in the transferee. In that case the transferor continues to be the owner of the properties even after the execution of the instrument precisely as before. There is no, need in such a case for the transferor to move the Court for setting aside the deed because there is no transfer which the Court has to rescind and if the transferor has to recover possession of the properties covered by the deed, he can ignore the deed and recover on the strength of his own title.” This judgement at Page No. 479 usefully refers to an earlier judgement on this point which is as follows: “The position is thus stated by Richardson, J in Saratchandra Gupta v. Kanai Lal Chakrabarty (1922 (26) C.W.N. Pg. 479) “If a plaintiff comes into Court to have a particular written instrument set aside or cancelled then prima facie the article of the schedule of the Limitation Act applicable is Article 91 whether the ground on which the claim is made is fraud or some other ground. The Courts, however, draw a distinction between void and voidable instruments and hold that Article 91 does not apply to intruments which are void ab initio so as not to require setting aside. When the instrument is voidable it is presumably valid, and binding on the plaintiff until it is set aside, and any further relief which may be sought depends on the removal of the instrument from the plaintiffs path. In such a case Article 91 applies. When the instrument is voidable it is presumably valid, and binding on the plaintiff until it is set aside, and any further relief which may be sought depends on the removal of the instrument from the plaintiffs path. In such a case Article 91 applies. But if the facts alleged by the plaintiff raise a case that the instrument, whether executed by the plaintiff himself or by some third party through whom he claims is null and void ab initio, then, as understand the matter, Article 91 ceases to be applicable and the circumstances may entitle the plaintiff to the benefit of the longer period of limitation allowed by some other article, such as Article 120 or Article 144.” “These observations are well supported by authority and it may now be taken as firmly established that where the instrument which is relied in bar of the plaintiffs claim is void and inoperative, there is no need for setting aside such an instrument and Article 91 does not bar the plaintiff from claiming such reliefs as he might be entitled to on the basis that the instrument is void.” 17. As against the above rulings, Mr. S.V. Jayaraman learned senior counsel appearing for the appellants, relying upon A.I.R. 1996 Madras 212 (DB) (Gurusamy Naicker v. G. Jayaramari), vehemently argued that mere repudiation is enough and there is no need for the affected party to go one step further and have the document itself set aside by a judicial process. Learned senior counsel read paragraph 16 of that judgement in support of his argument. He fairly admitted that the suit, out of which the appeal arose before this Court in that case, was brought before court within the period of limitation provided for setting aside the instrument itself. In this context I once again referred back to the concurring judgement of Justice Sadasiva Aiyar referred to supra, where the learned Judge had held in Page No. 609 as follows: “If he brings a suit for possession within the time limited by law for setting aside that document, that suit, of course, might be taken as brought for both the reliefs of possession, and rescission, and there will be then no difficulty. The difficulty will arise only where the time fixed by law for a suit to set aside the document has lapsed, but the limitation for possession of the immovable property dealt with under the document has not elapsed.” This distinction made by the learned Judge as referred to supra makes all the worldly difference in appreciating the argument advanced by Mr. S.V. Jayaraman learned senior counsel placing reliance on the judgement of this Court reported in A.I.R. 1996 Madras 212. I sent for the original pleadings from the Registry in the appeal disposed of in the case referred to supra and I found that the plaint included a prayer to set aside the document in question. In as much as the point of limitation was not at all involved in the reported judgement of this Court referred to above namely, 1996 Madras 212 and in view of the fact that the plaint contains a relief to set aside the document itself, I have no doubt in my mind that the said judgement does not apply to the case on hand. In fact I find from Paragraph 16 of the judgement referred to supra that the learned Judges have referred to A.I.R. 1983 S.C. 409 corresponding to 1983 (2) S.C.C. 155 and A.I.R. 1951 Madras 506. Having referred to that, the learned Judges have stated as follows: “But, it must be noted that if the said power exercised by the father (1st defendant) results in unequal and unfair partition, it could be set aside by the affected coparcener.” In Paragraph 16 of the said judgement, the following passage as found in A.I.R. 1951 Madras 506 is extracted: “Under