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2014 DIGILAW 544 (MAD)

B. Rajendran v. S. K. Bangaru Naidu (Died)

2014-02-28

R.S.RAMANATHAN

body2014
Judgment 1. The plaintiffs in O.S.No.71 of 1985 on the file of the Subordinate Judge, Sankari are the appellants. The plaintiffs filed the suit for partition and the suit was dismissed and aggrieved by the same, this Appeal is filed. 2. The case of the plaintiffs is as follows:- The first defendant S.K. Bangaru Naidu is the father and the plaintiffs and defendants 2 and 3 are his children. The fourth defendant is the wife of the first defendant. In other words, the defendants 1 and 4 are the parents and the plaintiffs and the defendants 2 and 3 are their sons. The plaintiffs and the defendants constitute an Undivided Hindu Family and the properties belonged to the joint family and they are in joint possession of the same. Therefore, the plaintiffs got undivided 2/5 share in the property. It is further stated that the first item of the suit properties was allotted to the share of the first defendant in the family partition between the first defendant and his brothers and others in the year 1953 under a registered document dated 9.2.1953. The first defendant is the Kartha of the family. With the income from the joint family, he started news agency business, grocery business and other businesses. The plaintiffs and the defendants 2 and 3 were later joined in the business and they also contributed for the improvement of the same. The joint family was running a typewriting institute in the name and style of Vasan Typewriting Institute and in the same building, the family was also running "Vasan News Mart" and "Usha Tailoring Institute". Apart from that, the family was also doing lottery chit business. The other items of suit properties were also purchased out of the joint family earnings and income from nucleus. In 1955, the defendants 1 to 3 and the plaintiffs jointly borrowed a sum of Rs.2,000/- by mortgaging the joint family properties and the amount was utilised for the joint family business and also for the purchase of the second item of the suit properties. In the year 1963, out of the joint family earnings, the third item of property was purchased in the name of the first defendant and in the year 1975, fourth item of property was purchased in the name of the fourth defendant benami for the members of the joint family. In the year 1963, out of the joint family earnings, the third item of property was purchased in the name of the first defendant and in the year 1975, fourth item of property was purchased in the name of the fourth defendant benami for the members of the joint family. In the ancestral house, the second defendant is residing. The fifth item of the suit property was also purchased by the first defendant and it is a residential house site. In the first item of the suit property, the third defendant is residing. In the second item of suit property, the second plaintiff is residing. The first plaintiff is residing in a rented house. Therefore, the plaintiffs are entitled to 2/5 share together and the first defendant refused to divide the properties and therefore, the second plaintiff issued notice to the first defendant and that was replied by the first defendant stating that the properties were his self-acquired properties. The first defendant also settled the fifth item of the property in favour of the third defendant though the first defendant has no right to the said property. Therefore, the suit was filed for partition. 3. The first defendant filed a statement and the same was adopted by the defendant 2 to 4 and they denied the claim of the plaintiffs. It is stated that the first item was sold by the father of the first defendant, namely, Krishnasami Naidu to one Dhanammal and one Subbu Goundar on 30.1.1947 and later, the property was purchased by Dasappa Naidu on 11.2.1947 and the first defendant purchased the same from Mr. Dasappa Naidu and that was included in the partition deed. The first defendant did not inherit any ancestral property and the first item of property was the self-acquired property of the first defendant though it was allotted to him under the Partition Deed dated 9.2.1953. The first defendant was exercising all rights of ownership over the first item of property treating the same as his self-acquired property. The grocery stores and news agency businesses were not joint family businesses and out of the self-exertion of the first defendant, those agencies were obtained and were run out of the own efforts of the first defendant. The first defendant was exercising all rights of ownership over the first item of property treating the same as his self-acquired property. The grocery stores and news agency businesses were not joint family businesses and out of the self-exertion of the first defendant, those agencies were obtained and were run out of the own efforts of the first defendant. The first item of the property is only a house and it did not fetch any income and at the instance of the lending society, the sons were impleaded as parties to raise a loan by mortgaging the first item of properties and that will not make the property as joint family properties. The first plaintiff immediately after stopping his education was employed in India Cement