JUDGMENT 1. This Appeal is focused by the Defendant as against the judgment and decree dated 18.12.2008 made in O.S.No.20 of 2004, which was a Suit for partition, on the file of the Principal District Judge, Perambalur. The parties are referred to hereunder according to their litigative status and ranking before the Trial Court. 2. A summation and summarization of the relevant facts absolutely necessary and germane for the disposal of this Appeal would run thus: The Plaintiffs four in number filed in the Suit as against the Defendants seeking partition: “Tamil” 3. D1 filed the Written Statement for herself and on behalf of her minor child/D2 resisting the Suit, contending that they are entitled to the share of her deceased husband in the first item of the suit properties. ‘B’ scheduled property as per her, happened to be the exclusive property of her husband, namely Manoharan; whereupon issues were framed. 4. During trial, the First Plaintiff-Singaram examined himself as PW1 along with PW-2 Veerapandiyan and marked Exs.A1 to A15. The First Defendant-Lalitha examined herself as DW1. 5. Ultimately the Trial Court decreed the Suit ordering partition concerning both the properties, allotting 10/12 shares in favour of the Plaintiffs and 2/12 shares in favour of the Defendants. Being aggrieved by and dissatisfied with the judgment and decree of the Trial Court, the Defendants preferred this Appeal on various grounds. 6. The learned Counsel for the Appellants/Defendants placing reliance on the grounds of Appeal would pilate his arguments, inviting the attention of this Court to various portions of the records, which could pithily and precisely be set out thus: (a) The ‘B’ scheduled property which is a tractor, was purchased from out of the exclusive income of the deceased Manoharan – the husband of D1 and father of D2. However, the Trial Court without taking note of the said fact, simply rejected their exclusive claim over the ‘B’ scheduled property. (b) The Defendants on the death of Manoharan, virtually were left without any source of income and they were entitled to maintenance, but that was denied to them. The First Plaintiff, being the father-in-law in possession of the entire suit properties, did not choose to provide any maintenance to the Defendants. As such, the Trial Court should have taken note of it and awarded maintenance also payable by the First Plaintiff in favour of the Defendants. The First Plaintiff, being the father-in-law in possession of the entire suit properties, did not choose to provide any maintenance to the Defendants. As such, the Trial Court should have taken note of it and awarded maintenance also payable by the First Plaintiff in favour of the Defendants. Accordingly, the learned Counsel for the Appellants/Defendants would pray for partly setting aside the judgment and decree of the Trial Court in rejecting the aforesaid prayer of the Defendants, and for decreeing the Suit granting exclusive right over the ‘B’ scheduled property in favour of the Defendants and also for ordering maintenance payable by the First Plaintiff in favour of the Defendants. 7. In a bid to shoot down and mince meat, torpedo and pulverize the arguments as put forth and set forth on the side of the Appellants/Defendants, the learned Counsel for the Respondents/Plaintiffs would advance his arguments, the thumb nail sketch of the same would run thus: (a) Ex facie and prima facie, from the evidence of DW1 (D1), it is clear that on the Defendants’ side, no iota or shred, miniscule or molecular extent of evidence was produced to show that the deceased Manoharan had the financial wherewithal, to purchase the tractor for a sum of rupees nearly two lakhs. However, Exs.A3, A5 & A6 would unambiguously and unequivocally, pellucidly and palpably, display and demonstrate that it was the First Plaintiff, from out of the joint family funds and also by raising funds, purchased the said tractor in the name of his eldest son, the deceased Manoharan. As such, the contention as put forth on the side of the Defendants before the Trial Court has to be rejected in limine. (b) The Defendants cannot claim both maintenance and also pray for mesne profits out of the first item of the suit properties and it is quite obvious also. Accordingly, the learned Counsel for the Respondents/Plaintiffs would pray for the dismissal of the Appeal. 8. The points for consideration are as to: (1) Whether the ‘B’ scheduled property of the Suit, namely the tractor, was purchased by the deceased Manoharan from out of his income or whether it was purchased from out of the joint family funds in his name? 8. The points for consideration are as to: (1) Whether the ‘B’ scheduled property of the Suit, namely the tractor, was purchased by the deceased Manoharan from out of his income or whether it was purchased from out of the joint family funds in his name? (2) Whether the Defendants are entitled to claim maintenance from the First Plaintiff ever since the death of Manoharan and also for the same period claim mesne profits out of the ‘A’ scheduled properties from the Plaintiffs? (3) Whether there is any perversity or illegality in the judgment of the Trial Court? 