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2014 DIGILAW 793 (MAD)

G. Mohandoss v. G. Shanmugham

2014-03-28

R.S.RAMANATHAN

body2014
JUDGMENT 1. The suit, viz., O.S.No.71 of 1979 was filed by G. Shanmugam, the first respondent in A.S.No.713 of 1984 for partition of his 10/54 share in the suit properties. The suit was partly decreed, and a preliminary decree was passed in respect of 10/54 share of the properties, excluding item 1 in ‘A’ schedule, items 6 and 7 in ‘B’ schedule, items 1 and 2 in D schedule and schedules ‘E’ to ‘I’ in favour of the plaintiff, and the suit was dismissed in respect of item 1 in ‘A’ schedule, items 6 and 7 in ‘B’ schedule, items 1 and 2 in ‘D’ schedule and schedules ‘E’ to ‘I’. 2. Challenging the above said preliminary decree passed in O.S.No.71 of 1979, the defendants 3, 4 and 15 therein filed A.S.No.713 of 1984. 3. The plaintiff in O.S.No.71 of 1979 filed A.S.No.367 of 1986 against the disallowed portion of the properties mentioned in the suit. 4. The fourth defendant in O.S.No.71 of 1979 filed O.S.No.38 of 1978, on the file of the District Munsif Court, Thiruvarur, for partition of properties mentioned therein and to allot 1/6 share in the suit property and also 1/9 share out of 1/6th share of the first defendant in that suit. That suit was transferred to the Sub Court, Nagapattinam, and re-numbered as O.S.No.108 of 1980 and it was tried along with O.S.No.71 of 1979. O.S.No.108 of 1980 was dismissed. Hence, the plaintiff and the fifth defendant in O.S.No.108 of 1980 filed Tr.A.S.No.80 of 2002. However, in these appeals we are concerned with the preliminary decree passed in O.S.No.71 of 1979 and hence, I am not dealing in detail with the pleadings in O.S.No.108 of 1980, and the findings given in that suit. 5. The allegations made in the plaint in O.S.No.71 of 1979, is as follows: i) The suit properties were ancestral properties of Gopalsamy Vanniar and the plaintiff and the defendants 1 to 4 are his sons. The fifth defendant is the widow of Gopalsamy Vanniar. They originally hailed from a Village called ‘Chozhanidhi’, situate at Mannargudi Taluk. One Ponnusamy Vanniar had ancestral properties in that place and he sold those properties and settled at Vijayapuram, Thiruvarur, and was doing flower business there. The said Ponnusamy Vanniar had three sons, viz., i) Gopalsamy Vanniar, ii) Kandasamy Vanniar and iii) Loganathan Vanniar. They originally hailed from a Village called ‘Chozhanidhi’, situate at Mannargudi Taluk. One Ponnusamy Vanniar had ancestral properties in that place and he sold those properties and settled at Vijayapuram, Thiruvarur, and was doing flower business there. The said Ponnusamy Vanniar had three sons, viz., i) Gopalsamy Vanniar, ii) Kandasamy Vanniar and iii) Loganathan Vanniar. Kandasamy Vanniar died at a very young age, Loganathan left the family and Gopalsamy Vanniar was doing flower business along with his father, as a joint family. The suit properties were purchased from the sale proceeds of the ancestral properties and also from the income earned from flower business, jointly done by Ponnusamy Vanniar and Gopalsamy Vanniar, and therefore, the suit properties are the ancestral properties. ii) Ponnusamy Vanniar executed a settlement deed-Ex.A.1, dated 14.11.1959 in favour of his son-Gopalsamy Vanniar, and, it is a family arrangement. Items 6 and 7 of ‘B’ schedule properties were purchased from the joint family income of Ponnusamy Vanniar and Gopalsamy Vanniar, in the name of the fifth defendant, the wife of Gopalsamy Vanniar. Ponnusamy Vanniar, died in the year, 1961. Thereafter, there was a family arrangement between Gopalsamy Vanniar and his brother-Loganathan. The said Loganathan released his right in the suit properties in favour of Gopalsamy Vanniar, under a release deed-Ex.A.2, dated 03.06.1973. Therefore, Gopalsamy Vanniar became the owner of the properties and was holding those properties as joint family properties. The defendants 9 to 12 are the tenants. Gopalsamy Vanniar purchased some properties from and out of the income he got from flower business and majority of the properties were purchased from and out of the income obtained from the joint family properties. ‘D’ schedule properties are the leasehold properties, belonging to Arulmighu Thiyagarajaswami Devasthanam and those properties are also treated as joint family properties. iii) Though the sons of Gopalsamy Vanniar got married, and were living separately, the properties were enjoyed by them in common. The plaintiff being the second son of Gopalsamy Vanniar, was so helpful to him. Gopalsamy Vanniar was suffering from blood pressure and was not conscious prior to his death. At that time, the defendants 1 to 4 obtained some signatures in certain documents from their father-Gopalsamy Vanniar by practicing fraud and the plaintiff came to know of the same later. Gopalsamy Vanniar, died on 22.06.1978. Gopalsamy Vanniar was suffering from blood pressure and was not conscious prior to his death. At that time, the defendants 1 to 4 obtained some signatures in certain documents from their father-Gopalsamy Vanniar by practicing fraud and the plaintiff came to know of the same later. Gopalsamy Vanniar, died on 22.06.1978. The properties are the joint family properties and Gopalsamy Vanniar never exercised any exclusive right over the properties and the properties were not his separate properties. The documents obtained from Gopalsamy Vanniar by the defendants 1 to 4, by practicing fraud, are not valid and those documents will not affect the rights of the plaintiff. The properties are also not in possession of the respective parties, stated in those documents and the properties are in common enjoyment of the plaintiff and the defendants 1 to 4. iv) The fourth defendant filed O.S.No.38 of 1978 against Gopalsamy Vanniar and Others on the file of the District Munsif Court, Thiruvarur. That suit was transferred to the Sub Court, Nagapattinam, and re-numbered as O.S.No.108 of 1980. In O.S.No.108 of 1980, the plaintiff in O.S.No.71 of 1979 is the third defendant. During the pendency of the suit, Gopalsamy Vanniar died. The house, wherein, the plaintiff is residing is in the name of his mother/fifth defendant. The said house property was also purchased from and out of the joint family income and the fifth defendant cannot claim any exclusive right over the same. The plaintiff is residing in that property for the past 14 years and also made certain repairs. v) The thirteenth defendant filed a suit, viz., O.S.No.317 of 1978 against the second defendant and brought the first item of ‘A’ schedule property to auction and that property was purchased by the fourteenth defendant, who is none other than the father-in-law of the second defendant. The fifteenth defendant is the wife of the third defendant and she is claiming right over second item of ‘B’ schedule property, viz., house property and the third defendant also transferred that property in her name, but, she cannot claim any right over the same. vi) After the death of Gopalsamy Vanniar, the plaintiff wanted partition of the properties amicably, and he also made attempts through mediators, but that was refused by the defendants 1 to 4. Therefore, the plaintiff filed the suit for partition of his 10/54 share in the suit properties. 