Factory at Sankari West. Likewise, the second plaintiff, went to Ooty and stayed with his sister for about 2 years and thereafter, got himself employed in the Tamilnadu Printing Press at Tiruchengode and thereafter, working as a cleaner in a lorry and was also maintaining a small shop and therefore, the plaintiffs did not contribute their labour for the business. On 25.1.1978, the first defendant voluntarily gave various news agencies to the defendants as the same was self-acquired property and the plaintiffs cannot question the same. The joint family never run any Typewriting Institute. The third defendant was an L.I.C agent from 1960 to 1965. Out of his own funds, he hired typewriting machines and was running the institute and the plaintiffs cannot claim any right over the same. He also denied the allegation that the joint family nucleus provided funds for construction and purchasing the other items of the suit properties and the second item of the property was purchased by the first defendant out of his self-earning and the third item was also purchased by the first defendant out of his self-earning and these purchases were not from and out of his joint family funds. Therefore, items 2 and 3 are the separate suit properties of the first defendant and the plaintiffs cannot claim any right over the same. The fourth item of property was also a separate property of the fourth defendant, which was purchased from and out of Sreedhanam amount of the fourth defendant by her mother. Therefore, items 2 and 3 are the separate suit properties of the first defendant and the plaintiffs cannot claim any right over the same. The fourth item of property was also a separate property of the fourth defendant, which was purchased from and out of Sreedhanam amount of the fourth defendant by her mother. The mother of the fourth defendant executed a Will dated 9.3.1956 bequeathing the right to collect the outstanding amount due and payable to her and after realising those amount, the fourth defendant purchased a building in Door No.5-2-12 from one Perumal Chettiar and sold the same to one Muthu for a consideration of Rs.12,500/-. From and out of the sale consideration, she advanced Rs.10,000/- to the first defendant on a mortgage deed hypothecating the building bearing Door No.5-2-19 on 13.3.1975 and the first defendant repaid a sum of Rs.4,000/- and the fourth defendant purchased item No.4 out of her own money on 7.5.1975 from one Varadarajulu Naidu and neither the plaintiffs nor the defendants 1 to 3 can have any claim over the same. Similarly, the fifth item of property was also purchased by the first defendant from and out of the earnings and therefore, he is entitled to execute the settlement deed in respect of the property in favour of the defendants and that cannot be questioned by the plaintiffs. He also settled a portion of the properties comprising Door No.76 and 76A, namely, the first item of the property in favour of the third defendant and the third defendant spent more than Rs.20,000/- in altering the first item of the properties and he also mortgaged the same with the Sankari Co-operative Urban Bank Ltd., and the plaintiffs were aware of the same and did not object and therefore, the plaintiffs cannot claim any right over these properties. The third defendant is living with his family in a portion in item one of the properties and he is also running an institute in another portion and the plaintiffs cannot claim any share in those properties and all the properties were the self-acquired properties of the first defendant and therefore, the plaintiffs cannot claim any right over the same. 4. On the basis of the above pleadings, the following issues were framed by the trial Court:- 1. Whether the plaintiffs are entitled to 2/5 share in the suit properties? 2. 4. On the basis of the above pleadings, the following issues were framed by the trial Court:- 1. Whether the plaintiffs are entitled to 2/5 share in the suit properties? 2. Whether the 1st item of suit property is a self acquired property of the first defendant? 3. Whether the news agency and business are a separate properties of the 1st defendant? 4. Whether the plaintiffs are entitled to partition and separate possession? 5. To what relief the plaintiffs are entitled ? 5. On the side of the plaintiffs, the second plaintiff examined himself as PW.1 and on the side of the defendants, the first defendant examined himself as DW.1. The third defendant examined himself as DW.2 and the fourth defendant examined herself as DW.3. On the side of the plaintiffs, 7 Exhibits were marked and on the side of the defendants 27 Exhibits were marked. 