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2015 DIGILAW 2110 (MAD)

Vijayalakshmi v. A. Govindasamy

2015-04-30

T.MATHIVANAN

body2015
JUDGMENT This regular appeal is directed against the judgment and decree, dated 16.11.2006 and made in O.S.No.31 of 2004 on the file of the learned Additional District Judge, (Fast Track Court No.2), Salem. 2. This present appeal has been preferred by the appellants/plaintiffs challenging the dismissal of the suit in respect of item No.2, whereas the cross objection has been filed by the first respondent/first defendant impugning the preliminary decree in respect of first item of the suit properties inclusive of the properties sold to the defendants 3 to 7. 3. For easy reference as well as for the sake of convenience, the character of the parties to the suit may hereinafter be referred to as it is in the suit. CASE OF THE PLAINTIFFS:- 4. Plaintiffs 1 and 2 and the second defendant are the daughters of the first defendant. The second defendant is the elder sister of the plaintiffs 1 and 2. The plaintiffs have filed the above suit against the defendants seeking the following reliefs:- a. To grant a preliminary decree in favour of the plaintiffs directing the defendants to divide the suit properties into four equal shares and to allot two such separate shares to the plaintiffs and in case of failure to appoint a commissioner to divide the suit properties into four equal shares and allot two such shares to the plaintiffs and to pass a final decree in their favour. b. To grant permanent injunction in favour of the plaintiffs restraining the defendants and their agents from in any manner alienating or encumbering the suit properties till the final decree is passed. c. To award the costs of the suit. 5. The marriages of the plaintiffs and the second defendant took place after 1989 i.e., after the passing of the Hindu Succession (Tamil Nadu Amendment) Act. 6. The suit properties are the ancestral joint Hindu Family properties of the plaintiffs and the defendants 1 and 2. The first defendant's father, namely, Ammasi Gounder had the properties. He had two sons, namely, Perumal Gounder and the first defendant herein, who is none other than the father of the plaintiffs and the second defendant. There was a oral partition in the family in the year 1982. In pursuant to the said oral partition the suit properties were allotted to the share of the first defendant. He had two sons, namely, Perumal Gounder and the first defendant herein, who is none other than the father of the plaintiffs and the second defendant. There was a oral partition in the family in the year 1982. In pursuant to the said oral partition the suit properties were allotted to the share of the first defendant. From the date of the said oral partition, the defendants and the plaintiffs have been in joint possession and enjoyment of the properties. 7. After passing of the Hindu Succession Act, 1989 (Tamil Nadu Amendment Act) the plaintiffs and the second defendant are having equal share along with the first defendant. 8. The first defendant had worked as health supervisor in various places in Tamil Nadu and during the course of his employment, he had developed illicit intimacy with several ladies and also addicted to drinking habit. On account of these reasons, he had tendered his voluntary retirement from his service with effect from 31.3.2003. 9. In spite of repeated demands and convening of a panchayat in the village on 5.5.2003, the first defendant did not come forward to divide the properties amicably. Hence the present suit. 10. The second defendant has not chosen to file her written statement. Despite filing of written statement by the third defendant, he remained ex parte. The defendants 1 and 4 to 7 are the contesting defendants. Case of the first defendant:- 11. He (first defendant) being the kartha of the joint family, the loans were borrowed only for the benefit of the family and also for meeting the legal necessity of the family with the full knowledge of the plaintiffs and their mother. 12. He had also furnished the list of debtors in the written statement and claims that the plaintiffs are equally liable to discharge the debts. 13. He has contended that the first item of the suit property is his ancestral property as per the registered partition deed, dated 22.4.1974 and the partition was took place between him and his elder brother, his father and mother. In so far as the item No.2 is concerned, it was given to his father, Ammasi Gounder and his mother as their share. As per the recitals and the conditions stipulated therein and as per the intention and voluntary desire of his parents, after their life time, the second item should devolve on him by inheritance. In so far as the item No.2 is concerned, it was given to his father, Ammasi Gounder and his mother as their share. As per the recitals and the conditions stipulated therein and as per the intention and voluntary desire of his parents, after their life time, the second item should devolve on him by inheritance. His parents had died intestate about 17 years ago and as a result of which, the second item of the suit property was succeeded by him by way of succession and that the second item has become his exclusive property and therefore, his daughters viz., the plaintiffs and the second defendant are having no right in the second item and hence, it is not available for partition. It is absolutely a misnomer to call it as a joint family property. 14. The plaintiffs had never been in joint possession thereof. a. The land measuring 1.15 acres in the first item of the suit property comprised in S.No.54/1B and, b. Another piece of land measuring 2 acres and 0.9 cents in the second item of the suit property comprised in S.No.54/1A, 2B were sold under four separate sale deeds, dated 27.11.2000, 28.5.2001, 11.7.2001 and 17.7.2002 respectively for a total sale price of Rs.2,13,000/- to different persons. The above alienations are binding on the plaintiffs and the second defendant because the sales were made for the benefit of the family and also for the justifiable legal necessity. Now the purchasers are in possession and enjoyment of those properties. 15. He has also contended that in the first item, he, the plaintiffs and the second defendant are having equal shares, excluding the property sold out. The second item of the suit property is his separate property and as such, he alone is having absolute right and power of disposition. 16. As per the verdict of panchayatadars held on 15.11.2001, each of three daughters should be paid Rs.1,00,000/- by him (the first defendant being the father) in lieu of their share in the suit properties and to allow him (first defendant) to sell the suit properties to discharge the debts and the same was agreed and accepted by the plaintiffs and the second defendant without any demur and they had also accepted to release their interest in the suit properties by voluntarily agreeing to receive Rs.1,00,000/- each from him. 17. 