Judgment :- M. Thanikachalam, J. This is a suit for partition and separate possession of plaintiffs' 2/3rd share in the suit properties. 2. The plaint averments, briefly, are as follows: (a) The first plaintiff, by name Lakshmanan Chettiar, is the son of late Mahalingam Chettiar through his second wife Thirumalai Ammal, whereas the second plaintiff is the grand son of the said Mahalingam Chettiar, through the first wife of his son Kothandaraman. Kondandaraman's second wife's son is the third plaintiff. (b) Mahalingam Chettiar's first wife is Angammal, whose son is Alagiri Chettiar. Alagiri Chettiar had only one daughter by name Krishnammal, who was married to one Parthasarathy. The defendants, except Defendant No. 15 (who was brought on record as the Legal Representative of the deceased first plaintiff), are the descendants of Alagiri Chettiar. (c) In the family of Mahalingam Chettiar, there was a partition on 13.9.1907 between himself and his younger brother Govindu Chettiar. Under the said partition, the properties described therein in 'A' schedule were allotted to, the share of Mahalingam Chettiar. Thus, the lands, which were in the possession of Mahalingam Chettiar, are the joint family properties. Neither Mahalingam Chettiar nor Alagiri Chettiar had any other separate business or avocation and in this view, all the subsequent acquisitions were made only out of joint family assets and they should come within the ambit of joint family properties. (d) On 30.4.1910, a partition was purported to have been effected between Mahalingam Chettiar and his son Alagiri Chettiar, under which a large number of properties, described in the 'B' schedule herein were allotted to Alagiri Chettiar. Admittedly, at the time of the said division, Mahalingam Chettiar had two minor sons through his second wife - Kothandaraman and Lakshmanan (first plaintiff). These two sons were ignored, while dividing the properties and no share was given in the joint family properties, though they are also entitled to their due shares, as the members of joint family. (e) Mahalingam Chettiar had no right to ignore his two Sons Kothandaraman and Lakshmanan and deny them their shares Which they are entitled to in the family properties. Therefore, the partition said to have been effected on 30.4.1910 is null and void, inoperative, not binding upon them, in view of the further fact, the father had failed to divide the properties equally amongst his sons. Therefore, the partition said to have been effected on 30.4.1910 is null and void, inoperative, not binding upon them, in view of the further fact, the father had failed to divide the properties equally amongst his sons. Further, under the document of the year 1910, the father had taken only a small share, giving lion's share to Alagiri Chettiar. The settlement deed dated 20.7.1931, is only a maintenance document, under which no properties were allotted either to the first plaintiff or his brother Kothandaraman and therefore, on the basis of the said settlement deed also, their share in the family properties cannot be denied. (f) After the alleged partition, Alagiri Chettiar, his only daughter Krishnammal and her husband Parthasarathy, their sons defendants 1 and 2 and their daughters defendants 4 to 6 continued to live as joint family, that too even after the death of Mahalingam Chettiar. Even the properties settled under the document of the year 1931 in favour of the first plaintiff and his brother Kothandaraman were also possessed and enjoyed by Alagiri Chettiar as the head of the family. All the children were educated and their, marriages were performed only from the income derived from the joint family properties, despite the documents have come into existence. After the death of Alagiri Chettiar in the year 1961, the entire management of the properties came under Krishnammal, who was a widow at the time of death of Alagiri Chettiar. Whenever share is demanded, Krishnammal was promising that she would effect amicable partition, but failed to do so and Krishnammal died on 18.8.1981. Even after that, all were living, together and the position that prevailed during Mahalingam Chettiar's lifetime and Krishnammal's lifetime continued thereafter also. (g) The plaintiffs, apart from living together were also contributing their labours and earnings only to the benefit of the family, pooling the entire income in the Hindu undivided family. The plaintiffs were attending the agricultural operations only on behalf of the entire family and there was no actual severance of joint family status in the family. (h) The properties that fell to the share of Alagiri Chettiar nominally under the partition deed dated 30.4.1910 are detailed in schedule W of the plaint. 'C' schedule, properties are referred as 'Trust Properties’. 'D' schedule properties are movable items, which the family possessed. (h) The properties that fell to the share of Alagiri Chettiar nominally under the partition deed dated 30.4.1910 are detailed in schedule W of the plaint. 'C' schedule, properties are referred as 'Trust Properties’. 'D' schedule properties are movable items, which the family possessed. ‘E’ schedule properties are standing in the name of Ethirajan and Hari Narayanan (defendants 1 and 2), which were acquired by the joint family funds. 'F' schedule properties are standing in the name of the first-defendant, which also, belongs to the joint family. 'G' to 'N' properties are standing in the names of the descendants of Krishnammal, but they were acquired in their names, for the benefit of the joint family. (i) The properties described in Schedules 'O' and 'P' were given to the second and first plaintiff respectively and they are also liable to be divided, since the partition is a nominal one and not given effect to. Despite repeated requests, since the defendants have failed to effect actual division by metes and bounds, the plaintiffs are constrained to file the suit. 3. The first defendant's case, in brief­: (a) The suit filed by the plaintiffs is an abuse of process of Court, since there was no cause of action at all, for maintaining the suit for partition, questioning the divisions, which had taken place elsewhere in the year 1910. There is no joint family, much less any joint family properties, to be divided between the plaintiffs and the defendants. The suit is not properly valued and if at all, since the plaintiffs are out of possession, the suit should have been valued under Sec., 