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2001 DIGILAW 500 (MAD)

Noorunissaalias Pichamma v. Rahaman Bi

2001-04-20

P.SATHASIVAM, P.THANGAVEL

body2001
Judgment P. Thangavel, J. The appeals in A.S.No.228 of 1990 and Cross-objection No.116 of 1995 in A.S.No.228 of 1990, A.S.No.619 of 1990 and A.S.No.759 of 1990 are filed against the judgment and decree dated 1.11.1989 and made in O.S.No.56 of 1986 on the file of the learned Subordinate Judge, Tindivanam, by plaintiff, third defendant, 6th defendant and 9th defendant respectively. 2. The facts that are necessary for disposal of these appeals and cross objection are as follows: Mohammed Ali Maraicair has married the first defendant and has given birth to defendants 2 to 6, his sons and plaintiff and defendants 7 to 9 his daughters. Mohammed Ali Maraicair was carrying on business in steel under the name and style of “Pondy Steel Agencies” at Anna Salai, Pondicherry and in brass vessels under the name and style of “Moula Sahib Stores” in Big Market, Pondicherry by investing about Rs.2,00,000 in the abovesaid shops. The properties described in plaint ‘A’, ‘B’, ‘C’, ‘D’ and ‘E’ Schedules belonged to Mohammed Ali Maraicair. Mohammed Ali Maraicair died on 30.5.1984 leaving the abovesaid properties and the plaintiff and defendants as his heirs. The plaintiff and defendants are entitled to the abovesaid properties as heirs. The plaintiff and defendants are enjoying the ‘A’ Schedule properties inclusive of items 12 and 13 jointly after the death of Mohammed Ali Maraicair. The plaint ‘C’ Schedule properties are deposits in bank and also decrees obtained by Mohammed Ali Maraicair against the persons who borrowed money from him. The properties described in ‘D’ Schedule were purchased from the income derived from the other properties described in the plaint Schedules. The properties described in ‘E’ Schedule were purchased by Mohammed Ali Maraicair in favour of his wife, the first defendant, but enjoyed by him during his life time till his death. The first defendant is attempting to sell the property in Kottakuppam in favour of one Iluvutheen Sahib, son of Jain Ullutheen Sahib. The first defendant has no right to sell. The defendants are claiming that Mohammed Ali Maraicair had executed a Will with regard to some of the items of these properties. The said Will is not genuine and it should have been forged by the defendants only to defeat the right of the plaintiff in the suit properties. The first defendant has no right to sell. The defendants are claiming that Mohammed Ali Maraicair had executed a Will with regard to some of the items of these properties. The said Will is not genuine and it should have been forged by the defendants only to defeat the right of the plaintiff in the suit properties. In any event, Mohammed Ali Maraicair has no right to execute a Will with regard to the portions of the suit properties in favour of some of his heirs and it is not valid in law. The defendants are attempting to remove the stock in trade from the premises wherein Mohammed Ali Maraicair was carrying on business, and also the properties described in ‘B’ Schedule with a view to prevent to plaintiff from getting her due share. An advocate-Commissioner has to be appointed to take inventory of the stock in trade in Pondy Steel Traders and Moulana Sahib Metal Stores in Pondicherry. The plaintiff has issued notices to the defendants on 1.4.1986 and 11.6.1986 to divide the properties left by Mohammed Ali Maraicair and allot her share. The defendants 1 and 3 to 7 had given a reply notice on 23.4.1986 containing untenable allegations. It is under the said circumstances, the plaintiff who is the appellant in A.S.No.228 of 1990 on the file of this Court has filed the suit for partition and separate possession of her 7/112 share, to decide the mesne profits underO.20 , Rule 12, C.P.C. for accounting of the income from items 12 and 13 in plaint ‘A’ Schedule properties and also for costs. 3. Fifth defendant, adopted by defendants 1, 3, 4, 6 and 7 filed a written statement and the 6th defendant filed additional written statement resisting the claim made by the plaintiff on the following grounds: The plaintiff and defendants are heirs of Mohammed Ali Maraicair who died on 30.5.1984. Mohammed Ali Maraicair and his wife, the first defendant executed a Will on 15.9.1980 to the knowledge of the plaintiff and her husband with regard to items 1 to 7, 10 and 11 in plaint ‘A’ Schedule properties. The said Will is valid in law to an extent of 1/3rd of the properties owned by Mohammed Ali Maraicair and his wife first defendant. The said Will was accepted and properties were delivered to the possession of the beneficiaries. The said Will is valid in law to an extent of 1/3rd of the properties owned by Mohammed Ali Maraicair and his wife first defendant. The said Will was accepted and properties were delivered to the possession of the beneficiaries. Item Nos.1 to 7, 10 and 11 in plaint ‘A’ Schedule properties are not liable for partition. Mohammed Ali Maraicair had again executed another Will on 29.8.1981 duly attested by witnesses with regard to item Nos.8, 9 and 13 in plaint ‘A’ Schedule properties and if the abovesaid Will is valid, the plaintiff cannot claim partition in the abovesaid properties also. Item No.12 in plaint ‘A’ Schedule properties is a business carried on under the name and style of “Pondy Steel Agencies” exclusively by third defendant even during the life time of Mohammed Ali Maraicair. The said business was started in the year 1984. Mohammed Ali Maraicair did not have any interest in the abovesaid business and therefore, the plaintiff cannot claim any share in the business described in item No.12 in plaint ‘A’ Schedule properties. Mohammed Ali Maraicair gifted item No.13 in plaint ‘A’ Schedule to defendants 4 and 6 even during his life time and therefore, the Will dated 29.8.1981 cannot take away the right of the defendants 4 and 6 in item No.13 in plaint ‘A’ Schedule properties. The defendants 4 and 6 have been carrying on business under the name and style of Mowla Sahib Metal Stores after getting the assessment order transferred to their names with the consent of Mohammed Ali Maraicair even during his life time. Therefore, Mohammed Ali Maraicair was not the owner of the said item even before his death. Item No.13 in plaint ‘A’ Schedule is the partnership business in the name of defendants 4 and 6 and therefore, the said business cannot be considered to be a family business to lay any claim for a share in the said business by the plaintiff. The properties described in ‘B’ Schedule are jewels and they are not in existence. The jewels available, if any, out of the jewels described in ‘B’ Schedule, the said jewels belonged to the first defendant. The plaintiff cannot lay any claim over the jewels owned by the first defendant. Mohammed Ali Maraicair has nothing to do with the jewels owned by the first defendant. The jewels available, if any, out of the jewels described in ‘B’ Schedule, the said jewels belonged to the first defendant. The plaintiff cannot lay any claim over the jewels owned by the first defendant. Mohammed Ali Maraicair has nothing to do with the jewels owned by the first defendant. The plaintiff had taken 50 sovereigns of gold out of the jewels owned by the first defendant and the same was not returned to the first defendant. Since the first defendant has claimed return of the 50 sovereigns from the plaintiff, the suit was filed by the plaintiff at the instance of her husband for partition of properties inclusive of 157 sovereigns of jewels mentioned in ‘B’ Schedule. Plaintiff is not entitled to claim partition in plaint ‘B’ Schedule properties. With regard to plaint ‘C’ Schedule