the Mitakshara law the father has the undoubted right and privilege of effecting a partition between himself and his sons, whether they are majors or minors, without their consent. He may divide the properties physically or may only bring about a division in status. This division may be between himself and his sons or even between the sons inter se. The partition so made however, must be fair and equal. See Kandaswami v. Doraiswami Aiyar (1878-1980) I.L.R. (2) Madras 317 and Venkatapalhi Raju v. Venkatanarasimha Raju , I.L.R. (1937) Madras I: A.I.R. 1936 PC 264 (1936) 44 L.W. 408 (Maynes Hindu Law, 11th Edition, 1950, pg. The partition so made however, must be fair and equal. See Kandaswami v. Doraiswami Aiyar (1878-1980) I.L.R. (2) Madras 317 and Venkatapalhi Raju v. Venkatanarasimha Raju , I.L.R. (1937) Madras I: A.I.R. 1936 PC 264 (1936) 44 L.W. 408 (Maynes Hindu Law, 11th Edition, 1950, pg. 547 and 548) If the partition is unequal and unfair it is open to the sons if they are majors, to repudiate the partition.” I perused the judgement in A.I.R. 1951 Madras 506 = 1950 (2) M.L.J. 353 . In fact Mr. S. Gopalaratnam learned senior counsel took me through the entire judgement. That was a case dealing with the rights of minor sons only. No doubt in that judgement the following passages are found in the separate and concurrent judgement of Justice Viswanatha Sastri: “Where a partition is effected by a Hindu father between himself and his sons in the exercise of his power and the sons are allottedit would be open to the sons to have the partition set aside on the ground of gross inequity or fraud. If the sons happen to be minors at the time of partition, they can have the partition set aside on their attaining majority. In other words, the transaction is not void but only voidable at the option of the sons.” “If the partition is unequal and unfair, it is open to the sons, if they are majors, to repudiate the partition; but if they are minors, it is open to them to avoid that partition by appropriate proceedings after they attain majority. The partition therefore will be good only if it is set aside.. The partition will be valid in such circumstances until it is avoided by the minors and until it is repudiated by the major sons.” As already stated, the learned Judges in that case are concerned only with the interest of minors. There was no question at all before them as to whether a mere repudiation by the major sons would be enough or should they go one step further and seek to set aside the document itself. There was no question at all before them as to whether a mere repudiation by the major sons would be enough or should they go one step further and seek to set aside the document itself. No where it is held in that judgement, if I may say so with greatest respect, that as far as adult sons are concerned, mere unilateral repudiation by them alone would be sufficient to have any relief which they want and which may run inconsistent with the document already on record and binding on them. The argument of Mr. S.V. Jayaraman, if accepted, would mean that a minor coparcener must take steps for a judicial rescission while an adult coparcener need not do it. In this context I refer to the judgement of this court in the case reported in 1913 (Vol. 24) M.L.J. 592. “It sems to me that, even if a ward is obliged to have an alienation by his guardian set aside by a judicial declaration before he could recover the property, it is afortiori case where the alienation was made by an adult plaintiff himself or his predecessor-in-title. An alienation by a guardian beyond his powers is really void, whereas an alienation by an adult is only voidable.” In view of the categorical pronouncements of law rendered in the decisions referred to in 1913 (Vol. 24) M.L.J. 592; 58 L.W. 176 = 1945 P.C.54 and 1953 1 M.LJ. 476 = 66 L.W. 304 on the legal requirement to have a document relating to a voidable transaction set aside, I have no difficulty at all in holding that the suit as framed without a prayer to set aside the document dated 27.03.70 is bad in law and in the absence of such a prayer, the main relief of partition prayed for in the suit cannot be granted at all though for that relief the suit is within time. Article 59 of the Limitation Act prescribes a period of three years to cancel or set aside an instrument and the time starts running when the facts entitling the plaintiff to have the instrument set aside first become known to him. There is no dispute at the Bar that if Article 59 of the Limitation Act is applied to the case on hand, then the suit is definitely out of time. In fact the judgement reported in 1913 (Vol. There is no dispute at the Bar that if Article 59 of the Limitation Act is applied to the case on hand, then the suit is definitely out of time. In fact the judgement reported in 1913 (Vol. 24) M.L.J. 592 lays down the law that if the relief for setting aside an instrument is barred by limitation and though the other relief prayed for in the suit is within the law of limitation, yet no relief at all could be granted, in view of the relief omitted to be prayed for being barred by limitation. 