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, not on the basis of the joint possession, under Sec. 37(2). (b) Alagiri Chettiar and his father Mahalin­gam Chettiar became divided as far as back on 30.4.1910. The properties allotted to Mahalingam Chettiar have been dealt with by him separately, even during his lifetime, recognizing and acknowledging the division. Mahalin­gam Chettiar had made sufficient provision for his second wife and the sons born to him through her, under the settlement deed dated 20.7.1934. Alagiri Chettiar was living sepa­rately at old Number 2/22, New Nos. 4 and 5, Telugu Chetty Street and Mahalingam Chet­tiar was living in Old No.20, New No.43, Telugu Chetty Street, Old Washermanpet, Madras 21. Mahalin­gam Chettiar had made sufficient provision for his second wife and the sons born to him through her, under the settlement deed dated 20.7.1934. Alagiri Chettiar was living sepa­rately at old Number 2/22, New Nos. 4 and 5, Telugu Chetty Street and Mahalingam Chet­tiar was living in Old No.20, New No.43, Telugu Chetty Street, Old Washermanpet, Madras 21. Thus, they divided in status and were having separate mess from 1910 on­ wards. Thereafter, there was no re-union or no joint family, as known to law, even on facts. (c) Alagiri Chettiar having acquired some more properties, enjoying the same as his separate properties, died in 1961, leaving his only daughter Krishnammal, who is entitled to succeed the entire estate of Alagiri Chettiar, under the Hindu Succession Act. The defendants 1 and 2 are the sons and defendants 4 to 7 are the daughters of Krishnammal. (d) In fact Mahalingam Chettiar dealt with the properties allotted to him in the partition of 1910, separately, even by executing a sale deed on 12.3.1913 in favour of Thirumalai Ammal and M. Kothandaraman, who have executed a registered mortgage in favour of one Chidambaram Chettiar on 6.4.1925. Sub­sequently, Thirumalai Ammal and Kothan­daraman sold the property to the said Chidambaram Chettiar under the sale deed dated 29.8.1928, which would indicate, unquestionably, that the partition of the year 19 10 was acted upon, effectively. (e) On 19.12.1928, Mahalingam Chettiar and his second wife Thirumalai Ammal along with their sons Kothandaraman and Lakshmanan (first plaintiff) have mortgaged the properties allotted to their share to one Chinnadurai Chettiar and later, on 9.2.1930, sold the same to Alagiri Chettiar under the Document No.315 of 1930. Mahalingam Chettiar and Thirumalai Ammal also executed a deed of mortgage in 1931 in favour of one Amirchand Bhandari. The above said documents and the separate living of the parties, their enjoyment of the properties separately, are all indications that the partition of the year 1910 is not nominal and it is a real partition and acted upon by the parties to the document also and thereafter, at no point of time, there was any common kitchen or common mess, as incorrectly pleaded. At no point of time, the plaintiffs have contributed any amount or income for the benefit of the joint family or for the benefit of the defendants and there could not be such contribution also, because there was no joint family. At no point of time, the plaintiffs have contributed any amount or income for the benefit of the joint family or for the benefit of the defendants and there could not be such contribution also, because there was no joint family. (f) The properties standing in the name of the defendants and Alagiri Chettiar absolutely belong to them, in which the plaintiffs have no right of any kind. There are no movable items to the family as such, and the movables described in the plaint are imaginary. Pursuant to the settlement deed executed by Krishnammal, her heirs are enjoying the properties, which cannot be clubbed together with 'O' and 'P' schedule properties, which were allotted to the plaintiffs, in which, the defendants have no right. In any event, the suit is barred by limitation. Hence it is prayed that the suit may be dismissed with compensatory costs. 4. Defendants 2 and 8 to 10, denying the entire averments in the plaint, adopting the statement filed by the first defendant, pray for the dismissal of the suit. 5. Defendants 3 to 7 and 12 to 14, in their separate written statement would contend that the plaintiffs are not entitled to any relief, in addition, adopting the written statement of the first defendant, these defendants further contended that the properties standing in their names exclusively belong to them, in which the plaintiffs are not entitled to any share. 6. The defendant No.11 in her separate written statement would contend that the properties standing in her name exclusively belong to her, in which the plaintiffs are not entitled to any share. 7. On the basis of the above pleadings, the following issues were settled for trial, as per the order of this Court dated 30.8.1990. 1. Whether the documents of partition dated 30.4.1910 and maintenance deed dated 20.7.1931 are sham and nominal as alleged by the plaintiffs? 2. Whether the alleged partition between Mahalingam Chettiar and one of his sons viz. M. Alagiri Chettiar, is not binding on the plaintiffs? 3. Whether the properties described in the schedules to the plaint are joint family properties, available for partition? 4. Whether the plaintiffs claim is barred by limitation? 5. Whether the present suit is not maintainable for the reasons mentioned in the written statement? 6. Whether the suit has been properly valued for purposes of Court-fee and whether the Court-fee paid is correct? 7. 4. Whether the plaintiffs claim is barred by limitation? 5. Whether the present suit is not maintainable for the reasons mentioned in the written statement? 6. Whether the suit has been properly valued for purposes of Court-fee and whether the Court-fee paid is correct? 7. Whether the plaintiffs are entitled to mesne profits? 8. Whether the defendants are entitled to compensatory costs? 