17. In pursuant to the verdict of the panchayat, the second defendant had executed a registered release deed on 26.11.2001 in his favour after receiving a sum of Rs.1,00,000/- from him (D1). At any rate, the first defendant is willing to pay Rs.1,00,000/- to each plaintiff as per the directions of the panchayatadars. Since the plaintiffs had already relinquished their right in his favour, (D1) during the panchayat on 15.11.2001, they are not entitled to get any share. 18. The first defendant has contended further that he had purchased 1.84 acres comprised in S.No.70/1A, 1B, 1C and 1D under two registered sale deeds, dated 23.11.11993 and 24.2.1994 respectively in the name of the plaintiffs mother Sagunthala and this property is also common one and forms part of joint family. But purposely, the plaintiffs have omitted this property to be included in the suit schedule and therefore, the suit for piecemeal partition is not maintainable and that the plaintiffs are not entitled for the relief of interim injunction. There is no cause of action as against the first defendant. 19. In pursuant to the agreement of sale, the first defendant had executed a sale deed in favour of this defendant on 27.11.2000 in respect of a portion of the suit property. The plaintiffs are not in joint possession of the suit property. After his purchase, he alone had been in possession and enjoyment of the property, which was purchased by him from the first defendant. Since he is a bona fide purchaser the plaintiffs have no right over his property. 20. The written statement filed by the sixth defendant has been adopted by the defendants 4 and 5, wherein, they have contended that they are bona fide purchasers for value and after their purchase they are in actual possession and enjoyment of their respective properties. The sale deeds executed by the first defendant in favour of these defendants would definitely binding upon the plaintiffs. 21. The 7th defendant has contended that in pursuant to the sale agreement, dated 30.7.2001, he (D1) had executed a sale deed in his favour on 17.7.2002 in respect of a portion of the suit property. Since this defendant is a bona fide purchaser for value, the suit itself is liable to be dismissed as there was no joint possession. 22. The 7th defendant has contended that in pursuant to the sale agreement, dated 30.7.2001, he (D1) had executed a sale deed in his favour on 17.7.2002 in respect of a portion of the suit property. Since this defendant is a bona fide purchaser for value, the suit itself is liable to be dismissed as there was no joint possession. 22. The plaintiffs have also filed their reply statement to the written statements filed by the defendants, denying the averments made therein. The plaintiffs in their written statement have also contended that the sale said to have been made in favour of the defendants 3 to 7 by the first defendant would not bind upon them as they were not sold for family necessity. They have also contended that they never agreed to relinquish their respective shares and equally they never agreed to receive Rs.1,00,000/- towards their share in the alleged panchayat said to have been convened on 15.11.2001. 23. Based on the pleadings of the parties to the suit and on the material proposition of facts, the trial Court has formulated as nearly as 11 issues. In order to substantiate their respective cases, both the plaintiffs as well as the defendants were directed to face the trial. 24. The first plaintiff Vijayalakshmi had examined herself as P.W.1. Besides her, four more witnesses were examined on their side and during the course of their examinations Ex.A1 to A12 were marked. On the other hand, the first defendant Govindasami had examined himself as D.W.1. Apart from him, four more witnesses were examined on his side and during the course of their examinations, Exs.B1 to B18 were marked. 25. On evaluating the evidences both oral and documentary, the learned Trial Judge, had proceeded to pass a preliminary decree in respect of the first item alone saying that the plaintiffs are entitled to get 1/2 share in the first item of the suit property. The learned Trial Judge had dismissed the suit in respect of the second item saying that the plaintiffs didn't have any semblance of right to claim partition over this item and accordingly, the suit was partly decreed on 16.11.2006. 26. Aggrieved by the judgment and decree of the trial Court, dated 16.11.2006, the plaintiffs have preferred the present appeal in respect of item No.2 of the suit property. 26. Aggrieved by the judgment and decree of the trial Court, dated 16.11.2006, the plaintiffs have preferred the present appeal in respect of item No.2 of the suit property. On the other hand, the first defendant challenging the preliminary decree, dated 16.11.2006 in respect of the first item of the suit property has preferred a cross objection. 27. On perusal of the grounds of the memorandum of appeal as well as the cross objection, the following two crucial points are arisen for the consideration of this Court. a. Whether the second item of the suit property is not the separate property of the first defendant; if it is not so, whether the appellants/plaintiffs are entitled to claim shares in the suit second item also?b. Whether the sale deeds under Exs.A7 to A11 said to have been executed in favour of the defendants 3 to 7 would definitely not bind upon the plaintiffs/defendants? 28. The plaint schedule contains the following two items of properties a. Salem West Registration District, Omalur Sub Division, Omalur Taluk 041 Pal Bakki Village, S.No.54/1B Hectare 1.54.0 assessment No.5.95 with Well and 5 H.P. Electric motor with two bore well and air compressor motor with all easement rights. b. Salem Registered District, Omalur Sub Division, Omalur Taluk 041 Pal Bakki Village, S.No.54/1A, 2B, Hectare 1.27.5 assessment No.4.90 with terraced house with electric connection and a bore well with all easement rights.29. As observed earlier, the trial Court has passed the preliminary decree in respect of the first item of the property saying that the plaintiffs 1 and 2 are entitled to get 1/2 share in respect of the suit first item alone. The suit in respect of the second item as well as in respect of the relief of permanent injunction was dismissed. 30. The defendants 3 to 7/Respondents 3 to 7 have not filed any cross objection challenging the preliminary decree as they being the purchasers of the portions of the suit property. 31. The whole case is revolving around the centre point of Ex.B.1 Partition Deed, dated 22.4.1974. 