properties, Mohammed Ali Maraicair had deposited a sum of Rs.1,15,000 in Union Bank of India, State Bank of India and Indian Overseas Bank at Pondicherry and the said deposits along with accrued interest are available. The alleged decrees obtained by Mohammed Ali Maraicair in Court for the loans allegedly advanced by him to third parties are to be proved with regard to their existence to claim partition as mentioned in plaint ‘C’ Schedule. The 1st Item in ‘D’ Schedule is a business carried on under the name and style of “Bharat Metal Stores” at 139, Thiagu Mudali Street by the 6th defendant along with his partner Siddique. The said business was started from and out of the business earnings in Moula Sahib Metal Stores and with the money of the other partner Siddique. The business carried on under Moula Sahib Metal Stores by defendants 4 and 6 was from the life time of Mohammed Ali Maraicair and any money or stock in trade provided to that new business by Mohammed Ali Maraicair was only a gift. Therefore, the plaintiff is not entitled to claim any partition in 1st items of plaint ‘D’ Schedule property, namely business carried on under the name and style of “Bharat Metal Stores” at 139, Thiagu Mudali Street, Pondicherry. The property described in plaint ‘E’ Schedule was purchased by 1st defendant on 22.11.1960 with the help and aid of the 1st defendant's father who was affluent and was having many business of his own. The property described in plaint ‘E’ Schedule was purchased by 1st defendant on 22.11.1960 with the help and aid of the 1st defendant's father who was affluent and was having many business of his own. Mohammed Ali Maraicair has nothing to do with the said property as he had inherited only one plot from his ancestors. The properties described in plaint ‘E’ Schedule property are separate property of 1st defendant and she sold the said property and purchased the property described as second item in plaint ‘D’ Schedule which is a house property at Pondicherry, on 20.8.1987 for a sum of Rs.86,000. The first defendant is the absolute owner of the second item in ‘D’ Schedule and the settled the abovesaid property in favour of the 6th defendant by means of registered document on 3.11.1987. The 6th defendant was put in possession of the said property after accepting the gift by her 6th defendant has been in possession and enjoyment of the second item in plaint ‘D’ Schedule from 3.11.1987. Therefore, second item in ‘D’ Schedule or ‘E’ Schedule properties are not liable for partition as claimed by the plaintiff. The plaintiff is not entitled to the reliefs as claimed in the plaint. But on the other hand, Mohammed Ali Maraicair had purchased properties described in the annexure to the written statement filed by defendants 1 and 3 to 7 in the name of the husband of the plaintiff and has been in possession and enjoyment of the said properties by Mohammed Ali Maraicair. The jewels worth about Rs.1,50,000 shown as 4th item in the abovesaid annexure has also been given by the late Mohammed Ali Maraicair to the plaintiff's husband and therefore, the said properties should also be taken into consideration while deciding the claim made by the plaintiff. In view of the foregoing reasons, the abovesaid defendants have sought for dismissal of the suit. 4. The 9th defendant has filed a written statement supporting the claim of the plaintiff and opposing the stand taken by the other contesting defendants on the following grounds: Mohammed Ali Maraicair died on 30.5.1984 leaving the properties described in the plaint Schedules. This defendant was not in joint possession of the said properties after the death of Mohammed Ali Maraicair, her father. Defendants 1 to 6 alone were appropriating the income from the estate of the deceased Mohammed Ali Maraicair. This defendant was not in joint possession of the said properties after the death of Mohammed Ali Maraicair, her father. Defendants 1 to 6 alone were appropriating the income from the estate of the deceased Mohammed Ali Maraicair. If defendants 7 and 8 had also remained in joint possession, they are also equally liable to account for the income from the estate of the deceased Mohammed Ali Maraicair. The new business started under the name and style of “Bharat Metal Store” at Thiagu Mudali Street, Pondicherry, was from the fund got out of the estate of the deceased Mohammed Ali Maraicair more particularly by using the stock in trade in the business described as item Nos.12 and 13 in plaint ‘A’ Schedule. The value of the said business Will be more than Rs.1,00,000. It is only to secrete a stock in trade from the business described as item Nos.12 and 13 in plaint ‘A’ Schedule, the business under the name and style of “Bharat Metal Stores” has been started and it has been done so only to diminish the quantum of the share that has to be given to this defendant, plaintiff and other daughters in the estate of the deceased Mohammed Ali Maraicair. Bajaj Scooter bearing registration No. PYS.9000, Moped bearing registration No. PYP.927 and Bajaj Chetak Scooter bearing registration No. PYM.541 are two wheelers which are omitted to be included in the Schedule of properties in the plaint. The abovesaid two wheelers are also liable to be partitioned as the said two wheelers were purchased out of the funs from the estate of the deceased Mohammed Ali Maraicair. The said items are described as item Nos.2 to 4 in th Schedule to the Written statement. The money standing in the bank account are not correctly described in the plaint for the purpose of partition and the said details Will be given in due course of time. This defendant has issued a notice to the other defendants through her advocate on 24.1.1986 and a reply was sent by defendants 1 to 7 on 6.2.1986 through their counsel containing untenable allegations. The division was not effected as requested in the notice. This defendant has issued a notice to the other defendants through her advocate on 24.1.1986 and a reply was sent by defendants 1 to 7 on 6.2.1986 through their counsel containing untenable allegations. The division was not effected as requested in the notice. A Receiver has to be appointed to take charge of the estate of the deceased Mohammed to take charge of the estate of the deceased Mohammed Ali Maraicair to collect the income from the properties and to apportion in accordance with their shares. This defendant is entitled to 7/112 share in the properties left by Mohammed Ali Maraicair and is also entitled to accounting by defendants 1 to 6 or by defendants 1 to 8. This defendant has also paid necessary court-fee for passing preliminary decree with regard to her share. 