9. To what relief are the parties entitled? Issues Nos. 1, 2 and 5: 8. In the plaint, there are 16 schedules, including immovable and movable properties. As seen from the plaint, (i) 'A' schedule properties are standing in the name of Mahalingam Chettiar, the father of Alagiri Chettiar and grand father of the first plaintiff, (ii) 'B' schedule properties are standing in the name of Alagiri Chettiar; (iii) 'C' schedule properties are described as Trust Properties of Sri Ramaswamy temple, Thiruninravur. (iv) 'D' schedule properties are movable properties; (v) ‘E’ schedule properties are standing in the name of Ethirajulu and Harinarayanan (defendants 1 and 2); (vi) 'F' schedule properties are standing in the name of Ethirajulu (Defendant No. 1); (vii) ‘G’ schedule properties are standing in the name of Thenmozhi and Vanitha (Defendants 11 and 12), daughters of the second defendant; (viii) 'H' schedule properties are standing in the name of Nagarathnammal, the fourth defendant, daughter of Alagiri Chettiar; (ix) 'I' schedule properties are standing in the name of Sakunthala (Defendant No. 5); (x) 'J' schedule properties are standing in the name of Thirupurasundari (Defendant No. 6); (xi) ‘K’ schedule properties are standing in the name of Padmavathi (Defendant No. 7); (xii) ‘L’ schedule properties are standing in the name of Udayakumar and Trilokchandar (Defendants 13 and 14); (xiii) ‘M’ schedule properties are standing in the name of Angayarkanni (Defendant No. 3); (xiv) 'N' schedule properties are standing in the name of Harinarayanan (Defendant No. 2) and his children (Defendants No. 8 to 12); (xv) 'O' schedule properties are standing in the name of second plaintiff and (xvi) 'P' schedule properties are standing in the name of first plaintiff Lakshmana Chettiar, who died pending suit, leaving his Legal Representatives, who are impleaded as plaintiffs 4 to, 6 and Defendant No. 15. 9. 9. The plaintiffs, claiming that all the above said properties belong to the joint family, consisting of themselves and the defendants in which they are entitled to 2/3rd share, as a whole, have filed the suit for declaration of the said share, by passing a preliminary decree, then, followed by a final decree, to carve out the properties according to the shares. All the contesting defendants, in their separate writ ten statements or while adopting the statement of others, 'would contend, unanimously, that there is no joint family, as well as the family is also not owning any joint family properties and this being the position, the plaintiffs are not entitled to any share. It is their specific case, though the parties are related to each other, as indicated in the genealogy, the ancestors have divided the properties as early as in 1910 itself and thereafter, after the severance had taken place in the family, there is no reunion and the parties to the partition and their successors were enjoying the properties in their individual capacity separately, acquiring further properties, transferring some of the properties etc., to the knowledge of plaintiffs and this being the position, the plaintiffs are not entitled to any share and their claim is also barred by limitation. 10. The plaintiffs admitting that there was a division in the family on 13. 9.1907, thereafter on 30.4.1910, would contend that the second partition dated 30.4.1910 is a nominal one and it was never intended to be acted upon or acted upon. It is their further case, even thereafter they lived together for several years as joint family members. It is not, the case, though there was severance of status at some point of time, re-union took place, then constituting joint family, then the members of the joint family acquiring properties or dealing the properties for the welfare and benefit of the joint family. In view of the admitted position, that there was division in the family on 30.4.1910, even before the birth of the plaintiffs, it is for them to prove, that the said partition is only a nominal one, never intended to be acted upon and in fact also not acted upon. In view of the admitted position, that there was division in the family on 30.4.1910, even before the birth of the plaintiffs, it is for them to prove, that the said partition is only a nominal one, never intended to be acted upon and in fact also not acted upon. Thus proving the existence of the joint family, the acquisition of the properties by the family also has to be established for the benefit of the joint family by the members of the joint family by the plaintiffs, to have the relief of division. Then only, if the suit is not barred by limitation, there may be a possibility for the plaintiffs to succeed. 11. The learned counsel for the plaintiffs would submit that at the time of the alleged partition on 30.4.1910 itself, two minor members of the joint family were available, they being coparceners, but not given any share and in this view, the partition deed dated 30.4.1910 is void, invalid, not operative. It is the further submission of the learned counsel for the plaintiffs, that despite the partition deed, all the family members were living together, all these years, having common kitchen and common mess, managing the properties jointly, collecting the income jointly, pooling the income in the common hotchpot, thereby acquiring and disposing the properties also and in this way, it should be presumed or it should be held that there existed a joint family consisting of plaintiffs and the defendants, which should follow, the properties in whomsoever names they were acquired, should be the subject matter of the division, since except the disputed division, there is no other division in the family. 12. 12. Responding to the above submissions, the learned counsel for the defendants, would submit that the suit is not at all maintainable on the following grounds viz.: (i) that the division took place between the parties already as early as on 30.4.1910, which is acted upon; (ii) that pursuant to the division, Mahalingaim Chettiar himself had settled the properties in favour of plaintiffs 1 and 2; (iii) that there was no joint family from the year 1910 onwards; (iv) that the properties allotted under the partition deed dated 30.4.1910, were dealt with by the parties separately accepting the divisions and acknowledging the actual division; (v) the parties are enjoying the properties separately, changing the pattas in their respective names, paying taxes separately; (vi) that all the members are not living under the common roof, having common mess, whereas they are living separately, deriving income also separately, appropriating the same; (vii) that all the parties, including the plaintiffs, have acquired and disposed of properties individually, not recognizing, at any point of time, the alleged joint family and (viii) that in any event, the suit is barred by limitation. 13. In order to solve the dispute between the parties, we have to remember the admitted relationship between the parties, as per the genealogy given hereunder: (Next Page). 