32. One Ammasi Gounder and Pavayammal are the parents of the first defendant Govindasamy and his elder brother Perumal. One Sagunthala is the wife of the first defendant Govindasamy and through her the first defendant had begotten the plaintiffs 1 and 2 and the second defendant as their daughters. 32. One Ammasi Gounder and Pavayammal are the parents of the first defendant Govindasamy and his elder brother Perumal. One Sagunthala is the wife of the first defendant Govindasamy and through her the first defendant had begotten the plaintiffs 1 and 2 and the second defendant as their daughters. The second defendant is the eldest daughter whereas the plaintiffs 1 and 2 are the younger sisters. The marriage of the second defendant was solemnised on 24.2.1997. The marriage of the first plaintiff was solemnised on 18.6.1999, whereas the marriage of the second plaintiff was solemnised on 28.11.2001. Ex.B1 is the registered partition deed, dated 22.4.1974 executed among Ammasi Gounder and Pavayammal, their elder son Perumal and younger son Govindasamy, who is the first defendant herein. 33. As per Ex.B1 Partition deed, 'A' schedule property was allotted to the share of Ammasi and his wife Pavayammal, 'B' schedule was allotted to the share of their elder son Perumal, whereas 'C' schedule was allotted to the first defendant. From this document under Ex.B.1, it is revealed that both Perumal and Govindasamy(D1) are given exclusive rights in respect of their shares, viz., schedule 'B' and schedule 'C' therein. 34. In so far as the properties set out in 'A' schedule is concerned, it is stipulated in the said document that the first defendant's parents , viz., Ammasi Gounder and Pavayammal were given only life interest. Till their life time, they can enjoy the 'A' schedule property without making any encumbrance and can enjoy the income absolutely which could be derived from this property. After their life time, item Nos.1, 4, 5, 6 and 7 in schedule 'A' shall devolve upon their first son Perumal and item Nos.2, 3, 8, 9, 10 and 11 of schedule 'A' shall devolve upon the first defendant Govindasamy. Apart from this, item Nos.12, 13 and 14 in 'A' schedule were placed in common and these three items can be enjoyed by the sons, viz., Govindasamy and Perumal in common. 35. In respect of item Nos.2, 3, 8, 9, 10 and 11 of 'A' schedule of Ex.B1 after the life time of his parents, viz., Ammasi and Pavayammal, the first defendant would be getting absolute right. 35. In respect of item Nos.2, 3, 8, 9, 10 and 11 of 'A' schedule of Ex.B1 after the life time of his parents, viz., Ammasi and Pavayammal, the first defendant would be getting absolute right. According to the first defendant, as per the recitals and conditions set out in Ex.B1 Partition deed, dated 22.4.1974 and as per the intention and voluntary desire of his parents, the second item shall devolve on him by inheritance. His parents had passed away 17 years ago and as a result of which, the second item of the suit property, which form part of 'A' schedule in Ex.B1 has been succeeded by him by way of succession and as such, the second item is his separate property in which neither the plaintiffs nor the second defendant have got any right and therefore, the second item is not available for partition. His contention has been accepted by the learned trial Judge and therefore, he had proceeded to dismiss the suit in respect of second item saying that the plaintiffs are not entitled to claim any share in the second item of the suit as it is the separate property of the first defendant. 36. Mr. T. Murugamanickam, learned counsel appearing for the plaintiffs while advancing his arguments has drawn the attention of this Court to paragraph No.10 of the written statement filed by the first defendant, wherein, he has stated that in the first item of the suit property, he being the first defendant, the second defendant and the plaintiffs are having equal share, excluding the properties, which were sold out. He has also stated that in respect of the second item of the suit property, he alone has got absolute power of disposition and if for any reason these properties are construed as joint family properties then the sale is justifiable and binding on the plaintiffs and that the daughters have no substantial right in the suit second item. 37. It is imperative on the part of this Court to make reference to the issue Nos.1 and 2. Issue No.1:- Whether the suit properties are the ancestral joint family properties? Issue No.2 :- Whether the entire second item of the suit property is the separate property of the first defendant ? 38. 37. It is imperative on the part of this Court to make reference to the issue Nos.1 and 2. Issue No.1:- Whether the suit properties are the ancestral joint family properties? Issue No.2 :- Whether the entire second item of the suit property is the separate property of the first defendant ? 38. In respect of Issue No.1, the learned trial Judge has found that no evidence is available to show that the suit properties are the ancestral joint family properties. 39. With reference to the second issue, the learned trial Judge has found that the second item is the exclusive property of the first defendant and that it is not the ancestral joint family property. However, while concluding the judgment, he has found that in so far as the suit first item is concerned, the plaintiffs are entitled to 1/2 share and he has, therefore, granted a preliminary decree in favour of the plaintiffs. In this connection, Mr.T. Murugamanickam has adverted to that the suit second item also must be construed as the joint family property. 40. Admittedly, the first defendant has got no male issue. The second defendant is his elder daughter whereas the plaintiffs 1 and 2 are the younger daughters. 41. In so far as the second defendant is concerned, she remained ex parte in the suit and in this connection, the first defendant has stated in paragraph 10 of his proof affidavit as well as in paragraph 13 of his written statement, that on 15.11.2001, a panchayat was convened at Omalur in the presence of Paramasiva Gounder and in the said panchayat, the plaintiffs, second defendant as well as their mother were present and as per the panchayat verdict, each of the three daughters should be paid Rs.1.00 lakh each by the first defendant being the father in lieu of their share in the suit properties and that the first defendant could sell the suit properties to discharge the existing debts. 