9. All the points are taken together for discussion as they are inter-linked and inter-woven, with one another. 10. The indubitable and indisputable, or atleast the undeniable facts could pithily and precisely be set out thus: The First Plaintiff-Singaram’s wife is P2-Anjalam and they gave birth to two sons and three daughters, namely the deceased Manoharan, P4-Manimaran, P3-Jaya and two other married daughters who are not parties to the lis. Manoharan died on 19.9.2003 in an undivided state in the Coparcenary. It is the contention of the Defendants that upon the death of Manoharan, the husband of D1 and father of D2, they were driven out of the joint family house and hence, they took shelter in the house of the parents of Lalith-D1 and they have been denied maintenance also by P1, even though he has been in possession and enjoyment of the ‘A’ scheduled property, which is unarguably and unassailably, the joint family property. 11. I recollect and call up the trite proposition of Hindu law that when a property stands in the name of a Co-parcener who is not a ‘Kartha’, the presumption is that the said Co-parcener is the exclusive owner of the property. I would like to cite the following decisions in that regard. (i) Srinivas Krishnarao Kango v. Narayan Devji Kango and others, AIR 1954 SC 379 . An excerpt from it would run thus: “8. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. An excerpt from it would run thus: “8. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. 10. Whether the evidence adduced by the Plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisition could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well from the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. Where the finding of the Courts is that the income from the ancestral lands was not sufficient even for the maintenance of the members, and the houses in dispute are substantial, burden is on the Plaintiff who alleges the houses to have been acquired out of joint family funds, to establish it. Held that if the contention that on proof of the existence of the Watan lands the burden had shifted on to the Defendants to prove that the acquisitions were made without the aid of joint family funds, that burden had been discharged. Held that if the contention that on proof of the existence of the Watan lands the burden had shifted on to the Defendants to prove that the acquisitions were made without the aid of joint family funds, that burden had been discharged. Likewise, it was held that since the ancestral Watan lands are intact, and were available for partition, and the small income derived from them must have been utilized for the maintenance of the members of the family, whether it were held that the Plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the Defendants had discharged the burden of establishing that the acquisition were made without the aid of joint family funds, the result was the same.” (ii) Rukhmabai v. Lala Laxminarayan and others, AIR 1960 SC 335 , and an excerpt from it would run thus: “5. There is a presumption in Hindu law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called “division in status”, or and actual division among them by allotment of specific property to each one of them which is described as “division by metes and bounds”. A member need not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-à-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.” (iii) Pattusami Padayachi v. Mullaiammal and others, 1976 (2) MLJ 225 : “18. The properties purchased by one or other of the members of a Co-parcenery or joint family when the family is joint cannot as a matter of course be treated as joint family property. The Coparcener who challenges such title in the member and pleads that they should also be brought to the hotch-pot ought to establish by cogent and mature evidence that there was enough surplus income which was available in the joint family and which positively could be the foundation for such annexures made by one or the other of the members of the joint family. In all cases definite proof is required that the further purchase in the names of joint family members ought to have been made and could not have been made otherwise than from the surplus income of the family. For a greater reason the rule is made strict in the case of properties in the name of female members. The fact that a female member in a joint family has properties in her own name would not necessarily lead to the conclusion that the origin of such properties should be traced to the joint family or to the income from the joint family, inasmuch as the stridhanam property of a female and possession of property by her have been recognized from ancient times.” 