14. Mahalingam Chettiar and Govindu Chettiar are the sons of Thirumalai Chettiar. They have not owned any ancestral or joint family property, as indicated in Ex.P.1 partition, which is not in dispute. By their hard work, the brothers have acquired the properties in their names and they are described in ‘A’ and 'B' schedules of Ex.P.1. 'A' schedule properties, described in Ex.P.1, were allotted to Mahalingam Chettiar, whereas 'B' schedule properties were allotted to Govindu Chettiar, which we are not very much concerned in this case. In Ex.P.1, the brothers have specifically stated: The above recitals arc proof sufficient to hold, at this distance of time, that too when there was no challenge, by providing contra materials, that Mahalingam Chettiar has not inherited any property from his father Thirumalai Chettiar. The brothers, though acquired properties in their names separately, thought it fit, in 1907, that there should be a partition, carving out their rights in the properties as well as declaring so in their presence under a registered document. In this view alone, Ex.P.1 document, styled as partition agreement, came into existence. The brothers, though acquired properties in their names separately, thought it fit, in 1907, that there should be a partition, carving out their rights in the properties as well as declaring so in their presence under a registered document. In this view alone, Ex.P.1 document, styled as partition agreement, came into existence. Therefore, the properties described in Schedule 'A' of Ex.P.1 are the properties acquired by Mahalingam Chettiar in his own right and it has no smell or the character of ancestral property or joint family nature, in which, as a matter of right, his son(s) cannot claim any right, by birth. Thus, settling this position, based upon Ex.P.1, we have to take the next step. 15. Mahalingam Chettiar married Angammal as his first wife and Alagiri Chettiar is the son born to them, who died on 13.2.1962. After the death of Angammal, admittedly, Mahalingam Chettiar married Thirumalai Ammal, the mother of Lakshmanan Chettiar, the first plaintiff and the paternal grand mother of the plaintiffs 2 and 3. Though at present, there is no dispute regarding her status as the wife of Mahalingam Chettiar, it appears, Thirumalai Ammal was married to somebody, thereafter there was customary divorce, then she joined Mahalingam Chettiar, as disclosed in the ancient document-Ex.D.1, dated 20.9.1907. In view of the admitted, position, that the parties are not disputing the status of Thirumalai Ammal, it is unnecessary for me to go into detail, about the prior marriage of Thirumalai Ammal. In 1907 itself, Mahalingam Chettiar had one son, through Thirumalai Ammal, aged about 2½ years. Considering the position of Thirumalai Ammal and her future, including the future of the son born to Thirumalai Ammal, Mahalingam Chettiar and Alagiri Chettiar have settled some properties in their favour under Ex.D1 on 20.9.1907. In the document itself, the status of Angammal, the first wife of Mahalingam Chettiar, is mentioned as if she brought some 'Sreedhana property' and with the help of that property, Mahalingam Chettiar acquired some other properties and because of that reason alone, Mahalingam Chettiar and Alagiri Chettiar joined together and executed a settlement deed in favour of 'Thirumalai Ammal and her minor son Kothandaraman, thereby showing that Kothandaraman was not considered as the member of the joint family and thus Kothandaraman was also not entitled to any share in the properties of Mahalingam Chettiar. Since Mahalingarm Chettiar had acquired properties independently and got it recorded under Ex.P.1, I am of the opinion, by birth, neither Kothandaraman nor his brother Lakshmanan Chettiar (first plaintiff) could claim any share in the properties acquired by Mahalingam Chettiar or in the properties acquired by Mahalingam Chettiar along with Alagiri Chettiar utilising the 'Sreedhana property' of Angammal. This settlement deed was accepted by Thirumalai Ammal, thereby indicating, in 1907 itself, there was no joint family, owning joint family properties. 16. As evidenced by Ex.P.2, on 30.4.1910, there was a partition between Mahalingam Chettiar and his son Alagiri Chettiar. At that time, Mahalingam Chettiar had two sons through his second wife Thirumalai Ammal, viz. Kothandaraman and Lakshmanan and this fact is also recorded in Ex.P.2. But when the father and the son, viz. Mahalingam Chettiar and Alagiri Chettiar, had divided the properties, which Mahalingam Chettiar got under Ex.P.1 and acquired other properties thereafter, they have not included either Kothandaraman or Lakshmanan in the partition deed and they have not also allotted any property to them. The submission of the learned counsel for the Plaintiffs, that when Kothandaraman and Lakshmanan were available as members of coparcenary, their non-inclusion in Ex.P.2 and the non-allotment of any share to them, certainly, would invalidate the partition and in this view, it could he named as invalid, is not acceptable to me, considering Ex.D1, which I have already discussed, as well as the recitals available in Ex.P.2. 17. In Ex.P.2, we find a reference regarding Ex.D.1 also. In Ex.P.2, the reasons are given, as to why Kothandaraman and Lakshmanan were not given any share, while Alagiri Chettiar and Mahalingam Chettiar have divided the properties and the reason is the existence of Ex.D.1. The fact that there is some mention in Ex.P.2 "Pithurarjitha Sothu" may not have any consequence, in view of the proved fact Mahalingam Chettiar had not inherited any ancestral property and he alone had acquired the property, which is recorded in the partition between Mahalingam Chettiar and his brother Govindu Chettiar, as indicated above. Hence, taking into account the words "Pithurajitha Sothu" available in Ex. P.2, I am unable to say that the other sons of Mahalingam Chettiar through his second wife viz. Hence, taking into account the words "Pithurajitha Sothu" available in Ex. P.2, I am unable to say that the other sons of Mahalingam Chettiar through his second wife viz. Kothandaraman and Lakshmanan (the first plaintiff) are also entitled to a share in the said properties, being the members of the joint family or coparceners, in view of the proved fact that Mahalingam Chettiar had acquired properties on his own and in view of the averments available in Ex.D.1 that subsequent properties were acquired with the help of 'Sreedhana property' of Angammal. Therefore, the sons of Mahalingam Chettiar, through his second wife Thirumalai Ammal, cannot claim any birth right over the properties purchased by Mahalingam Chettiar in his individual capacity or the properties purchased by Mahalingam Chettiar and Alagiri Chettiar jointly also. Law is well settled that the father is competent to make division of the properties and while making division, regarding his self-acquired property, there may be unequal division also, or even there may be omission also, which cannot be challenged at this distance point of time. In this view, the partition under Ex.P.2 cannot be described as a nominal partition. 