42. He has also further stated that the said panchayat verdict was accepted by the plaintiffs and the second defendant and they have also agreed to release their respective interest in the suit properties and accordingly, the second defendant had executed a registered release deed, dated 26.11.2001 (Ex.B.2) in favour of the first defendant relinquishing her interest in the suit property. He has also further stated that the said panchayat verdict was accepted by the plaintiffs and the second defendant and they have also agreed to release their respective interest in the suit properties and accordingly, the second defendant had executed a registered release deed, dated 26.11.2001 (Ex.B.2) in favour of the first defendant relinquishing her interest in the suit property. As the second defendant remained ex parte Ex.B.2 release deed, dated 26.11.2001 does not require much discussion as it is deemed to be proved. 43. Mr. T. Murugamanickam, has also maintained that the marriages of the plaintiffs were solemnised after the enactment of the Tamil Nadu Act 1 of 1990 which came into force on and from 25.3.1989 and that the same is having retrospective effect and therefore, the second item of the suit property should also have been treated as a joint family property and that the learned trial Judge ought to have concluded that the plaintiffs are entitled to have 1/2 share in the suit second item also. But this ground, i.e., the plaintiffs are entitled to have 1/2 share in the ancestral properties of their father as per the Tamil Nadu Act 1 of 1990 has not been set out in the memorandum of appeal. Though this ground has not been raised in the memorandum of appeal, having been advanced his argument on the provisions of the Act 1 of 1990, it has become necessitated for this Court to place it's view on record. 44. The Act of 1 of 1990 is called Hindu Succession (Tamil Nadu) Amendment, Act 1989. As argued by the learned counsel Mr. T. Murugamanickam, it came into effect on 25.3.1989. The objects and reasons for the enactment of this Act is :- a. Whereas the Constitution of India has proclaimed equality before law as a fundamental right; b. And Whereas the exclusion of the daughter from participation in coparcenary ownership merely by reason of her sex is contrary thereto; c. And Whereas such exclusion of the daughter has led to the creation of the socially pernicious dowry system with its attendant social evils; d. And Whereas this baneful system of dowry has to be eradicated by positive measures which will simultaneously ameliorate the conditions of women in the Hindu Society; 45. The amendment by way of insertion of new Chapter II-A was brought by the Tamil Nadu Legislative Assembly. The amendment by way of insertion of new Chapter II-A was brought by the Tamil Nadu Legislative Assembly. In the Hindu Succession Act, 1956 (Central Act 30 of 1956), the following Chapter II-A -Succession by survivorship was inserted. CHPATER II-A - SUCCESSION BY SURVIVORSHIP "29-A. Equal rights to daughter in coparcenary property : Notwithstanding anything contained in section 6 of this Act:- (i) in a Joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcenar in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship ; and shall be subject to the same liabilities and disabilities in respect thereto as the son; (ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son; Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter: Provided further that the share allottable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter, as the case may be; (iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her or by will or other testamentary disposition: (iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989: (v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989." 46. That as per Section 29-A (i) the daughter of a coparcener shall become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she had been a son and shall be subject to the same liabilities and disabilities in respect of thereto as the son. 47. As per Section 29-A (ii), a daughter shall be entitled to the same share as allotable to a son, however, as per Section 29-A (iv) nothing in this Chapter II-A shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989. 48. On coming to the case on hand, Mr. T.Murugamanickam, has restricted his argument with regard to item No.2 of the plaint schedule and submitted that since item No.2 was also subjected to partition under the same document Ex.B.1 Partition deed that item also should have been construed as an ancestral property and therefore, the learned trial Judge ought to have granted requisite share to the plaintiffs as in the case of the first item. 49. In support of his argument, he has placed reliance upon the following two decisions:- a. C.N. Arunachala Mudaliar vs. C.A. Muruganatha Mudaliar and another AIR 1953 SC 495 ). b. Smt. Hemanta Kumari Patnaik and others vs. Suryanarayan Acharya and others (AIR 1992 Orissa 1). 50. In the first decision, i.e.., C.N. Arunachala Mudaliar vs. C.A. Muruganatha Mudaliar and another AIR 1953 SC 495 ), a three Judges Bench of the Hon'ble Supreme Court has observed as under:- "It is undoubtedly true that according to Mitakshara, the son has a right by birth both in his father's and grandfather's estate, but as has been pointed out before, a distinction is made in this respect by Mitakshara, itself. In the ancestral or grandfather's property in the hands of the father the son has equal rights with his father. While in the self acquired property of the father his rights are unequally by reason of the father having an independent power over or predominant interest in the same; vide Mayne's Hindu Law, 11th Edition, page 336. It is obvious however, that the son can assert this equal right with the father only when the grandfather's property has devolved upon his father and has become ancestral property in his hands. It is obvious however, that the son can assert this equal right with the father only when the grandfather's property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normal vest in the father as ancestral property it and when the father inherits such property on the death of the grandfather or receives it by partition, made by the grandfather himself during his life time. On both these occasions the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. It has also been observed that when the father obtains the grandfather's property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. The interest which he takes in such property must depend upon the will of the grantor. A good deal of confusion, we think, has arisen by not keeping this distinction in mind. To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the made of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. The Mitakshara, we think, is fairly clear on this point. It has placed the father's gifts under a separate category altogether and in more places than one has declared them exempt from partition. Thus, in Chap. I, Sec. 1, placitum 19 Mitakshara refers to a text of Narada which says: "Excepting what is gained by valour, the wealth of a wife and what required by science which are three sorts of property exempt from partition; and any 'favour conferred by a father'.". 