18. On Issue No.(f) again the law laid down by the courts is very clear. The law on this point, as declared by the courts, is as follows: In 1950 2 M.L.J. 353 referred to supra, I find the following extracts: “If the sons happen to be minors at the time of the partition, they can have the partition set aside on their attaining majority. But it is equally open to the sons to acquiesce in and accept the transaction (See 25 M.L.J. 188 and I.L.R. 29 All. 37). In other words, the transaction is not void but only voidable, at the option of the sons and if the latter seek to stand by it or enforce its terms, it will not be open to the father to plead any invalidity of the arrangement on the ground of the inequality of the allotments.” On going through the evidence of P.W.1, the deceased first plaintiff, it is clear that he had acted upon the partition effected by his father Venkatasamy Naidu. The relevant portions of his evidence in cross are as follows: “In Ex.A.13 I have been allotted lands in S. Nos. The relevant portions of his evidence in cross are as follows: “In Ex.A.13 I have been allotted lands in S. Nos. 576, 577, 580 and 581 and they are all contiguous areas; I do not know whether in respect of those lands my name had been transferred in the revenue records; after my fathers death (it was on 05.09.74) I have been paying the revenue due to the Government in respect of those lands; for those lands I have paid revenue on 04.02.74; I can produce the kist receipts; I deny that I have paid revenue without any protest; the house bearing old No. 4/4 and New No. 152-156 in Perumal Koil Street at Kuchipalayam Road stands registered in the name of Muthu Naidu; under Ex.A.10 the said house property was allotted to my father; the municipality records have been changed in my fathers name in the year 196 6; under Ex.A.13 those house properties were allotted to me and municipal records have been transferred in my name; the premises is occupied by one Selvaraj for running his dispensary; I have given the premises on rent to Selvaraj; I am collecting the monthly rent of Rs. 50/-; I am paying property tax for the house; the house property has been in my occupation even prior to Ex.A.13.” Though in the latter portion of his evidence he would state that the said house property was in his occupation even prior to Ex.A.13 and that his possession is not traceable to Ex.A.13, yet I do not find any legal material to accept this evidence. Again he had stated in his evidence in cross as follows: “In respect of the lands allotted to me in the year 1970 (Ex.A.13 is dated 27.03.70) patta had been transferred in my name; I did not object to the revenue authorities for changing the patta in my name; after my fathers death, I have paid kist for the lands; Ex.A.52 would not show that I have paid kist under protest; the house in Kuchipalayam Road stands registered in the name of Muthu Naidu in the municipal records prior to 1966; under Ex.A.10 they were allotted to my father; pursuant to Ex.A.13 the property registers in the municipality for those properties have been changed in my name; I have not objected to it; I am continuing to pay house tax; I am enjoying the property by letting it out and collecting rents; I have not shared the rental income either with the first defendant or my father.” These materials in the evidence of P.W.1 establish beyond doubt that he had accepted and acted upon Ex.A.13. Therefore in view of the law on this point referred to supra, the plaintiff should be non-suited on this ground also. 19. Now I address myself to Issue No.(g) framed by this court. I have already held that the suit properties are the self acquisitions of Venkatasamy Naidu. The “will” is dated 20.04.70 and it is marked as Ex.B.34 in this case. The testator died only on 05.09.74. Though the deceased first plaintiff had pleaded that the first defendant obtained the “will” executed by the testator using undue influence, yet he had not given any evidence in regard thereto. Even otherwise, I find that the execution of the “Will” marked as Ex.B.34 is not surrounded by any suspicious circumstances. The learned trial Judge had dealt with this under Issue No. 5; he had considered the entire materials on record and had come to the conclusion that the “will” is true, valid and binding. I cross checked the reasons given by the learned trial Judge with reference to the materials on record and I do not find that the learned trial Judge had committed any error at all. He had taken into account all the relevant materials and had came to the correct and legal conclusion that the “will” is true, valid and binding. I cross checked the reasons given by the learned trial Judge with reference to the materials on record and I do not find that the learned trial Judge had committed any error at all. He had taken into account all the relevant materials and had came to the correct and legal conclusion that the “will” is true, valid and binding. I also independently applied my mind to the materials on record in that regard and I am in entire agreement with the learned trial Judge. Therefore I hold that the “will” relied upon by defendant No. 3 is true, valid and binding. 