JUDGMENT 1. The plaintiff in O.S.No.300 of 1991 on the file of the Additional Subordinate Court, Mayiladuthurai is the appellant in A.S.No.176 of 1998 and the first defendant in the said suit is the appellant in A.S.No.673 of 1998. 2. O.S.No.300 of 1991 was filed by the plaintiff for partition of her 1/3 share in the suit properties. The case of the plaintiff is that all the suit properties originally belonged to Arunachalam Pillai, the maternal grandfather of the plaintiff and the defendants 1 and 2. The defendants 1 and 2 are the brothers of the plaintiff. Their father Rajamanickam Pillai deserted the plaintiff’s mother, who was the only daughter of Arunachalam Pillai and therefore, the plaintiff, the defendants 1 and 2 and their mother were taken care of by the maternal grandfather Arunachalam Pillai. They were brought up by Arunachalam Pillai. 3. The said Arunachalam Pillai was a native of Kuttalam, Mayiladuthurai Taluk and he was an agriculturist. He was owning immovable properties, house, nanja and punja lands at Kuttalam. Originally, he was the agent in the estate of C. Marudavanam Pillai of Menankudi, Nannilam Taluk. He sold his properties at Kuttalam and purchased nanja punja lands at Eduthukkatti Sathanur village and near to Kaduvankudi for his benefit and that of his wife and grandchildren/the plaintiff and the defendants 1 and 2. 4. The A and B schedule properties were purchased by Arunachalam Pillai in his name and he purchased C and D schedule properties in the name of the second defendant and therefore all the suit schedule properties of A to D were the properties of Arunachalam Pillai. The house was constructed in item 2 of B schedule property and therefore, it also belonged to the estate of Arunachalam Pillai. 5. The first defendant was working in the Judicial Department as Attender at Mayiladuthurai and the second defendant was not employed and the marriages of the plaintiff and the defendants 1 and 2 were celebrated by the grandfather. The house was constructed in item 2 of B schedule property and therefore, it also belonged to the estate of Arunachalam Pillai. 5. The first defendant was working in the Judicial Department as Attender at Mayiladuthurai and the second defendant was not employed and the marriages of the plaintiff and the defendants 1 and 2 were celebrated by the grandfather. The grandfather also provided funds to the defendants 1 and 2 to start two circulation schemes in the name and style of Kalaimathi Saree Circulation and Kalaimathi Eversilver Circulation and the businesses were run by the second defendant and by the wife of the first defendant and both the business were treated as family businesses of Arunachalam Pillai and they were run by the family consisting of Arunachalam Pillai and three grandchildren. 6. The E schedule house was constructed in item 2 of B schedule property by Arunachalam Pillai out of his earnings and saved from agriculture income and also the income from the two circulation schemes and all the properties were enjoyed by Arunachalam Pillai as his own properties and he died on 14.11.1978 intestate leaving behind the plaintiff and the defendants 1 and 2 as the legal heirs to the estate of Arunachalam Pillai and also the properties mentioned in schedule A to E. Therefore the plaintiff is entitled 1/3 share in the suit properties. The first defendant is living in the A schedule house and the second defendant is living in the first floor of the building constructed and mentioned as E schedule property and there are three independent portions in the ground floor of the E schedule property and they are let out to the defendants 4 to 6. 7. After the death of Arunachalam Pillai, the defendants 1 and 2 had developed hostile attitude towards the plaintiff and stopped giving the plaintiff’s legitimate share from the income. The first and second defendants also sold 5 cents of lands in items 3 and 4 of B schedule properties and also sold the C schedule properties to the third defendant with ulterior motive. The defendants 1 and 2 also sold an extent of 3.21 acres in the D schedule properties to the 9th defendant and also entered into an agreement with the defendants 7 and 8 to sell the D schedule items 1 to 5, 7 and 8. The defendants 1 and 2 also sold an extent of 3.21 acres in the D schedule properties to the 9th defendant and also entered into an agreement with the defendants 7 and 8 to sell the D schedule items 1 to 5, 7 and 8. The defendants 3 and 7 to 9 are the purchasers and the defendants 4 to 6 are the tenants and therefore, they are impleaded as parties to the suit. As the plaintiff is entitled to 1/3 share, the suit was filed for partition of her 1/3 share. 8. The first defendant admitted the relationship between the plaintiff and the defendants 1 and 2 and also the averments that their father deserted their mother and the plaintiff and the defendants 1 and 2 were brought up by the maternal grandfather Arunachalam Pillai and also admitted that all the properties were purchased by Arunachalai Pillai. The two circulation schemes were also treated as family businesses and for the purpose of accounting, they were made in the individual names, but the income from those two schemes were treated as family income. Therefore, he admitted the case of the plaintiff and prayed for passing of a decree as claimed by the plaintiff. 