51. Thus, in Chap. I, Sec. 1, placitum 19 Mitakshara refers to a text of Narada which says: "Excepting what is gained by valour, the wealth of a wife and what required by science which are three sorts of property exempt from partition; and any 'favour conferred by a father'.". 51. The Full Bench of the Hon'ble Apex Court has also observed in para-13 of the above cited decision that ..........We hold, therefore, that there is no warrant for saying that according to the Mitakshara, an affectionate gift by the father to the son constitutes 'ipso facto' an ancestral property in the hands of the donee. 52. In regard to the above context, Mr. T. Murugamanickam, has added that merely because suit item No.2 has been allotted to the first defendant in the family partition under Ex.B.1 the property does not lose the character of joint family property and does not by itself become the separate property of the first defendant. 53. He has also maintained that the portion of 'A' Schedule in Ex.B.1 Partition Deed, allotted to the parents of the first defendant would go to the first defendant after their life time. However, these properties would continue to retain the status of joint family properties, since the father has not chosen to settle his share in favour of the first defendant. 54. In support of his argument, Mr. T.Murugamanickam, has placed reliance upon the second decision cited above, i.e., Smt. Hemanta Kumari Patnaik and others vs. Suryanarayan Acharya and others (AIR 1992 Orissa 1). 55. In this case, in paragraph 5, the learned Single Judge of the Orissa High Court has observed that, "A deed of partition necessarily pre-supposes that more than one person has a joint share in the property and that joint share is divided between the parties. Where the Karta who is the father exercises the power to divide the joint family property, the document bringing about the division is clearly an instrument of partition within the meaning of Section 2(15). The document could be a 'settlement' within the meaning of Section 2(24)(b) of the Stamp Act, if the property belonged to the settlor. 56. In paragraph 7 the learned Judge has observed that, "7. The document could be a 'settlement' within the meaning of Section 2(24)(b) of the Stamp Act, if the property belonged to the settlor. 56. In paragraph 7 the learned Judge has observed that, "7. From the contents of the document as discussed above it is clear that what was intended to be done by the document was a division of the properties of the joint family amongst members of the family. It is not a document under which a person having exclusive title and interest in the property settles it with another and creates title and interest of the latter in the property. There is little scope for dispute and indeed the position was not controverted that under Section 2(15) a document was witnessing a previous oral partition is not required to be stamped. As noticed earlier, in order to determine the nature of the document the contents of it have to be looked into and not its liable. Therefore, the document in question though described as a deed of 'settlement' does not, in my view, come within the purview of Section 2(24). 57. In this connection, Mr. T. Murugamanickam, has also canvassed on the plea of the first defendant that the document under Ex.B1 would act as a dual document and if at all the first defendant had got exclusive right over the second item of the suit schedule property, which forms part of 'A' schedule under Ex.B.1 , which was originally allotted to the parents of the first defendant, a separate document either under the caption of 'Settlement' or under the caption of 'Will' should have been executed by the parents of the first defendant. 58. Mr. T. Murugamanickam, has also added that Ex.B.1 by itself is a partition deed. 58. Mr. T. Murugamanickam, has also added that Ex.B.1 by itself is a partition deed. It defines the division of the properties amongst the members of the joint family, the first defendant and his elder brother Perumal as well as their parents and since the ancestral joint family properties were subjected to division and the properties which were allotted to the share of the parents, under 'A' schedule, were subsequently, divided into two compartments, one shall go to the elder son Perumal and the other shall go to the second son, the first defendant, in the suit and after the life time of their father that must also be construed as a joint family property and shall not be construed as a separate property of their father. 59. It is apparent that Ex.B.1 is a certified copy of the registered partition deed, dated 22.4.1974. The deed of partition under Ex.B.1 recites that 'A' schedule was allotted to their parents with restricted rights. The parents of the first defendant cannot transfer or encumber the property specified under 'A' schedule, instead they can enjoy the income which may be derived from that property till their life time. After their life time, item Nos.1, 4, 5, 6 and 7 of 'A' schedule shall devolve on the first son Perumal and other items, viz., 2, 3, 8, 9, 10 and 11 shall devolve upon their second son, who is the first defendant. Half share in items, viz., 12, 13 and 14 shall devolve upon the first defendant. After the life time of their parents, both the sons Perumal and Govindasamy (D1) have derived exclusive right over that property. 60. As argued by Mr. T. Murugamanickam, though Ex.B1 act as a composite document, this document under the caption of partition has been registered as required by Section 17 of the Registration Act with the payment of adequate stamp duty. 61. Since 'A' schedule shall devolve on Perumal and Govindasamy after the life time of their parents and they have also consented for such disposition, it can also be construed as the will of their parents. It cannot be construed as settlement. A major distinction between 'settlement' and the 'Will' as per Black's Law Dictionary, Sixth Edition (Centennial Edition) 1891-1991, has been shown at page 1372. 62. It cannot be construed as settlement. A major distinction between 'settlement' and the 'Will' as per Black's Law Dictionary, Sixth Edition (Centennial Edition) 1891-1991, has been shown at page 1372. 62. The expression 'settlement' has been defined as, "act or process of adjusting or determining; an adjusting; an adjustment between persons concerning their dealings or difficulties; an agreement by which parties having disputed matters between them reach or ascertain what is coming from one to the other; arrangement of difficulties; composure of doubts or differences; determination by agreement; and liquidation. In legal parlance implies meeting of minds of parties to transaction or controversy; an adjustment of differences or accounts; a coming to an agreement. To fix or resolve conclusively, to make or arrange for final disposition. 