5. After considering the material evidence available on record, the learned Subordinate Judge, Tindivanam has come to the conclusion that the Will dated 15.9.1980 i.e., Ex.B-2 is true and valid and binding on the plaintiff and 9th defendant as bequeathing of properties in favour of the beneficiaries was within 1/3rdrd of the properties owned by Mohammed Ali Maraicair and his wife, the first defendant, that therefore, item Nos.1 to 7, 10 and 11 in plaint ‘A’ Schedule properties are not liable for partition, that Mohammed Ali Maraicair has no right to execute the second Will dated 29.8.1981 since he has already executed a Will Ex.B-2, dated 15.9.1980 with regard to 1/3rd share in the properties owned by him, that the business described as item Nos.12 and 13 in Plaint ‘A’ Schedule properties have to be treated only as a business of Mohammed Ali Maraicair and not that of defendants 3, 4 and 6 and that therefore, item Nos.8, 9, 12 and 13 in plaint ‘A’ Schedule properties are liable to be partitioned. The trial Court has held that the plaint ‘B’ Schedule properties, are not separate properties of the first defendant, but the properties of Mohammed Ali Maraicair and therefore held that the abovesaid plaint ‘B’ Schedule properties are also liable for partition. Likewise the trial Court has held that the properties described in plaint ‘C’ Schedule are also liable for partition. The trial Court as held that the plaintiff is entitled to partition of the property described in plaint ‘D’ Schedule. Likewise the trial Court has held that the properties described in plaint ‘C’ Schedule are also liable for partition. The trial Court as held that the plaintiff is entitled to partition of the property described in plaint ‘D’ Schedule. The learned trial Judge has come to the conclusion that the properties described in plaint ‘E’ Schedule are separate properties of the first defendant and therefore, the said properties are not liable for partition. In view of the said position the learned trial judge has come to the conclusion that the plaintiff and 9th defendant are each entitled to 7/112 shares in the properties described in the plaint Schedules except item Nos.1 to 7, 10, 11 in plaint ‘A’ Schedule and ‘E’ Schedule properties and are also entitled to mesne profits and the quantum of mesne profits payable to the plaintiff and the 9th defendant has been ordered to be decided underO.20 , Rule 12, C.P.C. separately. Cost was ordered to be paid to the plaintiff in the suit by the contesting defendants. Aggrieved at the judgment and decree dated 1.11.1989 and made in O.S.No.56 of 1986 on the file of the learned Subordinate Judge, Tindivanam, the plaintiff has filed the above appeal in A.S.No.228 of 1990, the third defendant has filed Cross-objection No.116 of 1995 in A.S.No.228 of 1990. The 6th defendant has filed appeal in A.S.No.19 of 1990 and the 9th defendant has filed an appeal in A.S.No.759 of 1990 appellants on the file of this Court. 6. The husband of the plaintiff Thiru. Abdul Gaffoor and the Advocate Commissioner Thiru K.Janakiraman were examined as P.Ws.1 and 2 respectively and Exs.A-1 to A-8 were marked on the side of the plaintiff before the trial Court. The 5th defendant Thiru Kammarudheen, 3th defendant Thiru Muthu Mohammed, 6th defendant Thiru Abdul Kadher, 4th defendant Thiru Hanifa and the husband of the 9th defendant Thiru Ansari were examined as D.Ws.1 to 5 respectively and Exs.B-1 to B-42 were marked on the side of the contesting defendants before the said trial Court. The report of the Commissioner, P.W.2 was marked as Ex.C-1 before the trial Court. 7. The report of the Commissioner, P.W.2 was marked as Ex.C-1 before the trial Court. 7. According to the plaintiff and as per the evidence of P.W.1, the plaint ‘A’, ‘B’, ‘C’, ‘D’ and ‘E’ Schedule properties are properties of one Mohammed Ali Maraicair and he died intestate on 30.5.1984 leaving the plaint Schedule properties for being succeeded by his wife, the 1st defendant, his sons the defendants 2 to 6 and daughters, the plaintiff and defendants 7 to 9. The second defendant Yusuf died during the pendency of this proceedings and therefore, the respondents 10 to 13 were impleaded as heirs of the deceased second respondent who is the second defendant before the trial Court. The contention of the 9th defendant and the evidence of her husband D.W.5 are in supporting line of the case of the case of the plaintiff and the evidence of P.W.1 the husband of the plaintiff. Therefore, the plaintiff and the 9th defendant claim partition of 7/112 share each in the properties described in the plaint Schedule. But the other contesting defendants contend that late Mohammed Ali Maraicair and his wife, the 1st defendant herein have executed the Will Ex.B-2, dated 15.9.1980 bequeathing certain properties owned by them in favour of defendants 3 to 6 that the properties covered under the Will is not liable for partition, that Mohammed Ali Maraicair had also said to have executed a second Will Ex.B-1, dated 29.8.1981 with regard to certain other properties owned by him and if the abovesaid Will is true and valid, the properties described in the said document cannot also liable for partition. The properties described in ‘B’ Schedule are not available for partition as movables owned by late Mohammed Ali Maraicair, that some jewels available in the family are the jewels of the 1st defendant, which is not liable for partition, that the plaint ‘E’ Schedule property is the separate properties of 1st defendant purchased with the help of her father Naina Mohammed who is a very rich man, that ‘E’ Schedule properties were sold by the 1st defendant and purchased second item of ‘D’ Schedule property and the abovesaid property was settled in favour of the 6th defendant by the 1st defendant and that therefore the abovesaid properties are also not liable for partition. According to the contesting defendants, item 12 in plaint Schedule ‘A’, Pondy Steel Agency at 184, Anna Salai,Pondicherry is a business started by 3rd defendant in 1984 and late Mohammed Ali Maraicair has no interest in the said business so as to lay a claim by the plaintiff or 9th defendant for partition. It is also the case of the contesting defendants that the business under the name and style of Moula Sahib Metal Stores at door Nos.321 and 322, Big Market, Pondicherry, was started in 1983 as a partnership concern by late Mohammed Ali Maraicair and gifted to defendants 4 and 6 even during his lifetime, that defendants 4 and 6 were continuing the abovesaid partnership business thereafter in their own right. It is also the case of the 6th defendant that the 1st item of ‘D’ Schedule property, viz., Bharat Metal Store at 139, Thiagu Mudali Street, Pondicherry was started as partnership business by him along with one Siddique for sale of brass and eversilver vessels and the said business was started even during the lifetime of late Mohammed Ali Maraicair with the earnings from Moula Sahib Metal Store. It is on those grounds the contesting defendants contend that the business described in items 12 and 13 in plaint ‘A’ Schedule properties and 1st item in plaint ‘D’ Schedule property are not liable for partition. 8. A perusal of the plaint ‘B’ Schedule properties would disclose that late Mohammed Ali Maraicair left 157 sovereigns of gold jewels and the said quantum of gold jewels were described as 85 items. The plaintiff who claimed the abovesaid quantum of gold jewels were left by her father late Mohammed Ali Maraicair, had not appeared before the trial Court to depose with regard to the existence of the abovesaid jewels to her personal knowledge. The reason given for non appearance was that she is the parthanashin lady. She might have been examined even by appointment of Commissioner, if she cannot appear before the Court to depose with regard to the existence of the jewels described in plaint ‘B’ Schedule properties. No reason was given as to why plaintiff has not chosen to examine herself as mentioned above. She might have been examined even by appointment of Commissioner, if she cannot appear before the Court to depose with regard to the existence of the jewels described in plaint ‘B’ Schedule properties. No reason was given as to why plaintiff has not chosen to examine herself as mentioned above. The evidence of P.W.1, her husband is not specific with regard to the items described in plaint ‘B’ Schedule and there is also no acceptable evidence on the side of the plaintiff with regard to the existence of the jewels described in plaint ‘B’ Schedule. The plaintiff has issued a notice claiming partition with regard to the properties left by her father as seen in Ex.A-1, dated 1.4.1986 to the defendants. In the said notice the plaintiff has not made any mention with regard to the existence of jewels as described in plaint ‘B’ Schedule properties. There