18. As rightly submitted by Mr. N.S. Varadachari, the learned counsel for the defendants, if the partition under Ex.P.2 is a nominal one, not intended to be acted upon or in other words despite Ex P. 2, the family continued to live jointly, the members were living jointly together, then, the subsequent transactions should reflect the same. On the other hand, the subsequent transactions, between the parties prove the contra viz., that Ex.P.2 was intended, to be acted upon as partition deed and in fact acted upon so also. Mahalingam Chettiar, recognizing the Ex.P.2-partition deed, dealt with the properties and thereafter, Alagiri Chettiar also recognised the same, which could be seen from the registered documents, which came to surface between the parties, when there was no dispute at all between the parties, which I will discuss infra. 19. After Ex.P.2-partition, as per the addresses given in the further documents, Mahalingam Chettiar and Alagiri Chettiar have been living separately, is evident. 19. After Ex.P.2-partition, as per the addresses given in the further documents, Mahalingam Chettiar and Alagiri Chettiar have been living separately, is evident. Alagiri Chettiar was living in D.No.2/22, Telugu Chetty Street, while Mahalingam Chettiar was living in D.No.20 in the same street, which is proved by Exs.D.3 to D.5 and D.20, in addition to Exs.D.6 and D.7, notices relating to funeral ceremony of Thirumalai Ammal, the second wife of Mahalingam Chettiar as well as the funeral ceremony to Mahalingam Chettiar, published by Alagiri Chettiar, where the residence, of Alagiri Chettiar is shown as 2/22, Telugu Chetty Street, which is a different property. 20. Ex.P.3 is the settlement deed executed by Mahalingam Chettiar in favour of his two sons Kothandaraman and Lakshmanan Chettiar (born through the second wife) on 20.7.1931, wherein he has given his address as D.No.20, different from the residence of Alagiri Chettiar. In this document, when there was no dispute between the parties, Mahalingam Chettiar traced the title and interest in the property settled, not only from the year 1902, as well as tinder the document dated 30.4.1910 i.e. Ex.P.2, partition deed, which is sought to be labelled as nominal. Without any ambiguity and without giving any chance to doubt about the genuineness of the document dated 30.4.1910, Mahalingam Chettiar has declared that as per the partition deed dated 30.4.1910, he has given a share in his properties to Alagiri Chettiar, the son born to him through his first wife and therefore, in the properties described in schedule 'A’ and ‘B’ in Ex.P.3, Alagiri Chettiar had no interest. He has also further reiterated in Ex.P.2 about Ex.P.1 dated 13. 9.1907 and the subsequent transaction also, thereby asserting, in the proper ties covered under Ex.P.3, none has any right and in this view, he is competent to execute the settlement deed. 21. If, as contended by the learned counsel for the plaintiffs, by marching many old men as P.Ws.2 to 10, to say as if there was joint family, the joint family was there, then, Mahalingam Chettiar would not have any right to settle the properties belonging to the joint family, exclusively in favour of Kothandaraman and Lakshmanan. Absolute rights are given to Lakshmanan and Kothandaraman in the properties settled under Ex.P.3. Absolute rights are given to Lakshmanan and Kothandaraman in the properties settled under Ex.P.3. The assertion of Mahalingam Chettiar and the acceptance of the settlement by the settlees are proof sufficient, at this distance point of time, to declare that the partition dated 30.4.1910 would have been acted upon in its true sense and there cannot be any doubt about its validity, genuineness or otherwise. 22. On behalf of the defendants, in order to make out a case, that the partition deed dated 30.4.1910 was acted upon, aid is sought from Ex.D.2, not disputed. Under the original of Ex.D.2, Mahalingam Chettiar, sold some properties to his second wife Thirumalai Ammal and her son Kothandaraman, father of plaintiffs 2 and 3, on 12.3.1913. Mahalingam Chettiar, while tracing the title to the property sold, has specifically stated that the property was allotted to him in the partition, which took place on 30.4.1910 between himself and Alagiri Chettiar, referring Ex.P.2. Thus, it is made out, one of the parties to Ex.P.2 had acted, pursuant to the said document, sold the property deriving interest and therefore, it is further on the part of the plaintiffs now to contend that Ex.P.2 partition deed was not given effect to or it was never intended to be given effect and thereafter, the family continues to be joint. 23. Thirumalai Ammal and Kothandaraman Chettiar had mortgaged the property purchased by them under Ex.D.2, in favour of one Chidambaram Chettiar on 6.4.1925, as evidenced by Ex.D.3, wherein reference is also made about the Ex.D.2 sale deed dated 12.3.1913, which in turn refers the partition deed dated 30.4.1910. 24. It appears, elsewhere in the year 1928 or prior to that, there was some misunderstanding between Kothandaraman, his mother Thirumalai Ammal as well as Lakshmanan (the first plaintiff). Therefore, on 6.10.1928, Kothandaraman had executed a release deed in favour of his mother Thirumalai Ammal wherein also, a reference has been made about the partition between Alagiri Chettiar and Mahalingam Chettiar, dated 30.4.1910 as well as the differences between himself and the mother. 25. On 19.12.1928, Mahalingam Chettiar, his second wife Thirumalai Ammal, their sons Kothandaraman and Lakshmanan Chettiar have mortgaged the property in favour of one Chinnadurai. Chettiar, thereby showing that they have dealt with the properties allotted to them or acquired by them independently without any reference to Alagiri Chettiar and his descendants. 26. 