63. At page 606 in Black's Law Dictionary, the Phraseology, Family Settlement, has been defined as under:- "An agreement between members of a family settling the distribution of family property among them. (Fitzgerald v. Nelson, 159 Or. 264, 79 P. 2D 254, 255). An arrangement or an agreement, between heirs of a deceased person, by which they agree on distribution or management of estate without administration by court having jurisdiction of such administration proceedings. (Wright v. Saltmarsh, 174 Okl. 226, 50 P. 2D 694, 703). 64. The term Will has been defined in the Black's Law Dictionary at page 1598 in the same edition, as under:- "The expression 'Will' means and includes:-Wish, desire, pleasure; inclination; choice; the faculty of conscious; and especially of deliberate, action. When a person expresses his "will" that a particular disposition be made of his property, his words are words of command and the word "will" as so used is mandatory, comprehensive and dispostive in nature. An instrument by which a person make a disposition of his real and personal property, to take effect after his death and which by its own nature is ambulatory and revocable during his life time. The legal expression or declaration of a person's mind or wishes as to the disposition of his property, to be performed or take effect after his death. A revocable instrument by which a person makes disposition of his property to take effect after his death. (Howard's Ex'r v. Dempster, 246Ky, 153, 54 S.W. 2D 660, 661). The legal expression or declaration of a person's mind or wishes as to the disposition of his property, to be performed or take effect after his death. A revocable instrument by which a person makes disposition of his property to take effect after his death. (Howard's Ex'r v. Dempster, 246Ky, 153, 54 S.W. 2D 660, 661). A written instrument executed with the formalities required by statues, whereby a person makes a disposition of his property (real and personal) to take effect after his death. " 65. On coming to the instant case on hand, Ex.B.1 may be a composite document, but it is a registered one. In respect of 'A' schedule properties virtually, it was allotted to the share of the parents and as per the wishes of the parents, both of their sons viz., Perumal and Govindasamy (D1) shall acquire the properties, after their life time. Therefore, in so far as 'A' schedule property under Ex.B.1 is concerned, could be construed as testamentary disposition of the parents of the first defendant. 66. Accordingly, after their life time, the portion set out therein was derived by the first defendant that forms part of item No.2 in this suit and therefore, the first defendant has come forward with the plea that the suit second item is his exclusive property and is having his prerogative rights to deal with that property in accordance with his whims and fancies and therefore, it cannot be construed to be the joint family property and it cannot also be construed as ancestral joint family property. 67. Ex.B.1 itself irresistibly and unequivocally without any ambivalence has described that in the portion of the property which might have derived by the sons, they are having every right of disposition in accordance with their own will. Therefore, as per the wishes of their parents as set out in Ex.B.1, in respect of 'A' schedule it does not require separate registration as the document has duly been registered. 68. On the other hand, Mr. V.Bharathidasan, learned counsel for the first defendant, has adverted to that after effecting partition under Ex.B.1 on 22.4.1974, the parties had got their respective shares and kept under their exclusive possession and enjoyment. In the year 1995, sub division was effected and the serial numbers were merged and new serial numbers were assigned by the revenue authorities. 69. V.Bharathidasan, learned counsel for the first defendant, has adverted to that after effecting partition under Ex.B.1 on 22.4.1974, the parties had got their respective shares and kept under their exclusive possession and enjoyment. In the year 1995, sub division was effected and the serial numbers were merged and new serial numbers were assigned by the revenue authorities. 69. He has also argued that Survey No.54/1A and Survey No.54/2A in respect of 2.35 acres were amalgamated together and given a new Survey number as 54/1A measuring 6.6.7 acres and 4.32 acres plus 2.35 acres as afore stated. Survey No.1.54/1/3 in respect of 2.35 acres and Survey No.54/2B in respect of 1.45 acres were clubbed together and new Survey NO.54/1B in respect of total 3.80 acres was assigned themselves as the first item of the suit schedule property. 70. Similarly, in the year 1989, a sub division was effected and in pursuant to the sub division, the property earmarked to the first defendant Govindasamy as per Schedule 'A' of the partition deed, dated 22.4.1974 was assigned with new survey number as 54/1A in respect of an extent of 1.27.5 hectares. 71. He has also argued that item No.2 as per the terms of Ex.B.1 shall be treated as separate property of the first defendant and it shall not be mingled with the ancestral property, i.e., with item No.1. 72. In support of his argument, he has placed reliance upon the following two decisions:- a. The Additional Commissioner of Income Tax, Madras-I vs. P.L. Karuppan Chettiar AIR 1979 MADRAS 1). "In this case, "P" who along with his wife their son "K" and their daughter-in-law constituted a Hindu Undivided family. There was a partition in this family on 22.3.1954 by a under which P was allotted certain properties and for his share and he got separated. This partition was recognized by the Income-tax Act 1922. Thereafter, K and his wife and their subsequently born sons and daughter constituted a Hindu undivided family which was the assessee and had been assessed in that status. P died on 9.9.1963, leaving behind his widow and K who was also the kartha of the assessee Hindu undivided family as his legal heirs. These two persons succeeded to the properties left by P under S. 8 of the Hindu Succession Act and divided the same between themselves. P died on 9.9.1963, leaving behind his widow and K who was also the kartha of the assessee Hindu undivided family as his legal heirs. These two persons succeeded to the properties left by P under S. 8 of the Hindu Succession Act and divided the same between themselves. In the assessments made on the assessee Hindu undivided family for assessment years 1966-67 to 1970-71, the Income-tax Officer included in the computation of the total income, the income received from the properties inherited y K from his father P." 73. In this case, a question was arising as to whether when succession opens under Section 8, Karuppan and his son will take the property in the same manner. 