6. vi) After the death of Gopalsamy Vanniar, the plaintiff wanted partition of the properties amicably, and he also made attempts through mediators, but that was refused by the defendants 1 to 4. Therefore, the plaintiff filed the suit for partition of his 10/54 share in the suit properties. 6. The defendants 1, 3 and 4 filed a written statement, stating that the suit properties were the separate properties of Gopalsamy Vanniar and they were not his joint family properties and the release deed executed by Loganathan in favour of Gopalsamy Vanniar was denied and Gopalsamy Vanniar was doing flower business and from and out of the income obtained from that business, he purchased the suit properties. Therefore, the suit properties were not ancestral properties in the hands of Gopalsamy Vanniar. Items 6 and 7 of ‘B’ schedule properties were purchased by the fifth defendant, out of her income and those properties were not purchased from and out of the joint family income. Similarly, ‘D’ schedule properties did not belong to the estate of Gopalsamy Vanniar, and they are the leasehold properties. Therefore, the defendants 1, 3 and 4 separately took items 1 and 2 of ‘D’ schedule property from Devashanam, and hence, those properties are not liable for partition. 7. The defendants 1, 3 and 4 further stated that Gopalsamy Vanniar, while he was in a sound and disposing state of mind, executed a settlement deed in favour of the defendants 1 to 4 in respect of certain properties and he also made a family arrangement in respect of other properties in favour of second defendant, and therefore, the suit for partition is not maintainable. Gopalswamy Vanniar was doing flower business and though he purchased certain properties from and out of the income he got from the properties given to him by his father, those properties were not included in the suit. It is false to state that Gopalsamy Vanniar died intestate. On 12.03.1978, Gopalsamy Vanniar executed a Will. The properties mentioned in schedules ‘E’ to ‘I’ were not in possession of Gopalsamy Vanniar, at the time of his death and those properties were never in existence, and therefore, the suit is liable to be dismissed. 8. It is false to state that Gopalsamy Vanniar died intestate. On 12.03.1978, Gopalsamy Vanniar executed a Will. The properties mentioned in schedules ‘E’ to ‘I’ were not in possession of Gopalsamy Vanniar, at the time of his death and those properties were never in existence, and therefore, the suit is liable to be dismissed. 8. First defendant filed separate written statement later, stating that though he filed the written statement earlier along with the defendants 3 and 4, at that time, he was under the control of the fourth defendant, and therefore, he filed the written statement, as stated by the fourth defendant. But, in the separate statement, he admitted the plaintiff’s claim of 10/54 share in the suit properties. The first defendant also claimed 10/54 share for him and prayed for decreeing the suit, as per the prayer in the suit. 9. Second defendant filed a separate written statement, stating that the properties were the ancestral properties in the hands of Gopalsamy Vanniar and those properties were purchased by Gopalsamy Vanniar and his father-Ponnusamy Vanniar from and out of the sale proceeds of the ancestral properties. The second defendant also admitted that Ponnusamy Vanniar gave some properties to Gopalsamy Vanniar and Gopalsamy Vanniar was enjoying those properties for himself and on behalf of his sons. Therefore, the second defendant is also entitled to 10/54 share in the suit properties. 10. Fifth defendant filed a written statement, separately, stating that Ponnusamy Vanniar had no ancestral properties, and therefore, the allegation that by selling the ancestral properties, he purchased other properties is not correct. The husband of the fifth defendant, viz., Gopalsamy Vanniar was doing flower business and from that income he purchased the suit properties and therefore, the properties were self acquired properties of Gopalsamy Vanniar and they were not ancestral properties in his hands. Therefore, the plaintiff cannot claim any right over the suit properties. She also contended that items 6 and 7 of ‘B’ schedule property are her separate properties and they are not the joint family properties. Therefore, neither the plaintiff, nor the defendants 1 o 4, can claim any right over the same. The plaintiff was permitted to reside in Door No.18 and the other tenants are paying rent to the fifth defendant and she is paying the house tax in respect of other buildings. Therefore, neither the plaintiff, nor the defendants 1 o 4, can claim any right over the same. The plaintiff was permitted to reside in Door No.18 and the other tenants are paying rent to the fifth defendant and she is paying the house tax in respect of other buildings. The plaintiff is paying the house tax in respect of the portion, where, he is residing, as directed by the fifth defendant. Gopalsamy Vanniar executed a Will dated 12.03.1978. As per the Will, 10 cents in sixth item and 7 cents in thirteenth item of ‘C’ schedule properties are bequeathed to the fifth defendant and the Will came into effect after the death of her husband/Gopalsamy Vanniar. Therefore, the suit is liable to be dismissed. 11. Fourteenth defendant filed separate written statement, stating that the thirteenth defendant filed a suit in O.S.No.317 of 1978 against the second defendant for recovery of money and that suit was decreed and in execution of the decree, the first item of ‘A’ schedule property was attached and brought to sale through the Court auction and the fourteenth defendant purchased first item of ‘A’ schedule in Court auction and the sale in favour of the fourteenth defendant is valid. If for any reason the Court comes to the conclusion that the first item of ‘A’ schedule property also belongs to the joint family of Gopalsamy Vanniar, the said property may be allotted to the share of the second defendant, so that the fourteenth defendant can get the properties. 12. The fifteenth defendant filed a written statement, stating that second item of ‘B’ schedule property was settled by Gopalsamy Vanniar in favour of her husband/third defendant and in that property, she constructed a house out of her own income, and therefore, item 2 of ‘B’ schedule property belongs to the fifteenth defendant and that property is not liable for partition. She also contended that the properties are not the joint family properties of Gopalsamy Vanniar and the suit is liable to be dismissed. 13. Based on the pleadings, the following issues were framed in O.S.No.71 of 1979: i) Whether the suit properties were the ancestral properties in the hands of Gopalsamy Vanniar, or, were his separate properties? She also contended that the properties are not the joint family properties of Gopalsamy Vanniar and the suit is liable to be dismissed. 