is absolutely no mention of existence of jewels left by her father. No acceptable reason was given as to why no claim was made by her by mentioning the properties described in plaint ‘B’ Schedule in Ex.A-1 notice. In the light of the abovesaid circumstances, the contention raised by learned counsel for the contesting defendants who were the contesting respondents in the appeals that the claim with regard to the existence of jewels described in plaint ‘B’ Schedule properties at the time of filing of the suit is only an afterthought and therefore the plaintiff is not entitled to lay any claim for partition of properties described in plaint ‘B’ Schedule, cannot be brushed aside as unsustainable one. The fact of P.W.2 Thiru K. Jankiraman visiting the residence of the contesting defendants to verify the almyrahs and the fact of some of the contesting defendants not available at that time and also not permitting him to take inventory of the properties available in the said almyrahs will not help the plaintiff to establish that late Mohammed Ali Maraicair had left the jewels described in plaint ‘B’ Schedule. Ex.C-1 may not also be of any help to establish the said fact. Ex.C-1 may not also be of any help to establish the said fact. In view of the foregoing reasons, the contention raised by the contesting defendants out of whom D.Ws.1 to 4 were examined, that late Mohammed Ali Maraicair had not left any jewels for the family at the time of his death and that the jewels available with 1st defendant are the jewels given to her by her parents and the said jewels are not liable for partition as claimed by the plaintiff and the 9th defendant has to be accepted. Accordingly, the conclusion arrived at by the trial Court that the plaintiff and 9th defendant are entitled to 7/112 share in plaint ‘B’ Schedule property cannot be sustained. 9. The contesting defendants produced Ex.A-6, dated 22.11.1960 sale deed executed by one Allah Pichai Maraicair and others in favour of 1st defendant for Rs.4,500 with regard to plaint ‘E’ Schedule properties. A perusal of Ex.A-6 would disclose that the first defendant had purchased the properties described in plaint ‘E’ Schedule by paying the sale consideration to the vendors and the said properties were put in the possession of the 1st defendant. A perusal of Ex.A-6 would not disclose that the plaint ‘E’ Schedule properties were purchased by late Mohammed Ali Maraicair in benami in the name of 1st defendant. None of the parties to A-6 was also examined to establish that the properties described in ‘E’ Schedule properties under Ex.A-6 were purchased by late Mohammed Ali Maraicair in favour of the 1st defendant. Exs.B-3 and B-4 are lease deeds executed by the husband of the plaintiff in favour of the 1st defendant for taking the properties described in ‘E’ Schedule on lease and for payment of lease amount to the 1st defendant. P.W.1 himself admits during cross-examination that he was cultivating plaint ‘E’ Schedule properties for 10 years and was paying lease amount to the 1st defendant. Admittedly plaint ‘E’ Schedule properties were plotted out and sold to third parties as house sites, etc. P.W.1 himself would also admit that he had purchased 10 such plots 1st defendant for consideration. The abovesaid admissions of P.W.1 himself would disclose that the 1st defendant was the owner of the properties described in plaint ‘E’ Schedule and she was enjoying the said properties in her own right by leasing out even to the husband of the plaintiff. P.W.1 himself would also admit that he had purchased 10 such plots 1st defendant for consideration. The abovesaid admissions of P.W.1 himself would disclose that the 1st defendant was the owner of the properties described in plaint ‘E’ Schedule and she was enjoying the said properties in her own right by leasing out even to the husband of the plaintiff. Therefore, the contention raised by the plaintiff and the 9th defendant that plaint ‘E’ Schedule properties were purchased benami in the name of 1st defendant by late Mohammed Ali Maraicair cannot be sustained. The evidence of P.W.3 would disclose that the 1st defendant had purchased out of the sale consideration from plaint ‘E’ Schedule properties, second item of plaint ‘D’ Schedule under Ex.B-23, dated 28.9.1987 from one Munusamy for Rs.86,000. Ex.B-23 further would disclose that the property described as second item in plaint ‘D’ Schedule belonged to the 1st defendant by virtue of the said purchase and she was put in possession of the said property on the date of sale. The evidence of D.W.3 further would disclose that the 1st defendant had settled the property purchased under Ex.B-23 by means of gift settlement deed Ex.B-24, dated 3.11.1987 and put D.W.3, the 6th defendant herein in possession of the said property. The evidence of P.W.3 would disclose that he accepted the settlement deed and he had been in possession and enjoyment of second item of plaint ‘D’ Schedule property in his own right. The abovesaid facts are not disputed by the plaintiff or by 9th defendant. If the evidence produced before the Court by the contesting defendants and the admission made by the P.W.1 referred to above are taken into consideration, the properties described in plaint ‘E’ Schedule are not available for partition to the plaintiff and the 9th defendant and the second item in plaint ‘D’ Schedule property is also not liable for partition. In view of the said position we confirm the conclusion of the learned trial Judge that plaint ‘E’ Schedule properties are not liable for partition, but set aside the finding of the trial Court that second item in plaint ‘D’ Schedule property is liable for partition. 10. In view of the said position we confirm the conclusion of the learned trial Judge that plaint ‘E’ Schedule properties are not liable for partition, but set aside the finding of the trial Court that second item in plaint ‘D’ Schedule property is liable for partition. 10. The contesting defendants even in the pleadings in the written statement admitted the existence of deposit of Rs.1,15,000 in Union Bank of India and State Bank of India Pondicherry and the said deposit amounts were admittedly deposited by late Mohammed Ali Maraicair. D.Ws.1 to 3 also admit in their evidence with regard to the availability of the sum of Rs.1,15,000 in bank deposits and also about the right of plaintiff and 9th defendant to have a share in the said deposits. But the contesting defendants and D.Ws.1 to 4 have not spoken with regard to the decrees said to have been obtained by late Mohammed Ali Maraicair against third pares to whom he allegedly advanced loans. Neither the plaintiff nor the 9th defendant had adduced any acceptable evidence with regard to the existence of money decrees described in plaint ‘C’ Schedule. In the absence of acceptable evidence on the side of the plaintiff or the 9th defendant with regard to the availability of the decrees, they cannot claim partition from the amounts allegedly due to late Mohammed Ali Maraicair from and out of decree passed by Court. But any how if the plaintiff or the 9th defendant is able to produce evidence to the satisfaction of the trial Court at the time of passing final decree with regard to the decree debts described in the plaint ‘C’ Schedule, liberty is being given to the trial Court to consider that for allotment of shares out of it. But we hold that the plaintiff and the 9th defendant are entitled to share only from the bank deposits of Rs.1,15,000 shown in plaint ‘C’ Schedule. We confirm the conclusion of the learned trial Judge in this respect alone. 11. Ex.B-2 (Ex.B-6), dated 15.9.1980 is the Will said to have been executed by late Mohammed Ali Maraicair and his wife, the 1st defendant herein with regard to items 1 to 7, 10 and 11 in plaint ‘A’ Schedule properties and plaint ‘E’ Schedule properties in favour of the beneficiaries. 