74. For this question, the Full Bench of this Court headed by His Lordship P. Govindan Nair, former Chief Justice, as he then was, has answered as under:- "The question is whether when succession opens under Section 8, Karuppan and his son will take the property in the same manner. Clearly, this is not so. When we search for the relatives mentioned in class I of the schedule which is attracted by virtue of Section 8, we find no sorts are mentioned at all though the grandson of a deceased son is mentioned. What would be the effect when such a grandson comes into the picture need not be dealt with in this case. But where the son as well as his son are the persons concerned, by applying Section 8 we have to come to the conclusion that the father alone, namely, Karuppan in this case will inherit the property to the exclusion of the grandson. This being the effect of the statutory provision, no interest will accrue to the grandson in the property which belonged to Palaniappa. Even assuming Palaniappa's property is ancestral property in the hands of Karuppan, still because of the effect of the statute, Karuppan's so will not have an interest in the property. This is directly derogatory of the law established according to the principles of the Hindu Law and this provision in the statute must prevail in view of the unequivocal expression of the intention in the state itself which says that to the extent to which provisions had been made in the statute those provisions shall override the established provisions in the texts of Hindu Law." 75. Mr. Mr. V. Bharathidasan has also placed reliance on an another decision in Yudhishter vs. Ashok Kumar AIR 1987 SC 558 ). In this case, the Division Bench of the Hon'ble Apex Court, headed by His Lordship Mr. Justice Sabyasachi Mukharji, has made a reference to the decision of the Apex Court in Commissioner of Wealth Tax, Kanpur vs. Chander Sen (1986) 3 SCC 567 : ( AIR 1986 SC 1753 ). This judgment has also been penned down by the Hon'ble Mr. Justice Sabyasachi Mukharji, wherein His Lordship has observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. The right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source, from the grandfather or from any other source, but it is separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who from joint Hindu family with him. 75a. In this connection, Sabyasachi Mukharji, J., has held further in the very same paragraph that, "This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity............In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." 76. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." 76. On coming to the instant case on hand, after getting partition, in respect of their ancestral joint family property under Ex.B.1 the father of the first defendant got separated with his exclusive share under 'A' Schedule. Similarly, the first son Perumal also got separated from the Hindu Joint family status as well as by the first defendant. After the division of Hindu Joint Family Status, 'A' schedule had become the exclusive property of the parents of Perumal and Govindasamy (D1) and as discussed hereinbefore, with regard to 'A' Schedule the document itself recites that after the life time of their parents, item Nos.1, 4, 5, 6 and 7 of 'A' Schedule shall devolve upon the first son Perumal and similarly, item Nos.2, 3, 8, 9, 10 and 11 of 'A' schedule shall devolve upon the first defendant Govindasamy. Besides this, item Nos.12, 13 and 14 are placed in common and this could be enjoyed by both the sons Perumal and Govindasami in common. 77. This court would also like to place it on record that the joint family status cannot be attached with the second item of the suit property as already it was detached from HUF under Ex.B1. 78. The next point would arise for consideration is, whether the debts incurred by the first defendant as well as the sale consideration effected under Ex.A7 to A11 would be binding upon the plaintiffs. 79. With regard to this point, the trial Court has formulated issue No.5, which reads as under:- "Whether the debts incurred by the first defendant are binding upon the plaintiffs." 80. This issue has simply been answered by the learned trial Judge saying that the first defendant has not produced any evidence to show that the debts were incurred for the benefit of the family and as such he has given a finding saying that the debts are not binding on the plaintiffs. However, he has decided that the second item of the suit property is the exclusive property of the first defendant and that the plaintiffs 1 and 2 are entitled to get 1/2 share alone in the first item of the suit property. 81. However, he has decided that the second item of the suit property is the exclusive property of the first defendant and that the plaintiffs 1 and 2 are entitled to get 1/2 share alone in the first item of the suit property. 81. It is the claim of the plaintiffs that when the first defendant was working as health supervisor at Primary Health Centre in Tamil Nadu Government, he had developed illicit intimacy with one woman, viz., Unnamulai w/o.Govindaraju and also addicted to drink and as such he had spent money for that lady. 82. Their second contention is that the first defendant with the defendants 3 to 7 had created sham and nominal sale deeds in their names and therefore, those sales would not be binding upon them as they are not the parties to the sales and that the debts incurred by the first defendant were not for the legal necessity of the family. 83. In this connection, in her cross examination, P.W.1 Vijayalakshmi, who is the first plaintiff, has stated that the first defendant had constructed a house in the first item of the suit property and for that she did not know as to whether he had borrowed a loan from the Cooperative Housing Society. 84. She has also stated that she did not know as to whether her father D1 had borrowed the loan from the State Bank of India. She has fairly admitted in her cross examination that her father D1 had spent for her education and that she did not know as to whether her father had borrowed any loan in respect of the properties which he had got from partition. While giving answer to the question as to whether she was aware of the fact that the second defendant had executed a release deed in favour of the first defendant by receiving a sum of Rs.1.00 lakh as decided in the panchayat held on 15.11.2001, she has answered simply that "she did not know". 