25. On 19.12.1928, Mahalingam Chettiar, his second wife Thirumalai Ammal, their sons Kothandaraman and Lakshmanan Chettiar have mortgaged the property in favour of one Chinnadurai. Chettiar, thereby showing that they have dealt with the properties allotted to them or acquired by them independently without any reference to Alagiri Chettiar and his descendants. 26. In the year 1930 i.e. on 9.2.1930, Mahalingam Chettiar, Thirumalai Ammal, their sons Viz. Kothandaraman and Lakshmanan Chettiar (the first plaintiff) have sold a property to Alagiri Chettiar i.e. the son of Mahalingam Chettiar through his first wife, as seen from Ex.D.19. While tracing the title, we find a reference about the partition dated 30.4.1910, even mentioning that the partition had taken place when Kothandaraman and Lakshmanan Chettiar were minors and this was admitted by P.W.1, the son of Kothandaraman, who is a signatory to Ex.D.19 along with his brother Lakshmanan, the first plaintiff. Ex.D.19 being the original document, more than 30 years old, should have a presumption also that what is stated there is true, unless contra is proved. No explanation has been given by P.W.1, under what circumstances, his father and Lakshmanan had subscribed their signatures in Ex.D.19 document. Thus, it could be said safely, even P.W.1 is predecessors themselves had recognised and acknowledge the partition, which took place between Mahalingam Chettiar and Alagiri Chettiar on 30.4.1910 and in this view, P.W.1 is also estopped from contending contra on facts, since he claims right through them. 27. Under the original of Ex.D.20, Mahalingam Chettiar and Thirumalai Ammal have mortgaged a property in favour of one Amirchand Bandari on 2.10.1931, wherein also, we find a reference, while tracing the title of the property, about the partition dated 30.4.1910. It seems, the mortgagors; have not discharged the same, resulting the said Amirchand Bhandari filing a suit before the City Civil Court, Madras in O.S.No.542 of 1943 impleading Lakshmanan Chettiar (the first plaintiff.), his son Annamalai Chettiar (the 15th defendant), Alagiri Chettiar and Velu Chetty, as evidenced by Ex.D.21, for which Alagiri Chettiar had filed a statement, as seen from Ex.D.23, wherein he has stated that he is not aware of either the mortgage or the details of the subsequent dealing between the plaintiff and the defendants and he is an unnecessary party, because of the fact that there was a partition between himself and Mahalingam Chettiar on 30.4.1910. Because of the stand taken by Alagiri Chettiar in the year 1943, deleting Alagiri, Chettiar, a decree was granted. Thus, it is shown, beyond any doubt, that Ex.P.2 partition deed dated 30.4.1910 was acted upon, was not only known to the first plaintiff,, but he himself had acted pursuant to that partition and therefore, as rightly contended by the learned counsel for the defendants, the suit is a most vexatious suit and it could be described as an abuse of process of the Court, also, which I will deal with further at a later point of time. 28. The death knell of the plaintiffs' case must be Ex.D.8. Plaintiffs 1 and 2 and the son of the first plaintiff by name Annamalai Chettiar (the 15th defendant) have divided the family house on 14.5.1960 under the original of Ex.D.8. In this document, the above said three persons have traced out the title, how their predecessor-in-title viz. Mahalingam Chettiar had acquired the property and how he had settled the property under the document dated 20.7.1931 (Ex.P.3). Thus, it is evident, Ex.P.3 was known to the plaintiffs and they have recognised and accepted that document also. In Ex.P.3, as I have already adverted to above, Ex.P.2 partition is mentioned, under which alone Mahalingam Chettiar had acquired title to the said property. Thus, the plaintiffs themselves have categorically admitted, in an unequivocal terms, about the previous partition, under which Mahalingam Chettiar had acquired title and settled the same under Ex.P.3. It is not the case of the plaintiffs that this document is a sham and nominal one, not acted upon etc. This being the position, I should say, without any hesitation, that the, plaintiffs have unnecessarily filed the suit more or less as gambling, under the hope, if a suit is filed, there may be some settlement, giving property or some cash and this kind of vexatious litigation should be prevented by awarding appropriate costs, which I will deal with at the end of this judgment. 29. 29. As seen from Ex.D.9 (about its proper custody, I will deal with separately), on behalf of Lakshmanan Chettiar (the first plaintiff), his advocate by name T. Ananda Rao, had issued a notice on 17.1.1938 to Mahalingam Chettiar, Alagiri Chettiar and Kothandaraman Chettiar, demanding partition, which elicited a reply from Mahalingam Chettiar and Kothandaraman (father and brother of the first plaintiff), as seen from Ex.D.10, wherein We find the original signatures of not only the counsel but also the parties. To the said notice Ex.D.9, Alagiri Chettiar had also issued a reply under Ex.D.11, which is also acknowledged by the counsel. In the reply notice Ex.D.10, Mahalingam Chettiar and Kothandaraman have categorically stated that as long as 30 years back, Mahalingam Chettiar and Alagiri Chettiar have separated from the family and they are enjoying the properties separately. In the same manner, Alagiri Chettiar issued a reply, as seen from Ex.D.11, that in the year 1910 itself, family properties were divided and therefore, the son of Mahalingam Chettiar viz. Lakshmanan does not have any right in the properties owned and possessed by him. Thereafter, for the past more than 50 years, the first plaintiff has not taken any step to carve out his alleged share in the alleged joint family properties whereas, as indicated above, he partitioned the family house fell to the share of Mahalingam Chettiar, with his son-the 15th defendant and the second plaintiff, as seen from Ex.D.8. 