13. Based on the pleadings, the following issues were framed in O.S.No.71 of 1979: i) Whether the suit properties were the ancestral properties in the hands of Gopalsamy Vanniar, or, were his separate properties? ii) Whether the settlement deed dated 14.11.1959 executed by Ponnusamy Vanniar in favour of his son-Gopalsamy Vanniar and the release deed, dated 03.06.1973, executed by Loganathan in favour of his brother-Gopalsamy Vanniar were family arrangements? iii) Whether the settlement deeds dated 12.10.1977, 16.02.1978 and 20.02.1978 executed by Gopalsamy Vanniar in favour of the defendants 3 and 4, and 1 and 2 respectively are true and binding on the plaintiff? iv) Whether the Will dated 12.03.1978 executed by Gopalsamy Vanniar is true? v) Whether items 6 and 7 in ‘B’ schedule and items 1 and 2 in ‘D’ schedule are not liable for partition, and whether the plaintiff is entitled to claim partition in respect of those properties too? vi) Whether the properties mentioned in schedules ‘E’ to ‘I’ are in existence? vii) Whether the plaintiff is entitled to 10/54 share in the suit properties? viii) What share, the plaintiff and the defendants are entitled to? and ix) To what relief, the plaintiff is entitled to? 14. On the basis of memo filed by both the parties, O.S.No.71 of 1979 and O.S.No.108 of 1980 were tried together and evidence was let in O.S.No.71 of 1979 and the same was treated as evidence in O.S.No.108 of 1980 and a common judgment was pronounced. 15. On the side of the plaintiff, the plaintiff examined himself as P.W.1 and examined two other witnesses as P.W.2 and P.W.3. On the side of the defendants, the first defendant examined himself as D.W.1, the fourth defendant examined himself as D.W.2, the fifth defendant examined herself as D.W.4, the third defendant examined himself as D.W.6, the second defendant examined himself as D.W.7, the fourteenth defendant examined himself as D.W.8. One Asan Mohammed and Haja Moheedin were examined as D.Ws 3 and 5. 16. On the side of the plaintiff, 16 exhibits were marked and on the side of the defendants, 73 exhibits were marked. 17. One Asan Mohammed and Haja Moheedin were examined as D.Ws 3 and 5. 16. On the side of the plaintiff, 16 exhibits were marked and on the side of the defendants, 73 exhibits were marked. 17. In O.S.No.71 of 1979, issues i) and ii) were answered holding that some properties were ancestral properties in the hands of Gopalsamy Vanniar and Exs.A.1 and A.2 were executed as family settlement deeds and some properties were separate properties of Gopalsamy Vanniar and answered issues i) and ii) in favour of the plaintiff. Issues iii) and iv) in O.S.No.71 of 1979 were tried together and it was held that though the settlement deeds dated 12.10.1977, 16.02.1978 and 20.01.1978 were true, they were not binding on the plaintiff. Similarly, though the Will was proved, the same was not binding on the plaintiff, and answered issues (iii) and (iv) in favour of the plaintiff. Issue No.(v) was answered in favour of the fifth defendant holding that items 6 and 7 of ‘B’ schedule property were purchased by the fifth defendant from her own income and they are not the joint family properties, and therefore, the plaintiff cannot claim any right or share in those properties. Similarly, items 1 and 2 of ‘D’ schedule property also did not belong to the joint family and they are separate properties of the defendants 1 to 4 and the plaintiff cannot claim right over the same. In fine, issue No.(v) was answered against the plaintiff. Issue No.(vi) was also answered against the plaintiff holding that the plaintiff failed to prove that schedules ‘E’ to ‘I’ are in existence. 18. Issue No.(vii) in O.S.No.71 of 1979 and second issue in O.S.No.108 of 1980 were tried together and it was held that in respect of first item in ‘A’ schedule, items 6 and 7 in ‘B’ schedule, items 1 and 2 in ‘D’ schedule and schedules ‘E’ to ‘I’, the plaintiff is not entitled to claim any share, as those properties are not joint family properties and in respect of other properties, the plaintiff and the defendants 1 to 4 are each entitled to 10/54 share and the defendants 5 to 8 are each entitled to 1/54 share. Issues (viii) and (x) in O.S.No.71 of 1979 are also answered holding that the plaintiff is entitled to 10/54 share in respect of the properties, as answered in issue no.(vii) in O.S.No.71 of 1979 that the plaintiff is entitled to 10/54 in respect of the properties, excluding first item of ‘A’ schedule property, items 6 and 7 of ‘B’ schedule property, items 1 and 2 of ‘D’ schedule property and schedules ‘E’ to ‘I’. In the result, O.S.No.71 of 1979 was partly decreed and O.S.No.108 of 1980 was dismissed. 19. The plaintiff in O.S.No.71 of 1979 filed A.S.No.367 of 1986 against the disallowed portion, the defendants 3 4 and 15 filed A.S.No.713 of 1984 against the decreed portion in O.S.No.71 of 1979 and cross objection was filed by the first defendant in O.S.No.71 of 1979, in A.S.No.713 of 1984. 20. All the above three Appeals were heard together by the Hon’ble Division Bench of this Court, and by a judgment dated 26.09.2002, directed the parties to let in evidence in respect of certain points framed by it and directed the Trial Court to take evidence in respect of those points by the parties to the suit. 21. Pursuant to the direction issued by the Hon’ble Division Bench, the parties also further examined witnesses P.W.1 and D.Ws 1, 5 and 6 and Exs.A.17 and B.74 to B.103 were marked. 22. Mr.S.Parthasarathy, the learned Senior Counsel appearing for the appellants in A.S.No.713 of 1984/respondents 3, 4 and 15 in A.S.No.367 of 1986 submitted that the Trial Court erred in holding that the suit properties excluding item 1 in ‘A’ schedule property, items 6 and 7 in ‘B’ schedule property, items 1 and 2 in ‘D’ schedule property and schedules ‘E’ to ‘I’ were the joint family properties in the hands of Gopalsamy Vanniar, and therefore, the plaintiff was entitled to 10/54 share in those properties. The learned Senior Counsel submitted that no evidence was let in by the plaintiff-G.Shanmugam to prove that Ponnusamy Vanniar had any ancestral nucleus in the Village called Chozhanidhi and those properties were sold and from and out of the income, other properties were purchased after he settled at Vijayapuram, Thiruvarur Taluk. 23. The learned Senior Counsel submitted that no evidence was let in by the plaintiff-G.Shanmugam to prove that Ponnusamy Vanniar had any ancestral nucleus in the Village called Chozhanidhi and those properties were sold and from and out of the income, other properties were purchased after he settled at Vijayapuram, Thiruvarur Taluk. 23. The learned Senior Counsel for the appellants in A.S.No.713 of 1984 further submitted that the Hon’ble Division Bench remanded the case to the Trial Court for limited purpose to take further evidence and the Division Bench entertained certain doubts regarding the source for purchasing the properties, having regard to Ex.B.51, viz., the properties purchased in the year, 1901, in the name of Ponnusamy Vanniar, for a sum of Rs.300/- and at that time, Ponnusamy Vanniar was only 21 years old. Therefore, in the absence of any evidence, Whether that property was purchased from and out of his own income, or, from the income of other joint family properties, it cannot be stated that the properties were the self acquired properties of Ponnusamy Vanniar. That apart, both the parties have not let in any evidence about the dates and years, in which, the properties excluding schedules A to D were purchased. For the said purpose, the Division Bench directed the parties to let in evidence to the effect whether any properties were left out by Arnachalam, the father of Ponnusamy Vanniar and also framed five points for the purpose