12. A mere poring over and perusal of those Procedents would unarguably and unequivocally display and demonstrate that ‘B’ scheduled property, namely the tractor, which stood in the name of the deceased Manoharan is presumed to be the exclusive property of Manoharan only No doubt, it is a rebuttable presumption. It has to be seen as to how far the Plaintiffs rebutted such presumption. It has to be seen as to how far the Plaintiffs rebutted such presumption. 13. The learned Counsel for the Plaintiffs would place reliance on Exs.A3, A5 & A6. Ex.A3 is the original pronote, which according to the learned Counsel for the Plaintiffs, is the one which was executed by the First Plaintiff for the purpose of availing loan to a tune of Rs.29,000/-, in order to partly meet the requirement of the purchase price of the tractor. I am at a loss to understand as to how Ex.A3 could be taken as the loan borrowed for the purpose of purchasing the said tractor. Admittedly, the said tractor was not hypothecated to State Bank of India; wherefore, the contention appears to be only the ipse dixit of the Plaintiffs. 14. Ex.A5 is the bare photocopy of the agreement to sell, without any authenticity. I am surprised to see such a document having been exhibited before the Trial Court. 15. My mind is redolent and reminiscent of the following decision of the Hon’ble Apex Court. Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries and others, 2010 (8) SCC 423 , an excerpt from which would run thus: “10. …… An objection to the admissibility of the document can be raised before such endorsement is made and the Court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, 2003 (8) SCC 752 , where it was observed as follows: (SCC p.764, para 20) “20……. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved it itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as ‘an exhibit’ an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in Appeal or Revision. In the first case, merely because a document has been marked as ‘an exhibit’ an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in Appeal or Revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a Rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior Court.” (emphasis in Original ) 15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. In the first case, acquiescence would be no bar to raising the objection in a superior Court.” (emphasis in Original ) 15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The Trial Court should not have “marked” as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the Defendants. It should have declined to take them on record as evidence and left the Plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The Appellant, therefore, had a legitimate grievance in Appeal about the way the trial proceeded.” 16. As such, the photocopy of the Agreement is per se inadmissible in evidence and it should not have been allowed to be marked at all, that is the elephant in the room, no elaboration is required, and it is quite obvious. Over and above that, the said agreement to sell is an unregistered one, which was not even referred to in Ex.A12 dated 18.10.2003 according to the learned Counsel for the defendants. No doubt, PW2 would speak about this agreement and the relationship between PW2 and PW1 (the First Plaintiff) is quite obvious that they are the son-in-law and the father-in-law respectively. As such no evidentiary value could be attached to Ex.A5. 17. The learned Counsel for the Plaintiffs placing reliance on Ex.A6, would develop his argument to the effect that this loan card issued by the State Bank in the name of the deceased T.S. Manoharan would evince and evidence that for the purpose of purchasing the tractor, a sum of Rs.39,000/- was availed by him. Once again this argument fails to carry conviction with this Court for the reason, that if really the said sum of Rs.39,000/- was availed by Manoharan for the purpose of purchasing the tractor, certainly there must be evidence to that effect. As such, merely based on Ex.A6, the Plaintiffs’ contention cannot be countenanced and upheld as one proved or that they rebutted the Hindu law presumption in favour of the Defendants in respect of the ‘B’ schedule property which was purchased by Manoharan. 18. As such, merely based on Ex.A6, the Plaintiffs’ contention cannot be countenanced and upheld as one proved or that they rebutted the Hindu law presumption in favour of the Defendants in respect of the ‘B’ schedule property which was purchased by Manoharan. 