11. Ex.B-2 (Ex.B-6), dated 15.9.1980 is the Will said to have been executed by late Mohammed Ali Maraicair and his wife, the 1st defendant herein with regard to items 1 to 7, 10 and 11 in plaint ‘A’ Schedule properties and plaint ‘E’ Schedule properties in favour of the beneficiaries. A perusal of Ex.B-2 would disclose that late Mohammed Ali Maraicair and the 1st defendant had bequeathed item 10 in plaint ‘A’ Schedule properties to the 3rd defendant, items 1 to 5 in plaint ‘A’ Schedule properties to 4th defendant, items 6 and 7 in ‘A’ Schedule properties to 5th defendant and item 11 in plaint ‘A’ Schedule properties and ‘E’ Schedule properties to 6th defendant and that the Will has to come into force after the life time of late Mohammed Ali Maraicair and the 1st defendant. Ex.B-1, dated 29.8.1981 is the Will said to have been executed by late Mohammed Ali Maraicair alone in favour of the beneficiaries. A perusal of Ex.B-1 would disclose that out of item No.8 in plaint ‘A’ Schedule properties measuring 21.50 Acres, half share of the said properties were given to grand children born to the second defendant Yusuf and his wife Noor Bibi and the remaining half share Will go to defendants 8 and 9. It is also evident a from perusal of Ex.B-1 that 13th item in plaint ‘A’ Schedule property was given to defendants 4 and 6. The said Will would also disclose that the abovesaid Will come into force only after the life time of late Mohammed Ali Maraicair. The plaintiff is not admitting the execution of the Will by late Mohammed Ali Maraicair or by the 1st defendant with regard to the properties owned by him. The 9th defendant has also not admitted the execution of both Wills Exs.B-1 and B-2, in the pleadings in the written statement. Even- though P.W.1 would admit about the execution of the Will Ex.B-1, dated 29.8.1981 D.W.5 has denied knowledge of the execution of any Will by late Mohammed Ali Maraicair. The contesting defendants are not admitting the execution, truth and validity of Ex.B-1, dated 29.8.1981, but would state that the properties covered under Ex.B-1 are not liable for partition in event of the said Will is true and valid. The contesting defendants are not admitting the execution, truth and validity of Ex.B-1, dated 29.8.1981, but would state that the properties covered under Ex.B-1 are not liable for partition in event of the said Will is true and valid. The contentions raised by the plaintiff and the 9th defendants on the one hand and the other contesting defendants on the other hand would disclose that the plaintiff and the 9th defendant are not admitting the execution of Ex.B-2, dated 15.9.1980 bequeating the properties mentioned therein by Mohammed Ali Maraicair and his wife, the 1st defendant while the contesting defendants are questioning the genuineness and validity of Ex.B-1, dated 29.8.1981. It is also evident from the contention raised by the plaintiff and the 9th defendant that even if it is proved that late Mohammed Ali Maraicair and the 1st defendant had executed Ex.B-2, dated 15.9.1980 and late Mohammed Ali Maraicair had executed Ex.B-1, dated 29.8.1981, the testator and testatrix Will have no right to execute Will for property more than 1/3rd share owned by them and that such bequeating of 1/3rd share to the heirs of late Mohammed Ali Maraicair cannot be valid unless the other heirs give consent after the death of the testator and testatrix for the properties covered under the Will. In this case D.W.1 the 5th defendant had spoken about the execution of Will Ex.B-2 by late Mohammed Ali Maraicair and his wife, the 1st defendant, but he is not an attestor to the abovesaid Will. The evidence of D.Ws.2 to 4 would show that they have come to know about the execution of the Will Ex.B-2 only after 2 or 3 months after the alleged execution. They are admittedly beneficiaries under the Will as already mentioned above. Naina Mohammed is none other than the father of the 1st defendant and grandfather of the plaintiff and other contesting defendants as well as 9th defendant and is one of the attestors along with one P. Mohammed Kodher Drellyane in Ex.B-2. On R. Jeyaraman and one A. Sivasubramaniam are attestors in Ex.B-1. None of the attestors of Exs.B-1 and B-2 was examined to prove the execution of Will by late Mohammed Ali Maraicair and his wife the 1st defendant with free Will and volition without any indusion and in sound disposing state of mind. On R. Jeyaraman and one A. Sivasubramaniam are attestors in Ex.B-1. None of the attestors of Exs.B-1 and B-2 was examined to prove the execution of Will by late Mohammed Ali Maraicair and his wife the 1st defendant with free Will and volition without any indusion and in sound disposing state of mind. No reason was given as to why none of the attestors was examined either by plaintiff or 9th defendant or by the other contesting defendants. The 1st defendant has also not examined herself to prove the execution of Ex.B-2, dated 15.9.1980. If she is a Parthanashin lady, she might have been examined to prove the execution of Ex.B-2 on commission. But it was not done. Therefore we are of opinion that the execution and genuineness of the said Wills Exs.B-1 and B-2 remained unproved as known to law. 12. A perusal of Ex.B-2 would disclose that the said Will come into force after the death of the testator and testatrix. Even though the testator, viz., Mohammed Ali Maraicair died on 30.5.1984, the testatrix, the 1st defendant is still alive. If the clause in Ex.B-2 that the document Will come into force only after the death of the executants is taken into consideration, the Will Ex.B-2 cannot be deemed to have come into force. Therefore, the contesting defendants cannot claim right in the properties described in the Will Ex.B-2 before the death of 1st defendant. But it is relevant to point out that the 1st defendant who has joined the execution of Ex.B-2 and who was Willing to bequeath the properties described in plaint ‘E’ Schedule properties, had admittedly already alienated the plaint ‘E’ Schedule properties to third parties inclusive of P.W.1 who purchased about 10 grounds of house sites in the lay out formed in plaint ‘E’ Schedule properties. As the executants had retained the right of cancellation of the Will Ex.B-2 during the life time, selling plaint ‘E’ Schedule properties to third parties by first defendant Will lead to held that the Will Ex.B-2, in which the 1st defendant was one of the testatrix, had been cancelled so far as the plaint ‘E’ Schedule properties are concerned. 