of letting in evidence in respect of those points. Evenafter remand, the plaintiff was not able to produce any acceptable evidence to the effect that the properties were ancestral properties in the hands of Ponnusamy Vanniar and Gopalsamy Vanniar. Evenafter remand, the plaintiff was not able to produce any acceptable evidence to the effect that the properties were ancestral properties in the hands of Ponnusamy Vanniar and Gopalsamy Vanniar. On the other hand, evidence was let in to prove that the properties mentioned in the suits were purchased by Gopalsamy Vanniar in his name and there was no ancestral nucleus for purchasing those properties, and without considering the documents filed during trial, the Trial Court erred in holding that some of the properties, which were included in the suits, were purchased out of the joint family income and the findings of the Trial Court are erroneous, in as much as, no acceptable evidence was let in by the plaintiff to prove that Ponnusamy Vanniar, the father of Gopalsamy Vanniar, inherited any properties from his father-Arunachalam and that he (Ponnusamy Vanniar) settled the ancestral properties in his hands in favour of his son-Gopalsamy Vanniar. 24. The learned Senior Counsel for the appellants in A.S.No.713 of 1984 further submitted that Ex.A.1 is the settlement deed executed by Ponnusamy Vanniar, in favour of his son-Gopalsamy Vanniar, wherein, it is specifically stated that the properties mentioned therein were the self acquired properties of Ponnusamy Vanniar, and they were his own properties. Under Ex.A.1, the properties were settled by Ponnusamy Vanniar in favour of Gopalsamy Vanniar, under Ex.B.2, Gopalsamy Vanniar settled some of the properties he got under Ex.A.1, in favour of first defendant-Arunachalam, under Ex.B.50, Gopalsamy Vanniar settled some other properties he got under Ex.A.1, in favour of the second defendant-Durai and under Ex.B.21, Gopalsamy Vanniar settled the some properties in favour of the defendants 3 and 4. In Ex.B.21, Gopalsamy Vannia mentioned that the properties were his separate properties and also stated that eventhough he got some properties under the release deed executed by his brother-Loganathan and some of the properties he got under Ex.A.1, and those properties were settled on the defendants 3 and 4. 25. The learned Senior Counsel for the appellants in A.S.No.713 of 1984 further submitted that items 6 and 7 of ‘B’ schedule properties were purchased in the name of the fifth defendant and they are also her separate properties. As per the Hindu Law, when the properties stand in the name of a female member, presumption is that those properties are the separate properties of the family member, in whose name, those properties were purchased. As per the Hindu Law, when the properties stand in the name of a female member, presumption is that those properties are the separate properties of the family member, in whose name, those properties were purchased. In this case, without proving any ancestral nucleus, the plaintiff cannot claim any right over the properties standing in the name of the fifth defendant, viz., items 6 and 7 of ‘B’ schedule properties. 26. The learned Senior Counsel for the appellants in A.S.No.713 of 1984 also submitted that in respect of ‘A’ schedule property, excluding item 1, items 1 and 2 in ‘D’ schedule property, items 6 and 7 in ‘B’ schedule property, other properties were purchased by Ponnusamy Vanniar, as per Exs.B.88 to 101, and those properties were settled by Ponnusamy Vanniar on Gopalsamy Vanniar, under Ex.A.1. Therefore, those properties were separate properties in the hands of Gopalsamy Vanniar and the plaintiff miserably failed to prove that Ponnusamy Vanniar had ancestral nucleus and from and out of that income, he purchased the properties, which he settled on Gopalsamy Vanniar under Ex.A.1 and having regard to the specific recitals in Ex.A.1 that they were his separate properties and considering the year, in which, the document was executed, the Court ought to have accepted the statement made in the document and ought to have held that those properties were self acquired properties of Ponnusamy Vanniar, and therefore, he had every authority to settle those properties in favour of Gopalsamy Vanniar and under the settlement deed-Ex.A.1, Gopalsamy Vanniar got those properties and those properties were his self acquired properties and therefore, the plaintiff cannot claim any right over the same. 27. The learned Senior Counsel for the appellants in A.S.No.713 of 1984 also relied upon the following seven reported judgments in support of his case: i) in the case of C.N. Arunachala Mudaliar v.C.A.Muruganatha Mudaliar and Another AIR. 1953 SC 495 : (1953) 2 MLJ 796 ii) in the case of S.Parthasarathi v. Commissioner of Income – Tax, Madras AIR 1967 Mad 227 iii) in the case of Mudigowda Gowdappa Sankin v.Ramchandra Revgowda Sankh (dead) rep. 1953 SC 495 : (1953) 2 MLJ 796 ii) in the case of S.Parthasarathi v. Commissioner of Income – Tax, Madras AIR 1967 Mad 227 iii) in the case of Mudigowda Gowdappa Sankin v.Ramchandra Revgowda Sankh (dead) rep. by his lrs and Another AIR 1969 SC 1076 iv) in the case of K. Krishnamurthy v. S.Venugopal and 13 Others (1996) 1 L.W. 663 : v) in the case of V. Dhanalakshmi and Others v.Sasikala and Others: (2008) 8 MLJ 113 vi) in the case of K.V. Ramasamy and Another v.. K.V.Rahgavan and Others : (2010) 1 MLJ 1019 and vii) in the case of Sri Chandru v.. K. Nagarajan and Others (2012) 2 (LW) 326 : 28. The learned Senior Counsel for the appellants in A.S.No.713 of 1984 further submitted that Cross Objection was filed by the first defendant in O.S.No.71 of 1979 in respect of items 1 and 2 of ‘A’ schedule property. Having regard to the nature of properties mentioned in items 1 and 2 of ‘A’ schedule property, the Court ought to have held that those properties are not the ancestral properties and the Trial Court rightly dismissed the suit in respect of first item of ‘A’ schedule property, but it failed to appreciate that the second item of ‘A’ schedule property is a leasehold property, and therefore, decree of partition cannot be passed in respect of those properties, as the family was not in possession of that properties, and therefore, the Cross Objection is also liable to be dismissed. 29. Mr. R.N. Kothandaraman, the learned counsel for the first respondent-G.Shanmugam in A.S.No.713 of 1984/appellant in A.S.No.367 of 1986 contended that the Trial Court rightly came to the conclusion that the properties were ancestral properties in the hands of Gopalsamy Vanniar and having found that the properties were the ancestral properties in the hands of Gopalsamy Vanniar, ought to have decreed the suit, as prayed for, and ought not to have excluded certain properties from the decree. The learned counsel also submitted that though items 6 and 7 of ‘B’ schedule property were purchased in the name of the fifth defendant, no acceptable evidence was produced by her to the effect that she was having independent income to purchase those properties, and therefore, having regard to the fact that the joint family possessed of vast extent of properties and having failed to prove that she was having separate income, the Court ought to have held that those properties also belonged to the joint family and liable for partition. The learned counsel, therefore, submitted that the findings of the Trial Court that items 6 and 7 of ‘B’ schedule property are separate properties of the fifth defendant, are liable to be set aside. 