30. The learned counsel for the plaintiffs would challenge the admissibility of the above said notices, as if they have not produced from the proper custody and the genuineness also not proved. It is the further case of the counsel for the plaintiffs that the presumption available under Sec. 90 of the evidence Act is not available, since there is no proof that the principal had instructed the agent to issue such a notice. As rightly submitted by the learned counsel for the defendants, as per the explanation available to Sec. 90 of the Evidence Act, the documents are admissible, the further fact being they does contain the signatures of Mahalingam Chettiar, Kothandaraman Chettiar, not challenged. As rightly submitted by the learned counsel for the defendants, as per the explanation available to Sec. 90 of the Evidence Act, the documents are admissible, the further fact being they does contain the signatures of Mahalingam Chettiar, Kothandaraman Chettiar, not challenged. Therefore, it should be held that the first plaintiff alone bad issued the notice-Ex.D.9 which elicited replies from the parties where the partition was informed and thereafter, the first plaintiff has not initiated any step, to claim share and that itself would indicate, by his own conduct, lie abandoned the claim, if any, which he has raised Without any basis, as an afterthought. 31. The first defendant, as D.W.1, has given evidence about the non-availability of ancestral property, the division which had taken place between Mahalingam Chettiar and Alagiri Chettiar, the erstwhile members of the family living separately in D.No.20, Telugu Chetty Street and D.No.2/22 Telugu Chetty Street and the independent dealing of the property by Krishnammal and Mahalingam Chettiar as well as Malialingam Chettiar's second wife, including the notice, issued by Lakshmanan Chettiar (the first plaintiff) demanding partition. The above said evidence, given by D.W.1, is in tune with the registered documents and therefore, it has to be accepted. By examining a number of witnesses, the non-existence of a fact cannot be proved and by examining a single witness the existence of a fact could be proved, as did by the defendants in this case. Therefore, accepting the oral evidence of D.W.1, I should conclude, that there as no joint family and there was no joint family properties also available for division, whether it is movable or immovable. 32. The submission of the learned counsel for the Plaintiffs is that to prove the joint family, despite all these documents, and to prove the enjoyment of the property in common and to prove collection of rent and cultivation of the property jointly, there is unimpeachable evidence through the mouths of P.Ws.2 to 10 and their evidence is not at all shattered and, accepting the same, it should be concluded that there, is a joint family and. the properties described in the plaint are the properties belonging to the joint family. It is very easy to secure this kind of old men to give evidence, as if all the members were living together. the properties described in the plaint are the properties belonging to the joint family. It is very easy to secure this kind of old men to give evidence, as if all the members were living together. Accepting the same, if we have to act it should be supported by some other document or at least the evidence should not be against the documents available between the parties, which came to surface when there was no dispute at all. Here, the evidence adduced through P.Ws.1 to 10 is quite against the registered documents of ancient origin and therefore, the parrot like evidence given by P,Ws.1 to 10 as if all the members were living together, acquired properties, collected income, ate together, sat to­gether, cannot at all be accepted. If we accept this kind of evidence, the documents referred, above, between the parties, most of which are not at all disputed, would lose their impor­tance and credibility and this should not be the fate of the documents also. 33. P.Ws. 1 to 10 have deposed during their chief examination, more or less, unani­mously, to some extent, as if Alagiri Chettiar, Mahalingam Chettiar, Krishnammal and plaintiffs were living together in the same house, had the common mess etc. But, the evidence so given by them proved to be un­ worthy or shown to be unworthy, from the answers elicited from them, during the cross­ examination, in view of the fact that the evi­dence given by them, much against the admitted documents, to which the first plain­ tiff was a party. I am not convinced about the evidence given by P.Ws. and it failed to in­ spire my confidence also, to prove the joint family or acquisition of the property jointly etc. As indicated at the first instance in this judgment many properties are standing in the name of the family members of descendants. P.W.1 has not given evidence about the in­ come said to have derived from the alleged joint family properties, its surplus, if any, to acquire the subsequent properties and the motive for purchasing the property in the name of the defendants while eldest members are available in the joint family etc. 34. Generally, in a joint family, where there are male members, capable of managing the family and its properties, they alone would dominate. 34. Generally, in a joint family, where there are male members, capable of managing the family and its properties, they alone would dominate. Contrary to this fact, it is alleged in die plaint, that Krishnammal was managing the properties, who died in 1981. Admittedly, she was married to one Parthasarathy. If there had been a joint family, naturally, Krishnammal would have left the family i.e. to her husband's house, as custom prevailed, since no contra custom is pleaded. Therefore, there would riot have been any possibility, in the ordinary course, for Krishnammal to manage the properties on behalf of the joint family, if really their existed joint family. But, admittedly, Krishnammal had managed the properties, as pleaded, which would indicate, that she should have managed the properties only in her individual capacity as the heir of Alagiri Chettiar, not recognising others interest. This admitted fact also acts against the plaintiffs and their alleged joint family. 35. It is the settled position that when the documents are standing in the name of a particular person, that person should be recognised as the owner of the property and his possession also should be recognised, in pursuant to that document. To take contra view, the person who alleges so, should shoulder the burden and discharge the same, which is not done by plaintiffs. Since P.W.1 has not even spoken about the sale deeds or settlement deeds standing in the name of the defendants and incapacity of Krishnimmal, if any, to execute. the settlement deeds or not in a position to state the names of the persons in whose names the properties are standing, about their purchase, sale consideration it should be presumed that they had purchased the property on their own, without any reference to the alleged joint family or the joint family properties or the income, as the case may be. The ipse dixit of P.W.1 that he collected rents, without disclosing what was the income, whether pooled together, to utilize for acquiring the properties, it is highly impossible to hold that there is a joint family, conferring right upon it that these properties are the joint family properties of plaintiffs and defendants, making them divisible. 