13. Even if the Will Ex.B-2 is genuine, late Mohammed Ali Maraicair cannot alienate more than one-third of the properties owned by him. 13. Even if the Will Ex.B-2 is genuine, late Mohammed Ali Maraicair cannot alienate more than one-third of the properties owned by him. The value of the properties described in plaint ‘A’ Schedule 1st item of plaint ‘C’ Schedule and 1st item of plaint ‘D’ Schedule works out to Rs.12,08,000. The properties said to have been bequeathed under Ex.B-2 works out to Rs.6,05,500 as seen from the plaint filed before the Court. The valuation shown in the plaint has not been disputed in the pleadings in the written statement. There is also no evidence contra to the value shown in the plaint. In view of that this Court has no other alternative except to take the value shown in the plaint as a guiding factor to work out the value of the properties bequeathed under Ex.B-2. If that be so, the properties bequeathed under Ex.B-2 will be of worth more than one-third share to which deceased Mohammed Ali Maraicair has got no right to alienate as per law. 14. In support of the abovesaid views that the testator or testatrix cannot bequeath more than one-third share of his own assets the following legal positions are taken into consideration: (i) In Chapter XXIII of Mohammadan Law of Wills Second Edition 1965, by T.R. Gopalakrishnan, under the head “Limits of testamentary power in Mohammadan Law, it has been commented that the power of Mohammadan to dispose of by Will is circumscribed in two ways and the first limit is to the extent. A Mohammadan can validly bequeath only one third of his not assets, when there are heirs. This rule is based on a tradition of the prophet and the Courts in India have enforced the rule from early times. The object of this rule is to protect the rights of the heirs and where there is no heirs and when all the heirs agree and give their consent the one the one-third limit may be exceeded. While the rule is that a muslim can bequeath only one third of his assets, a bequest in excess of one third is rendered valid by the consent of the heirs whose rights are infringed thereby or where there are no heirs at all. (ii) Sec.189 in Chapter XIII of Mohammedan Law deals with Bequest to heirs. While the rule is that a muslim can bequeath only one third of his assets, a bequest in excess of one third is rendered valid by the consent of the heirs whose rights are infringed thereby or where there are no heirs at all. (ii) Sec.189 in Chapter XIII of Mohammedan Law deals with Bequest to heirs. A bequest to an heir is not valid except to the extent to which the persons who are the heirs of the testator at the time of his death, expressly or impliedly consent to the bequest after his death. It is evident from the abovesaid section of Mohammedan Law that while it permits the making of a Will to a limited extent in favour of stranger or strangers, it does not allow undue preference being given to a particular heir or heirs and bequest to such heir or heirs without the consent of other heirs. It is also evident from the abovesaid provision of law that bequest to an heir or heirs without the consent of other heirs Will be altogether invalid. It is also evident from Sec.195 of the Mohammedan Law that testator may revoke a bequest at any time either expressly or impliedly. (iii) In Bayabai v. Bayabai and another Bayabai v. Bayabai and another Bayabai v. Bayabai and another A.I.R. 1942 Bom. 328(2), it has been held by His Lordship Chagla, J. as follows: “Under Sunni Mahammedan Law, by which the parties are governed, there is a two fold restriction on the testamentary capacity of a testator. He cannot dispose more than one-third of his property, and even with regard to that one-third he cannot bequeath it to his heirs. In this case the deceased had purported to dispose of the whole of his estate, and all the affective bequests made by him are in favour of his heirs. These bequests could have been validated by the consent of the heirs after the death of the testator.” (iv) In Yasim Imambhai Shaikh (deceased by L.Rs) v. Hajarabi and others Yasim Imambhai Shaikh (deceased by L.Rs) v. Hajarabi and others Yasim Imambhai Shaikh (deceased by L.Rs) v. Hajarabi and others A.I.R. 1986 Bom. 357, it has been held as follows: “A Mohammedan cannot by Will dispose of more than 1/3rd of the surplus of his estate after payment of funeral expenses and debts. 357, it has been held as follows: “A Mohammedan cannot by Will dispose of more than 1/3rd of the surplus of his estate after payment of funeral expenses and debts. That bequest in excess of 1/3rd cannot take effect, unless the heirs consent thereto after the death of testator.” (v) The learned counsel for the plaintiff has brought to the notice of this Court the decision reported in Valashiyil Kunhi Avulla and others v. Eengayil Peetikayil Kunhi Avulla and others Valashiyil Kunhi Avulla and others v. Eengayil Peetikayil Kunhi Avulla and others Valashiyil Kunhi Avulla and others v. Eengayil Peetikayil Kunhi Avulla and others A.I.R. 1964 Ker. 200 for deciding the dispute between the parties. In that case the properties of a Mohammedan ‘M’ were divided between his sons ‘A’, ‘B’, ‘C’, ‘D’, and ‘E’, ‘D’ and ‘E’ were allotted more shares than what they were entitled to. In that deed of partition it was mentioned that if any property of ‘M’ was omitted to be included in the said document for division, ‘A’, ‘B’ and ‘C’ alone Will be entitled to divide the such properties between themselves and not ‘D’ and ‘E’ as they were already allotted more properties than what they were entitled to. For division of some other properties omitted to be considered at the time of partition, ‘D’ and ‘E’ filed a suit and the said suit was resisted relying on the clause in the partition deed wherein claim for omitted property was given only to ‘A’, ‘B’ and ‘C’ and not to ‘D’ and ‘E’. In that case it was held as follows: “The bequest to A, B, C by M in respect of the aforesaid properties not having been consented to after his death by the other heirs, viz., D and E was not valid under Mohammedan Law. The relinquishment or the agreement to relinquish by the D and E being within the mischief of Sec.23 of the Contract Act read with Sec.6(a) of the Transfer of property Act was void and D and E were bound by them. The relinquishment or the agreement to relinquish by the D and E being within the mischief of Sec.23 of the Contract Act read with Sec.6(a) of the Transfer of property Act was void and D and E were bound by them. As D and E had nothing to give nor to give up but only to take, they could not be said to have been parties to a family arrangement.” (vi) In Rahumath Ammal and another v. Mohammed Mydeen Rowther and others Rahumath Ammal and another v. Mohammed Mydeen Rowther and others Rahumath Ammal and another v. Mohammed Mydeen Rowther and others (1978)2 MLJ. 499 , a Division Bench of this Court has held as follows: “The bequest to an heir coupled with a bequest to a non-heir has to be reconciled as far as possible and the totality of the instrument cannot, on a hypertechnical ground be rejected in toto. If this is the method by which such an instrument has to be understood and interpreted, then it should be held that the bequest to the first defendant, who is an heir in this case, is not valid, because it is against the personal law, but in so far as the bequest to a non-heir, namely, the second defendant is concerned, it would be operative to the extent of a third of the estate of Seeni Rowther.” The principles laid down with regard to bequeathing of property of a Mohammedan would clearly go to show that a Mohammedan cannot bequeath more than one third of his property and even with regard to that one third he cannot bequeath it to his heirs. If the bequest is to an heir it can be validated by the consent of all the heirs after the death of the testator. It is also clear that bequest in excess of one third of estate cannot take effect unless such bequest is consented by heirs after the death of the testator. In this case, the bequest under Ex.B-2 is only in favour of the heirs of late Mohammed Ali Maraicair and the 1st defendant. Except the beneficiaries under the said Will, other heirs have not consented for such bequeath after the death of late Mohammed Ali Maraicair. In this case, the bequest under Ex.B-2 is only in favour of the heirs of late Mohammed Ali Maraicair and the 1st defendant. Except the beneficiaries under the said Will, other heirs have not consented for such bequeath after the death of late Mohammed Ali Maraicair. It is relevant to point out at this stage that the 1st defendant who is one of the testatrix of Ex.B-2 is still alive and she has alienated part of the property included in the Will Ex.B-2, immediately after the death of her husband, late Mohammed Ali Maraicair. That Will also lead to infer that the Will has been cancelled impliedly by the act of the 1st defendant. 