6. The trial Court tried Issues 1 to 4 together and held that item one was only self acquired property of the first defendant and it was not the joint family property as claimed by the plaintiffs and no evidence was let in by the plaintiffs to come to the conclusion that the income from the first item of property was sufficient enough to purchase items 2 to 5 properties and no acceptable evidence was let in by the plaintiffs to prove that they worked along with the first defendant in the business and from and out of the business income, the other properties were purchased. The trial court also held that there was no proof to come to the conclusion that the property in Item one, was the joint family property and no evidence was let in to prove that there was adequate nucleus and from and out of which, first item and the other properties were acquired. The trial court also held that there was no proof to come to the conclusion that the property in Item one, was the joint family property and no evidence was let in to prove that there was adequate nucleus and from and out of which, first item and the other properties were acquired. The trial Court also held that, the fourth item of the suit properties was the self acquired property of the fourth defendant and under the Will Ex.B.25 executed by her mother, she got Rs.2,800/- and she also advanced Rs.10,000/- on mortgage to the first defendant and that mortgage was discharged by the first defendant and thereafter, she purchased item 4 of the suit properties and the fourth defendant proved that she had independent source of income to purchase the fourth item of the properties and therefore, the plaintiffs cannot claim any right over the fourth item of the properties and it is the absolute property of the fourth defendant. The trial Court also held that the third item of properties, namely, Vasan Typewriting Institute and Usha Tailoring School belong to the third defendant and his wife, and no evidence was let in by the plaintiffs that the joint family contributed any amount towards the establishment of Tailoring Institute and Typewriting Institute and therefore, the plaintiffs cannot claim any right over the same. In the result, the suit was dismissed. 7. Mr. T.R. Rajagopalan, learned Senior Counsel, appearing for the plaintiffs/appellants submitted that the trial court without properly appreciating the recitals in Ex.A.1, registered partition deed dated 9.2.1953, wherein it has been specifically held that the first item of the properties was the ancestral property and in the partition, it was allotted to the first defendant and therefore, erred in holding that the first item of the property was the self-acquired property of the first defendant. He also submitted that under Ex.A.2, the first item of property was mortgaged by the first defendant and also by the plaintiffs/defendants 2 and 3 and in that Ex.A.2 also, it has been specifically stated that the property was the ancestral property and they also borrowed a sum of Rs.2,000/- and thereafter, under Ex.B.2, the second item of the property was purchased in the name of the first defendant on 7.3.1956. Further, the third item of property was purchased by the first defendant on 9.11.1963 under Ex.B.3 and another property was purchased on 15.2.1967 under Ex.B.4. He, therefore, submitted that the joint family possessed of some nucleus and when no evidence was let in that the first defendant was having any other source of income and when the first item of the property was mortgaged for a sum of Rs.2,000/- treating the same as the ancestral property and thereafter, the second item of the property was purchased under Ex.B.2 within a period of 1= years would only lead to the conclusion that the first item provided the contribution for purchase of the second item and also for the establishment of the businesses. Learned Senior Counsel further submitted that except oral evidence of DW.1, no evidence was let in by DW.1 to prove that he had separate income for supporting the news paper agency and typewriting institute and in the absence of any evidence, it can be presumed that the businesses are also joint family businesses and admittedly, item 3 and 5 were purchased in the name of the first defendant and therefore, these properties must also be considered as joint family properties. He, therefore, submitted that under the Hindu Law, once a joint family nucleus is established, burden is heavily on the person, namely, Kartha, who pleads that the property is the self-acquired property, and he has to prove that he had an independent source of income and in this case, that was not proved and therefore, the Court below, ought to have held that items 2 and 3 are also the joint family properties in which the plaintiffs are entitled to 2/5th share. He also submitted that the fourth item of the property was purchased under Ex.B.25 in the name of the family member, namely, the fourth defendant. No evidence was let in to prove that she had an independent source of income and therefore, that property must also be treated as joint family properties. 8. He also submitted that the fourth item of the property was purchased under Ex.B.25 in the name of the family member, namely, the fourth defendant. No evidence was let in to prove that she had an independent source of income and therefore, that property must also be treated as joint family properties. 