9. The second defendant filed a statement admitting the relationship between the plaintiff and the defendants 1 and 2 and also the allegation that they were brought up by the maternal grandfather Arunachalam Pillai. But, he denied the allegations that Arunachalam Pillai was having properties at Kuttalam and he was appointed as an agent of Maruthavanam Pillai of Menangudi and he was getting good income. Arunachalam Pillai was not having any property at Kuttalam except a thatched house and he denied the allegations that he sold the properties at Kuttalam and purchased wet lands at Eduthukatti Sathanur which were also sold and from that amount, he purchased properties at Kaduvangudy. The second defendant admitted that A schedule property belonged to the grandfather Arunachalam Pillai and he was getting meagre earnings of about 3 kalams of paddy per month which was sufficient to maintain the family and the circulations schemes were started by the second defendant and the wife of the first defendant was also made a partner and the business flourished and thrived well till 1972. The first defendant also started independent circulation business in eversilver wares in the name of his wife and that was also doing well and income from those two circulations businesses were the separate income of wife of the first defendant and the second defendant and the said circulations businesses were not joint family business. B schedule properties were purchased by the second defendant from and out of income he got from the income from the circulation schemes, in the name of his grandfather Arunachalam Pillai and he also purchased C and D schedule properties and also built a house in item 2 of B schedule property and it is described as E schedule property and therefore, schedule B to E are the absolute properties of the second defendant and the plaintiff cannot have any right over the same. The second defendant also sold most of the C schedule properties to the third defendant and the same was not questioned by the plaintiff or by the first defendant. He also contended that C schedule properties were his separate properties. The first defendant purchased the properties over 20 acres in his name as well as in the name of his wife in Naduvakarai village and other places from 1966 to 1971 and those properties were also sold by the first defendant and those details were mentioned and the failure to include those properties in the plaint would also show that the plaintiff was set up by the first defendant to make claim over the second defendant’s separate properties. Therefore, the plaintiff cannot claim her share in the suit properties and the plaint has to be dismissed. 10. The third defendant filed a separate statement stating that items 4 and 5 of B schedule properties were purchased by the second defendant in the name of the grandfather and all other properties were purchased by the second defendant and that was not challenged for the past six years and the circulation schemes were not joint family businesses. He also contended that he is the bonafide purchaser and therefore, the suit for partition of properties purchased by the third defendant is not maintainable. 11. He also contended that he is the bonafide purchaser and therefore, the suit for partition of properties purchased by the third defendant is not maintainable. 11. The 8th defendant filed a separate statement stating that the second defendant was conducting Kalaimathi Sarees Circulation and out of that earnings, he purchased the properties mentioned in D schedule items 1 to 6 to an extent of 5.55-1/3 acres and the 8th defendant offered to purchase those properties and later purchased the same and therefore, those properties are not available for partition. 12. On the basis of the above pleadings, the trial Court framed the following issues. 1. Whether the plaintiff is not entitled to claim 1/3 share in the suit properties? 2. Whether the second defendant purchased the suit properties except A schedule property and whether those properties are his separate properties? 3. Whether the B schedule properties were purchased by Arunachalam Pillai from and out of his income? 4. To what reliefs the plaintiff is entitled? 13. On the side of the plaintiff, the plaintiff and the wife of the first defendant were examined as P.Ws.1 and 2 and 32 exhibits were marked on the side of the plaintiff. On the side of the defendants, defendants 1, 2, 3 and 8 were examined themselves as Dws.1, 2, 4 and 5 and one Rahamathullah was examined as D.W.3 and 25 exhibits were marked on the side of the defendants. 14. The trial Court considered the issues 2 and 3 and held that circulation businesses were not joint family businesses and they were separate businesses of the second defendant and the wife of the first defendant and Arunachalam Pillai was not having much income to purchase B schedule properties and the B schedule properties were purchased by the second defendant in the name of maternal grandfather Arunachalam Pillai and C and D schedule properties were purchased by the second defendant out of the income he earned from circulation schemes and therefore, B, C and D schedule properties are the separate properties of the second defendant. It also held that the house in E schedule property constructed on the second item of B schedule property is owned by the second defendant and the C schedule properties were sold by the defendants 1 and 2 and that was not objected to by the plaintiff and therefore, the trial Court held that B schedule properties are the separate properties of the second defendant and A schedule properties were purchased by Arunachalam Pillai in his name and the plaintiff, being a female heir is not entitled to claim partition of A schedule property, which is a residential house in the absence of any partition suit filed by male members and therefore under Section 23 of the Hindu Succession Act, the plaintiff is prevented from claiming partition in respect of A schedule property and held that the plaintiff is not entitled to the relief of 1/3 share of partition. 