15. Apart executing the Will Ex.B-2, dated 15.9.1980 was executed for more than one third of the assets of late Mohammed Ali Maraicair by joining hands with 1st defendant, his wife, he had again executed another Will Ex.B-1, dated 29.8.1981 with regard to items 8, 9 and 13 in ‘A’ Schedule properties. In view of the legal positions stated above late Mohammed Ali Maraicair has no right to execute the said Will in favour of the beneficiaries while the Will executed under Ex.B-2, dated 15.9.1980 was in excess of one third share of his net assets. As already pointed out, the abovesaid Will is also for heirs, viz., defendants 8 and 9 apart from the non-heirs, viz., grand children of second defendant and his wife as well as to 4th defendant. It is relevant to point out that the execution of the said Will Ex.B-1 has also not been proved while the execution of the said document by late Mohammed Ali Maraicair was not admitted by the contesting defendants. It is in view of this, the plaintiff as well as the 9th defendant had pleaded in the pleadings in the plaint as well as in the written statement of 9th defendant that the properties covered under Ex.B-1 are also liable to be partitioned between the heirs of late Mohammed Ali Maraicair. It is relevant to point out that all the heirs who are not beneficiaries under Ex.B-1 had also not given consent with regard to the bequeath of properties covered under the said document after the death of late Mohammed Ali Maraicair. It is relevant to point out that all the heirs who are not beneficiaries under Ex.B-1 had also not given consent with regard to the bequeath of properties covered under the said document after the death of late Mohammed Ali Maraicair. Totality of the circumstances prevailing in this case with regard to Ex.B-2, dated 15.9.1980 and Ex.B-1, dated 29.8.1981 are taken into consideration we are of clear opinion that the Wills Exs.B-1 and B-2 cannot be taken into consideration while considering the claims made by the rival claimants. If the said two Will are not taken into consideration, the properties except plaint ‘E’ Schedule properties, covered under Ex.B-2, dated 15.9.1980 and Ex.B-1, dated 29.8.1981 are liable to be partitioned among the heirs of the deceased, late Mohammed Ali Maraicair and his wife, 1st defendant. In view of the said position, the conclusion arrived at by the trial Court that items 1 to 7, 10 and 11 in plaint ‘A’ Schedule properties are not liable to be partitioned as claimed by the plaintiff and the 9th defendant cannot be sustained even though the conclusion that the plaint ‘E’ Schedule properties are not liable to be partitioned has to be sustained. 16. The evidence of P.W.1 would disclose that late Mohammed Ali Maraicair was carrying on business in steel as well as in eversilver and brass vessels by having shops at different places in Pondicherry. An attempt was made on the side of the contesting defendants to establish that late Mohammed Ali Maraicair was not carrying on business in steel or eversilver and brass vessels. In the pleadings in the written statement filed by 5th defendant adopted by defendants 1, 3, 4, 6 and 7 it has been specifically admitted that late Mohammed Ali Maraicair was carrying on business described in item No.13 in plaint ‘A’ Schedule, viz., Moula Sahib Metal Stores at door No.321 and 322 in Big Market, Pondicherry and gifted the said business to the defendants 4 and 6 and the said gift was accepted by the defendants 4 and 6 and is carrying on the abovesaid business from the date of gift. It is also specifically pleaded in the pleadings in the written statement that Mohammed Ali Maraicair had given consent to the sales Tax Department for allotment of Sales Tax number to the defendants 4 and 6 and a new number was allotted by the said department for transacting business after cancelling the allotment of Tamil Nadu General Sales Tax Number to late Mohammed Ali Maraicair. The abovesaid admission would disclose that late Mohammed Ali Maraicair was carrying on business at Door No.321 and 322, Big Market, Pondicherry and now known as Moula Sahib Metal Stores. This view also finds support from the averment made in Ex.B-1, dated 29.8.1981 Will said to have been executed by late Mohammed Ali Maraicair wherein item 13 in plaint ‘A’ Schedule was bequeathed in favour of defendants 4 and 6 enforceable after his life time. This Will lend some support, even though the said Will was not taken into consideration for want of proof of execution and on the ground of bequeath exceeding one third of the share by late Mohammed Ali Maraicair. D.W.3 who is 6th defendant would also admit during cross-examination that his father was carrying on business and the said business was now carried on by defendants 4 and 6. It is also admitted that his father was carrying on business till the time of his death and his father gave vessels worth about Rs.30,000 to run Moula Sahib Stores. There is nothing to show, as seen from the records available before the Court, that the said business Moula Sahib Metal Stores with vessels were gifted to defendants 4 and 6, that the gift was accepted and business was carried on as their separate business. It is relevant to point out that the investment has come only from late Mohammed Ali Maraicair and not out of the source of income from defendants 4 and 6. The source of income of defendants 4 and 6 have also not been pleaded and proved to the satisfaction of the Court to run Moula Sahib Metal Stores at Big Market, Pondicherry. In view of the said position we are of opinion that the business subsequently run by defendants 4 and 6 should have been run only by late Mohammed Ali Maraicair and the business should have been carried on by the defendant 4 and 6 as partnership business for some reasons known to the family. In view of the said position we are of opinion that the business subsequently run by defendants 4 and 6 should have been run only by late Mohammed Ali Maraicair and the business should have been carried on by the defendant 4 and 6 as partnership business for some reasons known to the family. Therefore, we hold that the business described as item No.13 is also liable to be partitioned as property left by Mohammed Ali Maraicair. 17. The 6th defendant in the pleadings in the additional written statement has stated that the business under the name and style of Bharath Metal Stores was started as partnership business with one Siddique at door No.139, Thiagu Mudali Street, Pondicherry. It is also pleaded in the said additional written statement by 6th defendant that the defendants 4 and 6 were running business under the name and style of Moula Sahib Metal Stores in Pondicherry, that they earned income from the said business and the said income was used to start the business mentioned in item No.1 in plaint ‘D’ Schedule, viz., Bharath Metal Stores at 139, Thiagu Mudali Street, Pondicherry. The abovesaid pleadings in the additional written statement would disclose that the investment for Bharat Metal Stores had come only from and out of the income of Moula Sahib Metal Stores. It has already been held that Moula Sahib Metal Stores should have been run by late Mohammed Ali Maraicair during his life time and the said business was carried on by defendants 4 and 6 as seen from the evidence available on record. Since the investment has come from the abovesaid Moula Sahib Metal Stores to start the business in 1986 under the name and style of Bharath Metal Stores, the said business has also to be treated as family business. The 6th defendant while he was examined as D.W.3 has stated that his father had given him Rs.25,000 and with that money he had started the business Bharath Metal Stores in 1986. The alleged partnership business was not proved by producing the partnership deed admittedly. It is also evident from the evidence of D.W.3 that the 4th defendant is looking after the business of Moula Sahib Metal Stores. The alleged partnership business was not proved by producing the partnership deed admittedly. It is also evident from the evidence of D.W.3 that the 4th defendant is looking after the business of Moula Sahib Metal Stores. A conjoint reading of the abovesaid pleadings in the additional written statement and evidence would lead to conclude that Bharath Metal Stores should have also been started with the funds of late Mohammed Ali Maraicair and from the income got out of the business by Mohammed Ali Maraicair during his lifetime. In view of the said position item one in plaint ‘D’ Schedule property has to be treated as property liable for partition as claimed by the plaintiff and 9th defendant. 