8. On the other hand, Mr.S.Jayaraman, learned counsel for the respondents 12 to 16 submitted that the trial Court considered various Exhibits and rightly came to the conclusion that the properties in Item 1, 2, 3 and 5 are self-acquired properties of the first defendant and the plaintiffs cannot claim any right over those properties and there is no need to interfere with the well considered finding of the trial Court. He also relied upon the following judgments in support of his contention:- (i) AIR 1954 SC 379 (Srinivas Krishnarao Kango v. Narayan Devji Kango and others) (ii) AIR 1968 SC 1276 (G.Narayana Raju (dead) by his legal representative vs. G.Chamaraju and others) (iii) 1998 (3) MLJ 167 (K.R.Sathyanarayanan Rao and another v. K.R.Venkoba Rao and others) (iv) 2004 (4) CTC 208 (R.Deivanai Ammal (Died) and another v. G.Meenakshi Ammal and others) He also submitted that no evidence was let in by the plaintiffs to prove that they contributed any physical labour in the business run by the first defendant and even assuming that the first item of property was ancestral property in the hands of the first defendant, admittedly, the first item of property was a house which did not yield any income and therefore, it cannot be contended that the other items of properties were purchased out of the income. He, therefore, submitted that in the absence of any evidence to prove that the first item of the property provided the consideration for purchase of other properties, the plaintiffs cannot claim any right over the same. He, therefore, submitted that in the absence of any evidence to prove that the first item of the property provided the consideration for purchase of other properties, the plaintiffs cannot claim any right over the same. He also submitted that the fourth item of the properties was purchased by the mother, the fourth defendant, and the mother had independent income and that was proved by marking the Will executed by the mother of the fourth defendant whereby she got Rs.2,800/- and the fourth defendant was doing money lending business to augment her income and she also advanced Rs.10,000/- to DW.1 on mortgage and later, it was discharged by DW.1 vide Ex.B.1 receipt and she purchased the fourth item separately and therefore, the mother of fourth defendant provided consideration for the purchase of the fourth item of the properties. Therefore, it is her separate property in which the plaintiffs cannot claim any right. He also submitted that in respect of the property standing in the name of the female member, burden is heavily on the other members of the family to prove that the property was purchased in the name of the female member from and out of the income from the joint family. In this case, no such proof was adduced and therefore, the plaintiffs failed to prove that the fourth item of the properties was purchased and from and out of the joint family income. He, therefore, submitted that the trial Court considered all these aspects and rightly held that the plaintiffs failed to prove that the joint family had nucleus and it provided consideration for the purchase of the other properties and in the absence of any such proof, the plaintiffs cannot claim any right over the properties and rightly dismissed the suit. He, therefore, submitted that the judgment and decree of the trial Court be confirmed. 9. On the basis of the above submissions, the following points for consideration arises in this Appeal:- (i) whether the first item of the suit properties was the self-acquired property of the first defendant? (ii) whether the items of 2, 3 and 5 of the suit properties were purchased from and out of the joint family income, though it stands in the name of the first defendant and therefore, available for partition? (iii) whether the fourth item is a self acquired property of the fourth defendant? 10. (ii) whether the items of 2, 3 and 5 of the suit properties were purchased from and out of the joint family income, though it stands in the name of the first defendant and therefore, available for partition? (iii) whether the fourth item is a self acquired property of the fourth defendant? 10. Point No.(i) : Admittedly, the first item of the property was dealt with under Ex.A.1 dated 9.2.1953. It is the specific contention of the first defendant that it is his self-acquired property and though the property was given to him under Ex.A.1, it is not ancestral in his hands and he purchased the said property. Ex.A.1 is a registered partition deed and the parties to the documents are Dasappa Naidu who is the brother of the first defendant, and the first defendant, Thayammal who is the mother of the first defendant, Dhanalakshmi who is the wife of Dasappa Naidu and Kuppammal. In the preamble, it is stated that "A" schedule property was allotted to the share of Dasappa Naidu. "B" schedule property was allotted to the share of Bangaru Naidu. It is further stated that the first item of "A" Schedule property allotted to Dasapa Naidu was originally purchased in the name of the mother, Dhanalakshmi Ammal, and she executed a settlement deed in the year 1946 in respect of that property in favour of her daughters-in-law but the property belongs to the joint family of the sons, namely, Dasappa Naidu and Bangaru Naidu. Therefore, as per the decision of the panchayatdars, the first item of "A" schedule property was allotted to Dasappa Naidu, son of Dhanalakshmi Ammal. Similarly, the second item of "A" schedule property allotted to Dasappa Naidu, was earlier purchased in the name of Dhanalakshmi Ammal, and it also belonged to the Dasappa Naidu and Bangaru Naidu, and under the partition deed 1953, it was also allotted to the share of Dasappa Naidu. It is also stated that the third item of "A" schedule property in the partition deed was purchased in the joint names of Dasappa Naidu and Bangaru Naidu under the registered sale