15. Aggrieved by the same, the plaintiff filed A.S.No.176 of 1998 and the first defendant filed A.S.No.673 of 1998. 16. Mr. T.P. Manohar, the learned counsel for the Appellant in A.S.No.176 of 1998 submitted that the trial Court having found that A schedule property was the absolute property of Arunachalam Pillai ought to have granted the relief of partition of 1/3 share to the plaintiff in the suit A schedule properties and erred in holding that the plaintiff being a female member is not entitled to claim partition in respect of residential house. He submitted that by reason of the Hindu Succession (Amendment) Act of 2005, Section 23 was deleted and therefore, as on date, a female member is also entitled to claim partition in respect of a dwelling house and therefore, in respect of A schedule property, the appeal is liable to be allowed and the plaintiff is entitled to decree of her 1/3 share in the A schedule property. 17. He also submitted that in respect of B schedule property also admittedly, those properties are in the name of Arunachalam Pillai and the trial Court erred in holding that Arunachalam Pillai was not having means to purchase those properties without properly appreciating Exs.A21 to 24 and Ex.B7. He submitted that A schedule property was purchased by Arunachalam Pillai under Ex.A12 in the year 1955. He submitted that A schedule property was purchased by Arunachalam Pillai under Ex.A12 in the year 1955. B schedule items 1 and 2 were purchased under Ex.A13 and B schedule items 3 and 4 were purchased under Ex.A14 and B schedule item 5 was purchased under Ex.A15 by Arunachalam Pillai in his name. He also submitted that under Ex.A21 Arunachalam Pillai purchased properties worth of Rs.9500/- in the year 1952 and under Ex.A22, he sold the properties for a sum of Rs.16,000/- situated in Eduthukatti Sathanur village, to an extent of 4.81.41 cent and under Ex.A23, he sold 6 acres 2-1/4 cent for a sum of Rs.16263/- in respect of the property situated in Keela kaduvangudy village, Nannilam Panchayat and under Ex.A24, he sold the properties for a consideration of Rs.2,000/- and under Ex.B7, he purchased the property in S.No.57/32 to an extent of 4 cent in the Kaduvangudy village for a sum of Rs.300/-. He therefore submitted that Exs.B7 and A12, A13, A14 and A21 would prove that Arunachalam Pillai was having properties and those properties, which were sold by him in the year 1940, 1952 under Exs.A22 and 24 and therefore, it cannot be contended that Arunachalam Pillai was not having any means to purchase properties mentioned in B schedule. He therefore submitted that the properties of B schedule must be treated as separate properties of Arunachalam Pillai, in which the plaintiff is entitled to 1/3 share and this aspect was not properly appreciated by the Court below. 18. He also submitted that the second defendant, who claimed to have purchased the property mentioned in C and D schedule, did not produce any evidence to prove that he was getting any income from the circulation schemes and even assuming that those two circulation schemes were run by the defendants 1 and 2, in the absence of any proof that they were getting any surplus income from that business, it cannot be contended that he contributed the sources for purchasing B schedule properties. He also submitted that in the absence of any proof of income by the second defendant, the second defendant cannot claim exclusive ownership in respect of C, D and E schedule properties and having regard to the properties owned by Arunachalam Pillai, C and D schedule properties also must have been purchased by Arunachalam Pillai in the name of the second defendant and those properties are also available for partition. 19. He also submitted that admittedly the house was constructed in the second item of B schedule property and therefore, it also belonged to Arunachalam Pillai in the absence of any proof of construction by the second defendant, the trial Court ought to have decreed as prayed for. 20. The appellant in A.S.No.673 of 1998 has virtually adopted the arguments of the appellant in A.S.No.176 of 1998 and submitted that the trial Court ought to have decreed the suit as prayed for. 21. On the other hand, Mr. T. Girish, the learned counsel appearing for the respondents 2 and 3 in both the appeals, who are the defendants 2 and 3 in the trial Court submitted that in respect of A schedule property is concerned, having regard to the Hindu Succession (Amendment) Act, 2005, the plaintiff is entitled to 1/3 share and therefore, the partition can be granted in respect of A schedule property by virtue of Hindu Succession (Amendment) Act, 2005. However, the learned counsel for the respondents 2 and 3 submitted that B, C and D schedule properties were purchased by the second defendant in his name and no evidence was let in by the plaintiff or by the first defendant to the effect that Arunachalam Pillai was earning good income and from and out of surplus income, he purchased those properties in the name of second defendant. 