30. The learned counsel for the first respondent in A.S.No.713 of 1984 also submitted that though items 1 and 2 of ‘D’ schedule properties are leasehold properties, they were enjoyed in common by the joint family members and those properties are also heritable and the Trial Court ought to have granted decree in respect of those properties too. The learned counsel further submitted that evidence was adduced by the plaintiff-G.Shanmugam in respect of the properties mentioned in schedules ‘E’ to ‘I’, and having regard to the vast extent of properties owned by the family, the Court ought to have taken due notice of various items of properties in schedules ‘E’ to ‘I’ and ought to have held that those properties also belonged to the joint family and ought to have granted preliminary decree in respect of those properties too. 31. The learned counsel appearing for the second and third respondents Durai in A.S.No.713 of 1984 also adopted the arguments of the first respondent in A.S.No.713 of 1984 and prayed that A.S.No.713 of 1984 has to be dismissed and A.S.No.367 of 1986 has to be allowed. 32. The learned counsel appearing for the cross-objector has submitted that the Trial Court erred in holding that items 1 and 2 of ‘A’ schedule properties did not belong to the family. Item 2 of ‘A’ schedule property is a leasehold property in possession of the cross-objector, and leasehold properties are also heritable properties and are available for partition. 33. 32. The learned counsel appearing for the cross-objector has submitted that the Trial Court erred in holding that items 1 and 2 of ‘A’ schedule properties did not belong to the family. Item 2 of ‘A’ schedule property is a leasehold property in possession of the cross-objector, and leasehold properties are also heritable properties and are available for partition. 33. On the basis of the above submissions, the following points for consideration arise in these Appeals : i) Whether the suit properties were ancestral properties of Gopalsamy Vanniar, or, were his separate properties ? ii) Whether items 1 and 2 of ‘A’ schedule properties did not belong to the joint family, as held by the Trial Court ? and iii) Whether items 6 and 7 of ‘B’ schedule property were separate properties of Thangammal, the widow of Gopalsamy Vanniar? 34. It is admitted that the plaintiff and the defendants 1 to 4 in O.S.No.71 of 1979 are the sons of Gopalsamy Vanniar, the fifth defendant is widow of Gopalsamy Vanniar, the defendants 6 to 8 are his daughters, and the defendants 9 to 12 are the tenants. It is the specific case of the plaintiff in O.S.No.71 of 1979 that the suit properties were ancestral properties in the hands of Gopalsamy Vanniar. Gopalsamy’s father was Ponnusamy Vanniar and he had three sons, viz.,Gopalsamy Vanniar, Kandasamy and Loganathan. Ponnusamy Vanniar had ancestral properties, as evidenced by Exs.A.3, A.4 and A.15. Ponnusamy Vanniar was doing flower business and his son-Gopalsamy Vanniar helped him and by reason of the joint exertion, all other properties were purchased. Therefore, the properties were ancestral properties in the hands of Gopalsamy Vanniar. 35. Therefore, we will have to find out whether Ponnusamy Vanniar had ancestral properties in his hands, if so, whether those properties provided source for purchase of other properties, viz., the suit properties. 36. As a matter of fact, the Hon’ble Division Bench of this Court, while hearing the Appeals against the decree passed in O.S.No.71 of 1979, framed the following questions and directed the parties to lead evidence to clarify those questions, by remanding the case to the Trial Court for recording evidence in respect of those questions : “(1) The properties if any, owned by Arunachala Vanniar, in Chozhanidhi Village, or, in any other place ? (2) The year, in which, Ponnusamy Vanniar moved and settled in Sundaravilagam Village? (2) The year, in which, Ponnusamy Vanniar moved and settled in Sundaravilagam Village? (3) What was the source for Ponnusamy Vanniar, who was just 20 years old in 1901 to purchase the property under Ex.B.51 dated 2.5.1901 ? (4) The dates of purchase of various plaint schedule properties. Documents in respect of plaint scheduled immovable properties should be produced by both parties. (5) Witnesses, if any, to speak about the claim of the appellants/defendants that the property was in fact purchased by Gopalsamy Vanniar in the name of Ponnusamy Vanniar.” 37. As per the direction issued by the Hon’ble Division Bench, the witnesses were examined, viz., P.W.1, D.W.1, D.W.6 and D.W.7 to lead evidence in respect of above quoted five questions and Ex.A.17 and B.74 to B.103 were marked. The plaintiff-G.Shanmugam examined himself as P.W.1 and he made it clear that he had no personal knowledge about the properties acquired by Ponnusamy Vanniar. The plaintiff deposed that his father-Gopalsamy Vanniar was helping his father-Ponnusamy Vanniar, (grandfather of the plaintiff). Ponnusamy Vanniar hailed from Chozhanidhi Village and he had some properties and after selling those properties, he settled at Vijayapuram and purchased some properties. After remand by this Court, the plaintiff deposed that his great grandfather-Arunachala Vanniar was an agriculturist, he was also a Mason and was having house and land at Chozhanidhi Village. The said properties were sold under Ex.A.15, dated 20.10.1937 by Ponnusamy Vanniar to Kuppusamy Vanniar, and that was attested by his father-Arunachala Vanniar. Arunachala Vanniar and Ponnusamy Vanniar migrated to Sundaravilagam Village in the year 1898 and out of their self exertions, the property was purchased in the name of Ponnusamy Vanniar from Kannamal, under Ex.B.51 in the year 1901. 38. The plaintiff further deposed that under Ex.A.15, his grandfather-Ponnusamy Vanniar sold the property situate at Manarkudi Taluk, Chozhanidhi Village in favour of Kuppusamy Vanniar. In that document, Ponnusamy Vanniar specifically mentioned that the properties were his ancestral properties. The plaintiff also stated that the properties purchased under Ex.B.51 were sold under Ex.A.3 and a sale consideration of Rs.3,200/- was received and from and out of the sale consideration, Ex.A.4 mortgage deed was created in favour of Ponnusamy Vanniar. Therefore, the properties are ancestral properties. In that document, Ponnusamy Vanniar specifically mentioned that the properties were his ancestral properties. The plaintiff also stated that the properties purchased under Ex.B.51 were sold under Ex.A.3 and a sale consideration of Rs.3,200/- was received and from and out of the sale consideration, Ex.A.4 mortgage deed was created in favour of Ponnusamy Vanniar. Therefore, the properties are ancestral properties. The plaintiff also admitted that his father-Gopalsamy Vanniar purchased a property, comprised in S.No.28/60, having 14 cents in Sundaravilagam Village and under Ex.A.2, his uncle Loganathan relinquished certain properties in favour of his father-Gopalsamy Vanniar. Plaintiff also pleaded ignorance whether item 2 of ‘A’ schedule properties were leasehold properties and whether those properties were given back to the Temple. 