18. The learned Counsel for the Plaintiffs would contend that the purpose of having purchased the tractor itself was to plough the ‘A’ Scheduled property and for the purpose of charring on agricultural activities in the ‘A’ scheduled property; whereas, DW1 would depose that her husband Manoharan purchased it for the purpose of using it for transporting sugarcane etc. and earn. As such, it would be only an oath against oath and on strong footing alone a decision has to be rendered. Accordingly, taking into account the Concept, ‘burden of proof’ as applied to this case supra, it is glaringly clear that the Plaintiffs did not discharge the burden of proof cast upon them. 19. In respect of the contention on the side of the Plaintiffs that DW1 (D1) herself deposed that she could not substantiate by producing any clinching evidence that the said tractor was purchased by her husband, I would like to observe that the burden did not get shifted from the Plaintiffs to the Defendants, as only after the Plaintiffs’’ discharging of their burden as observed supra, the burden of proof will become ambulatory and get shifted to the Defendants. The Plaintiffs without discharging their burden cannot try to fob off their responsibility on the Defendants. Accordingly, I hold that the Trial Court was wrong in holding that the ‘B’ scheduled property also was a joint family property. 20. The claim of the Defendants for maintenance form the First Plaintiff, in my opinion is not a well founded one. I would like to extract hereunder Section 19 of the Hindu Adoption and Maintenance Act, 1956: “19. Accordingly, I hold that the Trial Court was wrong in holding that the ‘B’ scheduled property also was a joint family property. 20. The claim of the Defendants for maintenance form the First Plaintiff, in my opinion is not a well founded one. I would like to extract hereunder Section 19 of the Hindu Adoption and Maintenance Act, 1956: “19. Maintenance of Widowed daughter-in-law (1) A Hindu wife, whether married before o after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance – (a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate. (1) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law. 21. Sub-section (2) of Section 19 of the Act, would unambiguously and unequivocally highlight the point that if at all the widow is having no share in the Coparcenary property, then the question of the father-in-law paying maintenance would arise. In this case, ever since the death of Manoharan, the First Plaintiff has not parted with any income from the ‘A’ scheduled property and the Defendants also were not allowed to enjoy the property. The Trial Court also in para 12 correctly ordered that the enquiry shroud be conducted under Order 20, Rule 12 of C.P.C. seeking mesne profits for the purpose of directing the Plaintiffs concerned to pay the mesne profits to the Defendants. In such case, they cannot try to claim mesne profits as well as maintenance and hence, I am of the view that the Defendants’ claim for mesne profits is not well founded. However, I reiterate that they are entitled to their share of the mesne profits as per law. 22. Accordingly, the point No.1 is answered to the effect that the ‘B’ scheduled property, namely the tractor, was purchased by the deceased Manoharan from out of his income. 23. However, I reiterate that they are entitled to their share of the mesne profits as per law. 22. Accordingly, the point No.1 is answered to the effect that the ‘B’ scheduled property, namely the tractor, was purchased by the deceased Manoharan from out of his income. 23. The Point No.2 is answered to the effect that the Defendants are not entitled to claim maintenance from the First Plaintiff in view of their to claim mesne profits out of the ‘A’ scheduled property from the Plaintiffs. 24. The Point No.3 is answered to the effect that in view of my discussion supra, there was no perversity or illegality in the judgment of the Trial Court in ordering partition of the ‘B’ scheduled property, even though it belongs to the Defendants exclusively. 25. In the result, the Appeal is partly allowed declaring that the Defendants are entitled to the ‘B’ scheduled property, namely the tractor which the Plaintiffs should hand over to the defendants and in the alternative as per Order 20, Rule 10 of C.P.C., the value of the tractor should be paid to the Defendants by the Plaintiffs. The rest of the judgment and decree of the Trial Court is confirmed. No costs. 26. This matter came up today under the caption ‘For Being Mentioned’. 27. At the time of mentioning, the learned Counsel for the Respondents/Plaintiffs, would submit that so far the ‘B’ scheduled item of the suit properties, which was ordered to be returned by the Plaintiffs to the Defendants as per the judgment of this Court dated 7.2.2012, it was already sold by the Plaintiffs. 28. Heard the learned Counsel for the Appellants/Defendants. 29. Order 20, Rule 10 of C.P.C. is very clear that if any movable property as ordered by this Court could not be returned for any valid reason, then its value should be paid by the party concerned to the Claimant. As of now, only preliminary decree was passed by the Trial Court. During final decree proceedings, the value of the tractor concerned, as per law should be got assessed and ordered to be paid by the Plaintiffs to the Defendants subject to payment of necessary Court fee by the Defendants and accordingly, the matter has to be dealt with.