22. He also submitted that parties cannot be considered as joint family members and admittedly, the plaintiff and the defendants 1 and 2 are the maternal grandchildren of Arunachalam Pillai and even though they were brought up by Arunachalam Pillai, they would not become co-parcener and in the absence of any proof that the consideration was paid from the income earned by Arunachalam Pillai, it cannot be stated that the properties mentioned in C and D schedule properties in the name of the second defendant, belonged to the family of Arunachalam Pillai. He therefore submitted that the plaintiff cannot claim any right in the C and D schedule properties. 23. He also submitted that C schedule properties were sold to the third respondent and no objection was raised and C and D schedule properties were separate properties of the second defendant and hence, the trial Court rightly dismissed the suit in respect of C and D schedule properties. He also submitted that the trial Court correctly appreciated the evidence of P.W.1, wherein, P.W.1 has admitted that he was not having any personal knowledge about the income earned by Arunachalam Pillai and Aunachalam Pillai died in the year 1978 and suit was filed only in the year 1991 and she has not claimed any share in the income from the suit properties and she was also aware of the sale of C schedule properties by the second defendant and no objection was raised by her and she also admitted that for starting circulation business no substantial capital was necessary and considering all these aspects, the trial Court rightly dismissed the suit. 24. Based on the above submissions, the following points for consideration arise in these appeals. (i) Whether the properties mentioned in A and B schedule belonged to Arunachalam Pillai, in which the plaintiff is entitled to 1/3 share? (ii) Whether the properties mentioned in C and D schedule were the separate properties of the second defendant or whether those properties belonged to the estate of Arunachalam Pillai purchased in the name of the second defendant? (iii) Whether the second defendant is owner of the E schedule house? 25. Admittedly, A schedule property was purchased in the name of Arunachalam Pillai and both the parties admitted the same. The Trial Court dismissed the plaintiff’s claim for 1/3 share in A schedule property on the ground that A schedule property is a dwelling house and in the absence of any suit filed by male members, the female member viz. , the plaintiff was not entitled to claim partition of A schedule property. The Trial Court dismissed the plaintiff’s claim for 1/3 share in A schedule property on the ground that A schedule property is a dwelling house and in the absence of any suit filed by male members, the female member viz. , the plaintiff was not entitled to claim partition of A schedule property. However, as rightly contended by the learned counsel for the respondents 2 and 3 that after the enforcement of Hindu Succession (Amendment) Act, 2005, Section 23 of the Act, a female member is also entitled to claim share in the dwelling house even in the absence of any partition suit filed by male members and therefore, I held that the plaintiff is entitled to 1/3 share in the A schedule property. 26. Admittedly, B schedule properties are in the name of Arunachalam Pillai and it is the contention of the second defendant that he purchased those properties in the name of Arunachalam Pillai. The trial Court held that no proof was adduced by the plaintiff to the effect that Arunachalam Pillai was having separate income from other properties and the circulation businesses were giving good income and therefore, the properties purchased in the name of Arunachalam Pillai and described in B schedule properties were purchased by the second defendant in the name of Arunachalam Pillai. According to me, the finding of the trial Court in that regard cannot be accepted and it is a perverse finding. 27. As rightly contended by the learned counsel for the Appellant in A.s.No.176 of 1998, Arunachalam Pillai was the owner of properties as mentioned in Ex.A.12 to 14 and 21 and B7. He sold those properties under Exs.A22 to 24 and the said consideration are Rs.9600 and 16000 etc. and therefore, it cannot be contended that Arunachalam Pillai was not having any means to purchase B schedule properties. 28. However, no evidence was let in by the second defendant to prove that he was having surplus income from the circulation businesses and even according to the statement filed by the second defendant, his circulation business thrived well and flourished till 1972. 29. Except the bald allegations, no proof was adduced by the second defendant about the income he earned from the said businesses. 29. Except the bald allegations, no proof was adduced by the second defendant about the income he earned from the said businesses. Therefore, in the absence of any surplus income in the hands of the second defendant and having regard to Exs.A12, 13, 14, 21 and B7 and the properties sold by Arunachalam Pillai under Exs.A22 to 24, the trial Court ought to have held that Arunachalam Pillai was having means to purchase the properties mentioned in B schedule properties and ought to have held that B schedule properties were the separate properties of Arunachalam Pillai and therefore, I hold that B schedule properties were the separate properties of Arunachalam Pillai and therefore, the plaintiff is entitled to 1/3 share in A and B schedule properties and point for consideration No.1 is answered in favour of the plaintiff. 