deed of the year 1937 and the property also belonged to the joint family and was also allotted to the share of the first son Dasappa Naidu. It is also stated that the third item of "A" schedule property in the partition deed was purchased in the joint names of Dasappa Naidu and Bangaru Naidu under the registered sale deed of the year 1937 and the property also belonged to the joint family and was also allotted to the share of the first son Dasappa Naidu. Similarly, in respect of the properties allotted to the first defendant in the said partition deed, it is stated that the "B" schedule property was allotted to the first defendant and the first item of "B" schedule property belonged to Dasappa Naidu and Bangaru Naidu and therefore, they are joint family properties and that property was allotted to the first defendant Bangaru Naidu. The first item of "B" Schedule property that was allotted to Bangaru Naidu under Ex.A.1 is the present first item of property in the suit. Therefore, it is clear from Ex.A.1 that the family of Dasappa Naidu and Bangaru Naidu possessed of properties and they also constituted joint family along with the parents and various properties were purchased in the names of the first defendant and his brother Dasappa Naidu and some properties were also purchased in the name of the mother of the first defendant and Dasappa Naidu and those properties were also dealt with partition deed. Therefore, it is made clear from the recitals of Ex.A.1 that the first item of properties belongs to the joint family property of the first defendant and his brother, and the first defendant got the same under the partition deed Ex.A.1. Therefore, the first item is the joint family property or ancestral property in the hands of the first defendant and this aspect was not properly appreciated by the Court below. Therefore, Point No.(i) is answered in favour of the appellants holding that the first item of the property is the ancestral property in the hands of the first defendant. 11. Point No. (ii): Having held that the first item of property is the ancestral property in the hands of the first defendant, we will have to see whether items 2, 3 and 5 were separate properties of the first defendant or the joint family properties of the plaintiffs and defendants 1 to 3. 11. Point No. (ii): Having held that the first item of property is the ancestral property in the hands of the first defendant, we will have to see whether items 2, 3 and 5 were separate properties of the first defendant or the joint family properties of the plaintiffs and defendants 1 to 3. Admittedly, the first defendant is the Kartha of the family consisting of himself, plaintiffs and the defendants 2 and 3 and therefore, when properties are purchased in the name of the Kartha and when it is proved that the joint family possessed nucleus and the nucleus provided the consideration, the burden is heavily on the Kartha to prove that the property subsequently purchased in his name are his separate properties and not joint family properties. Admittedly, the first item of the properties is a house and therefore, that may not yield any income. Though the first defendant contend that he had taken news agency and was running typewriting institute and from and out of those incomes, the other properties were purchased, except oral evidence, no proof was produced by the first defendant to substantiate his contention. On the other hand, the plaintiffs marked Ex.A.2, the mortgage deed executed by the first defendant along with his sons mortgaging the first item of the properties for raising a long of Rs.2,000/-. In Ex.A.2 also, it is stated clearly that the property, namely, first item is the ancestral property. If really, the first defendant was earning good income from the news paper business as well as typewriting institute, there was no necessity to avail a loan of Rs.2,000/- by mortgaging the first item of property. Therefore, in the absence of any proof that the first defendant was having any separate income and the fact that the first item of property was mortgaged by the first defendant along with his sons to raise a loan of Rs.2,000/- and within a period of 1 years, the second item property was purchased, all that would only lead to the conclusion that the second item property was also purchased from and out of the income from the nucleus, namely, the first item of property. 12. 12. In the judgment reported in AIR 1954 SC 379 supra, it is held as follows: "Proof of the existence of a Hindu joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon any one 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 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. 13. It is also held in the judgment reported in 2004 (4) CTC 208 supra that mere existence of nucleus however small or insignificant is not enough and it should be shown to be of such character as could reasonably lead to the conclusion of the acquisition of the property alleged to be part of the joint family property. When a person alleging the property as ancestral property proves that there was a nucleus by means of which other property might have been acquired, then the burden is shifted on the party alleging self-acquisition to prove that the property was acquired without any aid from the family estate. The same principles were reiterated in the judgment reported in AIR 1954 SC 379 supra. 