18. The fact remains that all the sons except 2nd defendant who had given a release deed, as seen in Ex.A-7, dated 20.4.1977 in favour of late Mohammed Ali Maraicair and daughters, except those who are already married, were living with the 1st defendant, mother during the life time of late Mohammed Ali Maraicair and after his death upto the filing of the suit for partition in one and the same house. Eventhough it was pleaded in the pleadings in the written statement of contesting defendants that the business carried under the name and style of Pondy Steel Agencies at 184, Annal Salai, Pondicherry, which was described as item No.12 in plaint ‘A’ Schedule properties, was carried by the third defendant from 1984 i.e., even during the life time of late Mohammed Ali Maraicair and he was not having any interest in the said Business. The averments in the written statement proceeds as if the investment in entirety was made only by the third defendant and not by late Mohammed Ali Maraicair. While he was examined as D.W.2 before the trial Court, he would admit that his father had given him Rs.50,000 as capital to start business with the husband of the 7th defendant. The said business run by 3rd defendant and husband of 7th defendant was said to have been closed in the year 1987. There is nothing to show that he was having any other independent income to start a new business or atleast he had not produced any evidence to show that he has raised finance from other sources to start the abovesaid business in addition to the amounts of Rs.50,000 invested by his father. There is nothing to show that he was having any other independent income to start a new business or atleast he had not produced any evidence to show that he has raised finance from other sources to start the abovesaid business in addition to the amounts of Rs.50,000 invested by his father. The said facts would go to show that the business carried on by the third defendant either individually or in partnership with husband of 7th defendant should have been started with the funds of late Mohammed Ali Maraicair and therefore, the said business which was existence at the time of filing of the suit should also be taken into consideration for allotting a share to the plaintiff and the 9th defendant. The production of the account book maintained in the shop as seen in Ex.B-17 or the assessment orders as seen in Exs.B-18, B-20, B-21, B-22 and the order passed by the Appellate Assistant Commissioner (CT), Pondicherry, as seen in Ex.B-20 will not in any way help him to establish that the business was started by the third defendant with his own funds and it is not from the funds from the family of late Mohammed Ali Maraicair. In view of the foregoing reasons we hold that the plaintiff and the 9th defendant are entitled to share in the business described as item Nos.12 and 13 in plaint ‘A’ Schedule and item No.1 in plaint ‘D’ Schedule properties. 19. The contesting defendants have stated in the pleadings in the written statement that the properties described as item Nos.1 to 4 mentioned in the written statement belongs to late Mohammed Ali Maraicair and P.W.1 is only a name lender and therefore, the said properties are also liable to be partitioned among the heirs of late Mohammed Ali Maraicair. The said fact was denied by the plaintiff and her husband. The stand of the contesting defendants was not supported by 9th defendant who is sailing with the plaintiff in the suit. There is absolutely no acceptable evidence except the averments in the pleadings in the written statement of contesting defendants that the items described as items 1 to 4 in the written statement belonged to late Mohammed Ali Maraicair and P.W.1 is only a name lender for the said property. There is absolutely no acceptable evidence except the averments in the pleadings in the written statement of contesting defendants that the items described as items 1 to 4 in the written statement belonged to late Mohammed Ali Maraicair and P.W.1 is only a name lender for the said property. In view of the said position the contention raised by the learned counsel for the contesting defendants that the abovesaid items are also liable for partition cannot be sustained. 20. The 9th defendant in her pleadings in the written statement claimed that the properties described as items 1 to 5 in the written statement are properties left by late Mohammed Ali Maraicair and therefore the said properties are liable for partition. The contesting defendants contends contra except admitting for division of Rs.1,15,000 shown in plaint ‘C’ Schedule for which the contesting defendants have no objection for ordering partition. The business carried on under the name and style of Bharath Metal Stores at 139, Thiagu Mudali Street, Pondicherry was held to be liable for partition for the reasons already given above. Partition was also ordered for a sum of Rs.1,15,000 deposited in banks already referred to above. There is no evidence acceptable to the Court on record to establish that items 2 to 4 and item 5-b are available for partition and they are the properties purchased with money of late Mohammed Ali Maraicair. Therefore, the claim made by the 9th defendant for partition of items 2 to 4 and 5-B mentioned in the written statement of 9th defendant cannot be sustained. 21. In view of the discussion made above me hold that the plaintiff and the 9th defendant, on payment of necessary Court Fee if not already paid, are entitled to preliminary decree for partition of 7/112 share each in the properties described in plaint ‘A’ Schedule, 1st item in plaint ‘C’ Schedule (if proved by material evidence at the time of passing final decree in items described as item Nos.2 to 8 in plaint ‘C’ Schedule) and first item in plaint ‘D’ Schedule, as there was no dispute with regard to the entitlement of share of 7/112 each to plaintiff and the 9th defendant between parties to the proceedings. The plaintiff and the 9th defendant are entitled to mesne profits and accounting and the same has to be decided in a separate proceeding under O.20, Rule 12, C.P.C. In view of the conclusion arrived at as mentioned above, the judgment and decree passed by the trial Court cannot be sustained as it is, but has to be modified in the line mentioned above and accordingly modified. 22. In fine the appeal filed by the plaintiff as appellant in A.S.No.228 of 1990, the appeal filed by 6th defendant as appellant in A.S.No.619 of 1990 and the appeal filed by the 9th defendant as appellant in A.S.No.759 of 1990 are partly allowed. The Cross-objection No.116 of 1995 filed by the third defendant in A.S.No.228 of 1990 is dismissed. In the peculiar circumstances prevailing in these matters, the parties are directed to bear their own costs. R.S. -----