36. The ipse dixit of P.W.1 that he collected rents, without disclosing what was the income, whether pooled together, to utilize for acquiring the properties, it is highly impossible to hold that there is a joint family, conferring right upon it that these properties are the joint family properties of plaintiffs and defendants, making them divisible. 36. In the light of the above discussion, I am of the considered opinion that the plaintiffs have miserably failed to prove that there is a joint family after 1910 and the properties described in the schedule are all joint family properties, which should follow, the plaintiffs are not entitled to any share, much less 2/3rd share. In this view, the suit itself is not maintainable. Thus, Issue Nos. 1, 2 and 5 are answered against the plaintiffs. Issue Nos. 3 and 7: 37. In view of my findings in the previous issues, the suit properties are not available for partition and therefore, the plaintiffs are also not entitled to mesne profits. Hence, these two issues are answered accordingly. Issue No. 6­ 38. In a suit for partition, whether it will come under Sec. 37(1) or 37(2) of the Court Fee Act, the allegations in the plaint or averments in the plaint alone have to be taken into consideration. Since there are allegations, as if the plaintiffs are in joint possession (deemed), the payment of Court Fee should be considered as correct, though the joint possession pleaded is proved to be incorrect. Further, no submission was made on this issue by the learned counsel for the defendants. Hence, this issue is answered accordingly. Issue No. 4: 39. Article 110 of the Limitation Act, 1963 prescribes the period of limitation for filing a suit for partition, by a person excluded from a joint family, as 12 years and the time commences when the exclusion becomes known to the plaintiff. In this case, as adverted, above repeatedly, in the documents in which the first plaintiff was a party, there is reference about the partition dated 30.4.1910 on which basis, the plaintiffs should have had knowledge that they are excluded. Not only that, when the first plaintiff had issued a notice in the year 1938 under Ex.D.9, replies were given under Exs.D.10 and D.11 stating that already division took place and hence the plaintiffs are not entitled to any share. Not only that, when the first plaintiff had issued a notice in the year 1938 under Ex.D.9, replies were given under Exs.D.10 and D.11 stating that already division took place and hence the plaintiffs are not entitled to any share. P.W.1 also admits that after the death of Alagiri Chettiar in the year 1961, all the properties were in exclusive en­joyment of Krishnammal, thereby he had knowledge that-he was excluded from possession of the properties, at least from 1961. Therefore, within 12 years from 1938 or at least within 12 years from 1961, as contem­plated under Article 110 of the Limitation Act, the plaintiffs should have filed the suit. This suit was filed on 10.8.1989 i.e. after the lapse of many 12 such years. Therefore, it should be held, without any hesitation, that the suit is hopelessly barred by limitation and in this view also, the plaintiffs are not entitled for any share. Hence, this issue is answered in favour of the defendants and against the plaintiffs. Issue No. 8: 40. The contention of the defendants, especially the first defendant, that the suit should be dismissed with compensatory costs under Sec.35-A of the Code of Civil Procedure, is well acceptable to me, considering the vexatious nature of the suit, to the knowledge of the first plaintiff and P.W.1 that it is vexatious. P.W.1 was born on 2.2.1931. Even before his coming to the world, the documents came into existence viz. Exs.P.1, P.2 and D.1 to D.5. As indicated above, in all the documents, more or less, the partition dated 30.4.1910 was mentioned and the parties, recognising the said partition, have also acted upon the same and the plaintiffs must have had the knowledge about the enforcement of the partition also., Despite that fact, they had the audacity to say that 1910 partition is not acted upon and it is only a nominal partition. Saying so is not a Journal Reports problem, if said so, it should be proved, which is wanting in this case. Except the ipse dixit of P.W.1, there is nothing on record that at any point of time, the parties to the partition have ignored the Ex.P.2 document, whereas at all points of time, they have recognised that document. Saying so is not a Journal Reports problem, if said so, it should be proved, which is wanting in this case. Except the ipse dixit of P.W.1, there is nothing on record that at any point of time, the parties to the partition have ignored the Ex.P.2 document, whereas at all points of time, they have recognised that document. Knowing my well, it seems, the first plaintiff has issued a notice elsewhere in the year 1938 under Ex.D.9 and the allegations therein were rebutted by the replies Exs.D.10 and D.11. Thereafter, he slept for roughly 50 years or so and by this conduct, it should be presumed, the first plaintiff had accepted the replies also. But, unfortunately, at a belated stage, the first plaintiff along with others had filed the suit, knowing all these things and in this view, it should be presumed that he knew that the suit is vexatious in nature and he is abusing the process of the Court. In this view, since in my considered opinion, the suit has been filed vexatiously on false allegations, thereby unnecessarily dragging the defendants to the Court, for which they should be compensated by way of compensatory costs under Sec. 35-A of CPC and the amount is fixed at Rs.3,000/- (Rupees Three Thousand Only). This issue is answered accordingly. Issue No. 9: In the result the suit is dismissed with costs of each contesting defendant separately. In addition, the plaintiffs are directed to pay a sum of Rs.3,000/- ­(Rupees Three Thousand Only) as compensatory costs to the first defendant. Suit dismissed.