39. The plaintiff also stated that except the property purchased under Ex.A.17, all other properties were purchased in the name of Ponnusamy Vanniar, who was his grandfather. He was born in the year, 1938 and he also admitted that he has no objection in respect of Ex.A.1 and he was instrumental in executing Ex.A.1, when he was examined in the first instance. The defendants 1 to 3 re-examined themselves as D.W.1, D.W.7 and D.W.6 and marked Exs.B.74 to B.103. 40. It is seen from Exs.A.3, A.4 and A.15 that Ponnusamy Vanniar had ancestral properties and he sold those properties under Exs.A.3, A.4, and A.15. The sale consideration under Ex.A.3 is Rs.3,200/- and that property was purchased under Ex.B.51 and the sale under Ex.A.3 was for the purpose of obtaining a mortgage from Rehman Rawthar, as evidenced by Ex.A.4. Ex.A.15 property was sold for a sum of Rs.100/-. Ex.A.3 is dated 1.3.1922, Ex.A.4 is dated 1.3.1922 and Ex.A.15 is dated 20.10.1937. Therefore, earlier to October, 1937, the properties were sold by Ponnusamy Vanniar. Even assuming that those properties were ancestral properties in the hands of Ponnusamy Vanniar, those properties were sold in the year, 1937 itself and the properties purchased by Ponnusamy Vanniar under the sale deeds, viz., Exs.B.87 to 89, 93 , 97, 99, 101 and 103 were from the year, 1914 to 1960. Ex.B.87, is dated 27.3.1914, Ex.B.88, is dated 06.09.1920, Ex.B.89, is dated 04.08.1934, Ex.B.93, is dated 2.6.1960, Ex.B.97, is dated 13.11.1946, Ex.B.99, is dated 5.12.1936, Ex.101, is dated 7.12.1942 and Ex.B.103 is dated 23.08.1934. Ex.B.87, is dated 27.3.1914, Ex.B.88, is dated 06.09.1920, Ex.B.89, is dated 04.08.1934, Ex.B.93, is dated 2.6.1960, Ex.B.97, is dated 13.11.1946, Ex.B.99, is dated 5.12.1936, Ex.101, is dated 7.12.1942 and Ex.B.103 is dated 23.08.1934. Therefore, having regard to the purchase from 1914, 1920, 1934, 1936 to 1960, no proof was adduced by the plaintiff to prove that those properties were purchased from and out of the income from the ancestral nucleus, viz.,Exs.B.51 and A.15. 41. As already stated above, Ex.B.51 was purchased in the year 1901 and sold under Ex.A.3 in the year 1922 for a sum of Rs.3,200/-. Out of Rs.3,200/-, Rs.2,000/- was used for obtaining mortgage from Rehman Rawthar and Rs.1,200/- was utilized for marriage expenses of the son of Ponnusamy Vanniar, and under Ex.A.15, the property was sold for a sum of Rs.100/- for family benefits. Therefore, the property purchased under Ex.B.51 was sold under Ex.A.3 for meeting the marriage expenses and to advance the loan, and the property under Ex.A.15 was sold for a sum of Rs.100 for family benefits. Therefore, even assuming that those properties were ancestral properties, they were sold for family necessities. Further, no evidence was adduced to the effect that those properties generated income and from that income, other properties were purchased. Therefore, the case of the plaintiff that the family of Ponnusamy Vanniar owned ancestral properties and from and out of the income obtained from ancestral properties, other properties were purchased, cannot be accepted. 42. In this connection, this Court is of the view that it would be quite apposite to mention the law on this aspect. The Hon’ble Supreme Court, in the judgment reported inMudigowda Gowdappa Sankin v. Ramchandra Revgowda Sankh (dead) rep. by his lrs and Another (supra) held as follows: “There is no presumption that a Hindu family merely because it is joint, possesses any joint property. 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. 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. 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. 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.” 43. In the judgment reported in K.V. Ramasamy and Another v. K.V. Rahgavan and Others (supra) it is held as follows: “Para No.34, From the conjoint reading of the decisions referred to supra, the following aspects can be culled out easily: a) The joint family nucleus must have left sufficient surplus income so as to enable acquisition. b) Initially, burden lies upon a member, who alleges that a particular property is a joint family property to the extent that the alleged joint family nucleus must have left sufficient surplus income and by utilizing the same, the property in question could have been acquired. c) If the initial burden as referred to above is proved, then the burden shifts to the member of the joint family setting up claim that it is his personal property and the same has been acquired without any assistance from the joint family property. d) Failure to prove existence of nucleus, the inevitable presumption is that the acquisition in question is nothing but self acquisition. e) Mere fact of existence of a joint family does not lead to presumption that a property held by any of its member is joint family property unless the above aspects are proved. and f) If the property acquired is standing in the name of the female member of a joint family, she need not prove as to how she acquired it.” 44. and f) If the property acquired is standing in the name of the female member of a joint family, she need not prove as to how she acquired it.” 44. In the judgment reported in the matter of Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379 , the Hon’ble Supreme Court held that existence of a joint family does not lead to the presumption that the 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 having possessed some joint family properties 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. 45. In the judgment reported in the matter of Muniappa Naicker v. Balakrishna Naicker (1998) 2 L.W. 388 : (1998) 2 MLJ 388 in this Court held that nucleus must have left sufficient surplus income to enable acquisition. If a member proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shits to the member of the family setting up claim that it is his personal property to establish that the said property has been acquired without any assistance from joint family property. 46. In the judgment reported in the matter of Sri Chandru v.K.Nagarajan and Others (2012) 2 L.W. 326 : in this Court held that mere existence of nucleus alone is not enough to hold that the acquisitions were made utilizing the income from nucleus, when there is no evidence as to the existence of nucleus and the income derived from such nucleus, it cannot be stated that the properties were purchased from and out of the income from the nucleus. 47. Therefore, eventhough an attempt was made by the plaintiff to prove that the family was having some nucleus, as evidenced by Exs.B.51 and A.15, no evidence was let in to prove that those nucleus provided income for the purchase of other properties. Admittedly, Ponnusamy Vanniar was doing flower business and he was assisted by the plaintiff’s father-Gopalsamy Vanniar. Therefore, it cannot be claimed that the properties were ancestral properties in the hands of Ponnusamy Vanniar. Admittedly, Ponnusamy Vanniar was doing flower business and he was assisted by the plaintiff’s father-Gopalsamy Vanniar. Therefore, it cannot be claimed that the properties were ancestral properties in the hands of Ponnusamy Vanniar. Further, the property purchased under Ex.B.51 was sold under Ex.A.3 to meet the marriage expenses and some amount was utilized for obtaining mortgage and the property purchased under Ex.A.15 was sold for family benefits. Therefore, those sales are binding on the sons and the same cannot be questioned and the treatment of the properties purchased in the name of Gopalsamy Vanniar by Ponnusamy Vanniar would also prove that the suit properties were treated as his separate properties and not as ancestral properties. Ex.A.1 is the settlement deed executed by Ponnusamy Vanniar in favour of his son-Gopalsamy Vanniar, wherein, Ponnusamy Vanniar has clearly stated that the properties were his separate properties and no one has got right over those properties and out of affection, he settled those properties in favour of Gopalsamy Vanniar, viz., the father of the plaintiff and the defendants 1 to 4. 