20. Coming to Issue No.(h) and (i) framed by this court, in view of my finding on the earlier issues regarding the nature of properties and the binding effect of the partition deed dated 27.03.70, these issues need not be answered at all, as they do not survive any more. In any event I find that there are no materials at all to discredit the sales in favour of defendants 4 to 9. I also find that defendants 8 and 9 had made considerable improvements at a heavy cost in the properties purchased by them. Though the deceased first plaintiff had been a witness to these improvements, yet he had not chosen to object to it on the basis of his alleged right as claimed in the plaint. Under these circumstances I hold that the sales in favour of defendants 4 to 9 are not vitiated on any ground known in law and defendants 8 and 9 had definitely made improvements to the suit property. The deceased first plaintiff had acquiescised in the improvements made by defendants 8 and 9. 21. I now take up Issue (j) for consideration. The allegation in the plaint in regard to this issue is found in Paragraph 9 (c) of the plaint. Under Ex.A.13 the deceased first plaintiff was given “B” Schedule properties. Venkatasamy Naidu and the second defendant were given the other schedules of properties. The document quotes the value of the property allotted to the deceased first plaintiff at Rs. 49,500/- while the value of the properties allotted to Venkatasamy Naidu and the second defendant was quote d at Rs. 1,55,914/- and Rs. 1,18,170/- respectively. This is the only ground on which the document is attacked as unequal partition. The document quotes the value of the property allotted to the deceased first plaintiff at Rs. 49,500/- while the value of the properties allotted to Venkatasamy Naidu and the second defendant was quote d at Rs. 1,55,914/- and Rs. 1,18,170/- respectively. This is the only ground on which the document is attacked as unequal partition. Ex.A.21 is the notice dated 29.09.71 issued on behalf of the plaintiff. There the allegation is that the properties were not divided equally and the value of the properties allotted to the deceased first plaintiff was very low. Having the averments in the plaint and the notice referred to above in mind, I perused the oral evidence of P.W.1. In chief examination in this regard he had stated only as follows: “Father did not inform me about the intended partition; under Ex.A.13 I have not been given my due share; I am given only 1/4th of what my father got under Ex.A.13; there is no equal partition in Ex.A.13.” Except this he had not given any other material at all. But I find from his evidence in cross that the properties allotted to him under Ex.A.13 includes the lands in S. Nos. 576, 577, 580 and 581 and all those lands are in the same block. He would further admit in his evidence in cross that there are a number of factories in Periyanaickenpalayam (the lands allotted to the deceased first plaintiff under Ex.A.13 are situated only in Periyanaickenpalayam). He further added that in Periyanaickenpalayam a factory in the name of Lakshmi Machine Works with an investment of Rs. 10 crores is functioning, where more than 2000 people are employed. It is his further admission that the lands allotted to him under Ex.A.13 are four furlongs away from the said factory. A suggestion was put to him that the lands allotted to him in Periyanaickenpalayam is capable of being exploited for construction of factories and he denied. He also denied that he does not know whether Periyanaickenpalayam is an industrial area. But however he would admit that all agricultural lands in Periyanaickenpalayam are being converted into house plots and being sold. A suggestion was put to him that the lands allotted to him in Periyanaickenpalayam is capable of being exploited for construction of factories and he denied. He also denied that he does not know whether Periyanaickenpalayam is an industrial area. But however he would admit that all agricultural lands in Periyanaickenpalayam are being converted into house plots and being sold. Therefore there is no doubt at all that substantial properties allotted to the deceased first plaintiff are in an already developed area and without incurring any further expenditure, the deceased first plaintiff would be in a position to put those properties to a better use than the other properties allotted to the other sharers. On the above noted facts and in view of the very vague and flimsy evidence placed by P.W.1, I am not inclined to hold that Ex.A.13 is bad on the ground of unequal and unfair partition. Mere value as quoted in Ex.A.13 for the various schedules of properties by itself cannot be a clear indication about unequal partition. 22. In the light of my discussion as referred to above, I find that there are no merits in the appeal and it is accordingly dismissed. No costs.