30. In respect of C and D schedule properties are concerned, admittedly, those properties are in the name of the second defendant and no evidence was let in by the plaintiff or the first defendant to the effect that those properties were purchased out of the surplus income in the hands of Arunachalam Pillai. As rightly submitted by the learned counsel for the respondents 2 and 3, Arunachalam Pillai and the defendants 1 and 2 were not members of a joint family as they are maternal grandsons of Arunachalam Pillai and therefore, any property purchased in the name of the second defendant must be presumed to be his separate property and it cannot be considered as the joint family properties of Arunachalam Pillai and the defendants 1 and 2. 31. Further, the circulation businesses were also not proved to be the joint family businesses and as evidenced by Exs.B1 and B3, circulation businesses were the separate businesses of the defendants 1 and 2 and admittedly, income was generated from circulation businesses and therefore, the second defendant must be having some money to purchase the property mentioned in C and D schedule properties. The second defendant also proved his income through Exs.A 26 to 32, the various tax assessment orders from the Commercial Tax Office and considering these aspects, the trial Court rightly held that the properties mentioned C and D schedule properties are the separate properties of the second defendant. The second defendant also proved his income through Exs.A 26 to 32, the various tax assessment orders from the Commercial Tax Office and considering these aspects, the trial Court rightly held that the properties mentioned C and D schedule properties are the separate properties of the second defendant. Further, even after the death of Arunachalam Pillai in the year 1978, no attempt was made by the first defendant to question the sales made by the second defendant in respect of C schedule properties and also in respect of D schedule properties in favour of the defendants 8 and 9. 32. Therefore, the trial Court rightly held that C and D schedule properties are the separate properties of the second defendant and the plaintiff cannot claim any share in those properties and I also held that C and D schedule properties are the properties purchased by the second defendant and neither the plaintiff nor the first defendant can claim any share in those properties. The point for consideration No.2 is answered against the appellant. 33. In respect of E schedule property, admittedly, it is a house constructed in the second item of B schedule property. I have already held that B schedule properties were the separate properties of Arunachalam Pillai and the plaintiff is entitled to 1/3 share in those properties. It is also admitted that the second defendant is residing in the upstairs portion of E schedule property and let out the ground floor portion to the defendants 4 to 6 and rents are also collected by him and no objection was raised by the plaintiff in respect of the income from the E schedule property. 34. No evidence was let in by the second defendant to prove that he constructed the house in E schedule property out of his own funds. I have already held that Arunachalam Pillai was having means to purchase B schedule properties and admittedly, E schedule house is constructed in the second item of B schedule property and in the absence of any proof that the construction was done by the second defendant out of his separate income, it cannot be contended that the E schedule property was constructed by the second defendant out of his personal income and it did not belong to the estate of Arunachalam Pillai. As the land in which building was constructed belonged to Arunachalam Pillai and the failure on the part of the second defendant to prove that he constructed the building, it has to be presumed that E schedule property also belonged to the estate of Arunachalam Pillai and therefore, the plaintiff is entitled to claim share in the E schedule property. Therefore, the point for consideration No.3 is answered in favour of the appellant. 35. In the result, the judgment and decree of the trial Court is partially set aside and the plaintiff is entitled to 1/3 share in the A, B and E schedule properties and in respect of C and D schedule properties, the judgment and decree of the trial Court are confirmed. Accordingly, the appeal is partly allowed. No costs. Consequently, connected C.M.P.No.11949 of 2010 is closed. 36. C.M.P. No. 768 of 2013: This is an application to mark two sale deeds in the name of the second defendant to prove that he purchased 12 cents in S.No.57/34 in Agarakaruvangudi village. Admittedly, second item of B schedule property is in S.No.57/34 having an extent of 8 cents and it is the case of second defendant during trial that E schedule property was constructed by him in the second item of B schedule property. The additional documents filed by the second defendant will only prove that he purchased 12 cents in S.No.54/37 in Agarakaruvangudi village and those properties are not subject matter of the suit. Hence, no purpose would be achieved by marking the additional documents. Therefore, C.M.P.No.768 of 2013 is dismissed. No costs. Appeal partly allowed.