14. In the judgment reported in AIR 1969 SC 1076 in the matter of Mudigowda v. Ramachandra, it is held as follows:- "The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either 'admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate." 15. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate." 15. As stated supra, no evidence was let in by the first defendant to prove that he had any separate income except oral testimony of DWs.1 and 2 and on the other hand, Ex.A.2 proves that the first item of property was mortgaged for a sum of Rs.2,000/- and thereafter, the second item was purchased. It is also settled law that when the family possessed of some nucleus even though no proof has been adduced to the effect that nucleus yielded income, in the absence of any proof of independent income by the person in whose name the properties were purchased would lead to the conclusion that the nucleus would have provided consideration for the purchase of other properties in the name of other members. Further, it is stated that when the Kartha of the family claims certain properties to be his self acquired properties and not joint family properties and when it is proved that joint family possessed of some nucleus, the burden is heavily on the Kartha to prove that the properties which are in his name are his self-acquired properties and not purchased out of the income from the ancestral property. 16. Bearing these principles in mind, having regard to the fact that, in this case, the plaintiffs established that the joint family possessed of properties and the first item was the joint family property allotted to the first defendant in the partition deed under Ex.A.1 and since the second item of property was purchased after mortgaging the first item of the property, the second item of property is treated as the joint family property and the first defendant also failed to prove any independent income for the purchase of items 2, 3 and 5. Therefore, the finding of the trial Court that all the properties are self-acquired properties of the first defendant and therefore, he has got every right to settle the properties in favour of the third defendant and the plaintiffs cannot claim any right over the same cannot be sustained and the findings are liable to set aside. 17. Therefore, the finding of the trial Court that all the properties are self-acquired properties of the first defendant and therefore, he has got every right to settle the properties in favour of the third defendant and the plaintiffs cannot claim any right over the same cannot be sustained and the findings are liable to set aside. 17. Therefore, I hold that items 2, 3 and 5 also belong to the joint family of plaintiffs and the defendants 1 to 3 and the plaintiffs are entitled to their share in these properties. 18. As regards the fourth item of properties, admittedly, the property was purchased in the name of the mother who is the fourth defendant, and the mother produced Ex.B.25 Will executed in her favour by her mother. Ex.B.26 is the mortgage by the first defendant in favour of the fourth defendant. Since the second item of property was purchased by mortgaging the first item, the second item of property is treated as the joint family property. However, when the properties are purchased in the name of a family member, and when one co-parcener claims that the property also belongs to the joint family, the burden is heavily on the other co-parcener to prove the same. In this case, the evidence by the fourth defendant clearly proves that the fourth defendant had the source to purchase the fourth item of properties and no proof was adduced by the plaintiffs that the fourth item property was purchased from and out of the income from the joint family properties. 19. Hence, I hold that the fourth item of the properties as separate property of the fourth defendant/mother, the plaintiffs cannot claim any right over the same. As regards "B" schedule properties, no evidence was let in to prove that those properties were acquired from and out of the joint family income and as a matter of fact, evidence was adduced by the third defendant regarding the typewriting institute. Therefore, I hold that "B" schedule properties namely, movable properties are separate properties of the third defendant and the plaintiffs cannot avail any right over the same. 20. Therefore, I hold that "B" schedule properties namely, movable properties are separate properties of the third defendant and the plaintiffs cannot avail any right over the same. 20. In the result, the judgment and decree of the trial Court, insofar as items 1, 2, 3 and 5 of "A" schedule properties are concerned is set aside and I hold that items 1, 2, 3 and 5 of the "A" schedule properties are joint family properties of the plaintiffs and the defendants 1 to 3 in which the plaintiffs are entitled to 2/5th share and therefore, the settlement deed executed by the first defendant under Ex.B.23, Ex.B.24 will not bind the plaintiffs and they are entitled to 2/5th share in those properties. With regard to item 4 of "A" Schedule properties, the Judgment and Decree of the trial Court are confirmed. 21. In the result, the Appeal is partly allowed as stated above. No order as to costs.