48. Therefore, the recitals in Ex.A.1 would make it clear that the properties were self acquired properties of Ponnusamy Vanniar. As a matter of fact, P.W.1 also admitted that he stood by Ex.A.1, and he was aware of the execution of Ex.A.1 dated 14.11.1959. Under Ex.B.21, Gopalsamy Vanniar settled some of the properties, he got under Ex.A.1 from his father in favour of the defendants 3 and 4. It is specifically stated that the properties settled under Ex.B.21 were the properties he got under Ex.A.1 and also the properties he purchased under the sale deed, dated 28.06.1960. Under Ex.B.2, Gopalsamy Vanniar settled some properties he got under Ex.A.1 in favour of the first defendant out of love and affection. Under Ex.B.50 dated 20.02.1978, he settled remaining properties in favour of the second defendant. 49. Therefore, under Exs.B.21, B.2 & B.50, Gopalsamy Vanniar settled all the properties he got under Ex.A1, in favour of the defendants 1 to 4. As a matter of fact, in Ex.B.21, Gopalsamy Vanniar has stated the reason for giving the properties to the defendants 3 and 4 that they were unmarried at that time. 49. Therefore, under Exs.B.21, B.2 & B.50, Gopalsamy Vanniar settled all the properties he got under Ex.A1, in favour of the defendants 1 to 4. As a matter of fact, in Ex.B.21, Gopalsamy Vanniar has stated the reason for giving the properties to the defendants 3 and 4 that they were unmarried at that time. In Ex.B.2, he has stated that his sons G.Shanmugam and Durai,viz., the plaintiff and the second defendant were well off, and therefore, no properties were given to them and the first defendant was having four daughters and a son, hence, the properties were given to him. Under Ex.B.50, out of love and affection, Gopalsamy Vanniar settled the properties to the second defendant. As already stated, while executing Ex.A1, the settlement deed, Ponnusamy Vanniar made it clear that the properties were his self acquired properties, and no one had any right over the same. Further, there is no evidence to show that Ponnusamy Vanniar purchased the properties which he settled under Ex.A.1, from and out of the income from the joint family business. 50. Therefore, having regard to the recitals in Ex.A.1, it is clear that the properties settled under Ex.A.1, were self acquired properties of Ponnusamy Vanniar, and when Ponnusamy Vanniar settled those properties to Gopalsamy Vanniar, under Ex.A.1, Gopalsamy Vanniar retained those properties as his self acquired properties, and, it would not become ancestral properties in the hands of Gopalsamy Vanniar. This position is made clear in the judgment reported in the matter of C.N. Arunachala Mudaliar v. C.A.Muruganatha Mudaliar and Another AIR 1953 SC 495 : 2 MLJ 796 (SC) in wherein, the Hon’ble Supreme Court held that a Mitakshara father has absolute right of disposition over his self acquired property, and no exception can be taken by his male descendants and, it is not possible to hold that such property bequeathed or gifted to a son must necessarily be treated as ancestral property in the hands of donee, in which, his sons would acquire co-ordinate interest. 51. Therefore, when Gopalsamy Vanniar got the properties under Ex.A.1, those properties became his self acquired properties and he got every right to settle those properties in favour of any one of his sons and under Ex.B.21 B.2 and B.50, he settled those properties in favour of the defendants 3 and 4, and 1 and 2, respectively. 51. Therefore, when Gopalsamy Vanniar got the properties under Ex.A.1, those properties became his self acquired properties and he got every right to settle those properties in favour of any one of his sons and under Ex.B.21 B.2 and B.50, he settled those properties in favour of the defendants 3 and 4, and 1 and 2, respectively. If we look at the source for the purchase of A, B and C schedule properties, it would be made clear that those properties were the subject matter of Ex.A.1. First item of ‘A’ schedule property is comprised in item 26 of Ex.A.1. In respect of ‘B’ schedule property, item 1 is comprised in item 25 of Ex.A.1, properties in item 2 are comprised in items 24, 7, 8 10, 13, 9, 14 15, 11, 12, 16 and 17 of Ex.A.1, item 3 is comprised in items 18 and 19 of Ex.A.1, item 4 is comprised in item 20 of Ex.A.1 and item 5 is comprised in items 21 and 22 of Ex.A.1. Items 6 and 7 of ‘B’ schedule property were purchased in the name of Thangammal, of which, I shall deal later. 52. Similarly, in respect of ‘C’ schedule property, item 1 is comprised in fourth item of Ex.A.2, item 2 is second item of Ex.A.1, item 3 is third item of Ex.A.1, item 4 is sixth item of Ex.A.1, item 5 is fifth item of Ex.A.1, item 7 is seventh item of Ex.A.1 and item 13 is first item of Ex.A1. C schedule items 6, 8 to 12 are covered in Ex.A.2, the exchange deed between Gopalsamy Vanniar and his brother-Loganathan. ‘D’ schedule items 1 and 2 are the temple properties. Therefore, ‘D’ schedule properties are not covered under Ex.A.1. Most of ‘C’ schedule properties are also covered in Ex.A.1 and some properties are covered under Ex.A2, the exchange deed between Gopalsamy Vanniar and Loganathan. Therefore, when Gopalsamy Vanniar settled the properties, he got under Ex.A.1, which were his separate properties, the same cannot be questioned by his sons. 53. Further, P.W.1 also admitted that he was aware of Ex.A.1 and therefore, he cannot question the same after twenty years. Therefore, when Gopalsamy Vanniar settled the properties, he got under Ex.A.1, which were his separate properties, the same cannot be questioned by his sons. 53. Further, P.W.1 also admitted that he was aware of Ex.A.1 and therefore, he cannot question the same after twenty years. In respect of the properties covered under ExA.2 also,viz., the exchange deed between Gopalsamy Vanniar and Loganathan, it cannot be contended that those properties must be the ancestral properties in the hands of Gopalsamy Vanniar, as he got the same in exchange with his brother. Admittedly, Loganathan was the owner of the properties and he released those properties in favour of Gopalsamy Vanniar. Therefore, when Gopalsamy Vanniar got those properties under the release deed, from his brother, those properties became his self acquired properties and they cannot be treated as ancestral properties. These aspects were not properly considered by the Trial Court and the Trial Court erroneously held that Exs.B.21, B.2 and B.50 were family arrangements and properties were the ancestral properties in the hands of Gopalsamy Vanniar, and therefore, the plaintiff can challenge the same and is entitled to claim share in those properties. 54. Further, in the judgment reported in the matter of K.Krishnamurthy v. S.Venugopal and 13 Others, (1996) 1 L.W. 663 : it is held that in the case of joint labour, or joint exertion, the plaintiff will have to substantiate as to what is the nature of the contribution done by him for the family and when there is no evidence to that effect, it cannot be held that the properties were purchased out of the joint exertion of the members of the joint family. In the said judgment, reference was made to the judgments reported in the matter of G. Narayana Raju (dead) by his Lrs v. G.Chamaraju and Others (1968) II S.C.W. 4 895 : AIR 1968 SC 1276 : and in the matter of R. Selvaraj v. V. Radhakrishna Pillai 89 L.W.19 S.N. : (1976) 1 MLJ 105 wherein, it is held that there is no presumption under Hindu law that a business standing in the name of any member of the joint family, is a joint family business, even if that member is the manager of the joint family. The contribution of labour, service or money, by one member of the joint family to the other member, should be so conspicuous and impressive that on a prima facie examination of such material, a reasonable and prudent person should gain the impression that the two members were so associated with the common object of exploiting a commercial activity to the advantage of the joint family as a whole and in general. In the absence of such essential features, it is hazardous to infer that such unisoned activity between the members would be equated to a co-ordinated activity on their part equatable to the activity of members of a Hindu joint family, resulting in the properties acquired by such common exertions joint family properties. 55. For the reasons stated herein above, I hold that the properties covered in A, B and C schedule were self-acquired properties of Gopalsamy Vanniar, and he was competent to execute the settlement deeds in respect of those properties in favour of his sons. P.W.1 was also aware of the settlement deed executed by Ponnusamy Vanniar in favour of Gopalsamy Vanniar, and therefore, it is not open to him to challenge the same after twenty years by contending that those properties are joint family properties. Hence, Point No.i is answered in favour of the appellants in A.S.No.713 of 1984 and against the plaintiff-G.Shanmugam. 56. The Trial Court excluded item 1 of ‘A’ schedule, items 6 and 7 of ‘B schedule, items 1 and 2 of ‘D’ schedule and ‘schedules E to I from partition. As stated supra, item 1 of ‘A’ schedule is comprised in ExA.1 as item 26, and, it has been held that the properties covered in ExA.1 were self acquired properties of Gopalsamy Vanniar, and that property, viz., item 1 of ‘A’ schedule was settled under Ex.B.50 in favour of the second defendant. Admittedly, second item of ‘A’ schedule, is a leasehold property and, it is the case of the defendants that after the death of Gopalsamy Vanniar, the property was surrendered and they got back the property in their individual name and hence, item 2 of ‘A’ schedule is also not available for partition. 57. Admittedly, second item of ‘A’ schedule, is a leasehold property and, it is the case of the defendants that after the death of Gopalsamy Vanniar, the property was surrendered and they got back the property in their individual name and hence, item 2 of ‘A’ schedule is also not available for partition. 57. Similarly, item 1 and 2 of ‘D’ schedule are also temple properties and they are enjoyed by family members by contributing their physical pain, and therefore, those properties were also rightly excluded from partition by the Trial Court and I do not find any interference in that aspect. 58. Insofar as Items 6 and 7 of ‘B’ schedule properties are concerned, admittedly, those properties were purchased in the name of the mother-Thangammal under Ex.B.23 dated 12.8.1953. It is held in the judgment reported in K.V.Ramasamy and Another v. K.V. Rahgavan and Others (supra)that if the properties are standing in the name of female member of Hindu joint family, it cannot be treated as joint family properties, and the female member need not prove as to how she acquired it. Similar view was expressed by the Hon’ble Division Bench of this Court in the judgment reported in the matter of Nagayasami Naidu and Others v. Kochadai Naidu and Others (supra). In this case, the mother-Thangammal examined herself as D.W.4 and let in evidence about the source of income. She has stated that her mother gave Rs.5,000/- for purchasing the property in Ex.B.23 and she sold the same to one Rajagopalan Iyengar and from the consideration she received, she purchased items 6 and 7 of ‘B’ schedule property. She also produced house tax receipts-Exs.B.25 to B.43 in respect of those properties and also deposed evidence that Gopalsamy Vanniar executed the sale deed bequeathing certain properties in her favour and hence, those properties must also be excluded from partition. 59. Therefore, having regard to the law laid down in the judgments reported in Nagayasami Naidu and Others v.Kochadai Naidu and Others (supra) and K.V. Ramasamy and Another v. K.V. Rahgavan and Others (supra), the plaintiff cannot claim any right over items 6 and 7 of ‘B’ schedule property and the Trial Court rightly excluded those properties from partition and I do not find any reasons to interfere with such findings. The Trial Court also rightly held that the Will, dated 12.03.1978 executed by Gopalsamy Vanniar and the settlement deeds are true documents. Nevertheless, the Trial Court held that those properties were ancestral properties, and therefore, the defendants cannot claim any right in respect of the properties covered under Exs.B.21, B.2 and B.50. As a matter of fact, under Exs.B.22, viz., the Will, 10 cents in item 6 and 7 cents in item 13 of ‘C’ schedule property were bequeathed to the mother/Thangammal. It is also proved that items 1 and 2 of ‘D’ schedule were given to the defendants 1, 3 and 4 by Devasthanam. Considering all these aspects I hold that item 2 of ‘A’ schedule, and items 1 and 2 of ‘D’ schedule property cannot be the joint family properties and those properties belonged to Devasthanam and the defendants got those properties on lease from Devasthanam. Therefore, the plaintiff is not entitled to claim partition in respect of those properties. 60. Similarly, items 6 and 7 of ‘B’ schedule property are the properties belonged to the mother and she had proved the means and even in the absence of any means by her, having regard to the fact that the properties were purchased in her name and when there is no joint family, it is to be held that those properties are self acquired properties of Thangammal and the plaintiff cannot claim any share in respect of those properties too. Therefore, point Nos.ii and iii are also answered in favour of the appellants in A.S.No.713 of 1984 and against the plaintiff. 61. In the result, A.S.No.713 of 1984 is allowed, A.S.No.367 of 1986 is dismissed and the Cross Objection in A.S.No.713 of 1984 is also dismissed, having regard to the fact that A.S.No.713 of 1984 is allowed. Consequently, the suit for partition in O.S.No.71 of 1979 fails and the plaintiff is not entitled to any decree prayed for and the suit in O.S.No.71 of 1979 is dismissed. No costs. Order Accordingly.