85. P.W.2 one Kunja Gounder has stated that from the year 1965-75 he was the President of Village Panchayat. He has stated in his proof affidavit that in the family partition, the first defendant was allotted 7 1/2 acres of land and he was earning more than Rs.10000/- from the government employment and that there was no necessity for obtaining loan from outside. He has stated in his proof affidavit that in the family partition, the first defendant was allotted 7 1/2 acres of land and he was earning more than Rs.10000/- from the government employment and that there was no necessity for obtaining loan from outside. He has also stated that he had developed intimacy with one Unnamulai wife of one Govindaraju and subsequently, she was separated from her husband by D1 and put her in a separate family and only on that score a family dispute was erupted between D1 and his wife, which culminated in driving out his wife successfully with the plaintiffs and the second defendant . But he was not subjected to cross examination. 86. The first defendant, who had examined himself as D.W.1 has admitted that he had alienated certain properties in favour of D3 to D7 and that D3 to D7 have been in possession and enjoyment of their respective properties purchased from him. He has also stated in his evidence that the sale proceeds, i.e. Rs.2,13,000/- was spent towards the maintenance of the family and also to discharge the family debts as he being the kartha of the family. 87. He would further state that since he had incurred debts for the legal necessity of the family if at all the plaintiffs claim a share in the suit properties, they must also be ready to bear the respective share in the family debts. 88. It is also stated that he had spent money for the education of the plaintiffs as well as the second defendant and he had conducted marriages after spending huge amount. But this fact was denied by P.W.1 as well as other witnesses, viz., P.Ws.2 to 5. They have categorically stated that the first defendant was earning sufficient money and that he was not under the legal necessity to borrow loan from outsiders. But D.Ws.2 to 5 who are the defendants in the suit as well as the purchasers of the property from the first defendant have categorically stated that the first defendant had sold his property to them for meeting out family debts. 89. In this connection, Mr. But D.Ws.2 to 5 who are the defendants in the suit as well as the purchasers of the property from the first defendant have categorically stated that the first defendant had sold his property to them for meeting out family debts. 89. In this connection, Mr. T.Murugamanickam has argued that when the sale of the six items under Exs.A7 to A11 had taken place, the plaintiffs were major and therefore, they ought to have been sold with the consent of the plaintiffs as they being the coparcenars and since the plaintiffs were not parties to sale effected in favour of the defendants 2 to 7, the sale under Exs.A7 to A11 would not be binding upon them. 90. In support of his contention, Mr.T.Murugamanickam has placed reliance upon the decision reported in AIR 1964 SC 1385 (Balmukand vs. Kamla Wati and others), wherein the Division Bench of the Apex Court has held that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each case the court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into. Where adult members are in existence the judgment is to be not that of the Manager of the family alone but that of all the adult members of the family, including the manager. 91. It has also been held that all the brothers of P were adults when the contract was entered into. There was no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction. The adult members of the family had stoutly resisted the plaintiff's claim for specific performance. 92. It has also further been held that apart from that the adult members of the family were well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the Manager on the ground of alleged benefit to the family without consulting them. 93. 92. It has also further been held that apart from that the adult members of the family were well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the Manager on the ground of alleged benefit to the family without consulting them. 93. In this regard, it is imperative on the part of this Court to refer to the proof affidavit of D.W.1, wherein, he has stated that for the maintenance of the family and also for discharging the debts, he had to borrow loan from the State Bank of India as well as the Housing Cooperative Society and those facts were known to the plaintiffs, the second defendant as well as their mother. 94. He has also stated that the attached list containing the details of various loans borrowed by him comes to Rs.25,25,000/-. Ex.B.2 is the release deed said to have been executed by D2, who is the elder daughter of the first defendant in favour of the first defendant relinquishing her interest over her 1/2 share in the suit properties after receiving Rs.1.00 lakh pursuant to the panchayat held on 15.11.2001. This release deed appears to have been registered under Doc.No.266 of 2005. This document has not been effectively denied by the plaintiffs and there is also no evidence on the part of the plaintiffs to show that those document has been concocted with the connivance of the second defendant. 95. The first defendant in his written statement has stated that at the time of panchayat held on 15.11.2001 no contemporaneous document was executed. However, the convening of panchayat has been referred to in Ex.B.2 Release Deed alleged to have been executed by the second defendant. 96. It may also be relevant to note here that the first defendant in his written statement has stated that he had purchased 1.84 acres of land comprised in S.No.7/1A, 1B, 1C, 1D under sale deed, dated 23.11.94 and 24.12.94 in favour of his wife. Ex.B3 seems to be the certified copy of the settlement deed, dated 29.12.2004 which discloses the fact that the first defendant's wife Govindasamy Sagunthala, who is also the mother of the plaintiffs and D2 had executed the settlement deed in favour of the first plaintiff Vijayalakshmi in respect of her property. Ex.B3 seems to be the certified copy of the settlement deed, dated 29.12.2004 which discloses the fact that the first defendant's wife Govindasamy Sagunthala, who is also the mother of the plaintiffs and D2 had executed the settlement deed in favour of the first plaintiff Vijayalakshmi in respect of her property. Exs.B.4 and B5 are the receipts, dated 22.3.1990 for having discharged the loan and these receipts appears to have been issued by the Special Officer, Melur Taluk Cooperative Bank Ltd. Ex.B.6 is the notice received by the first defendant from the State Bank of India with regard to the loan borrowed by him. 97. Similarly, Exs.B.11 to B.15 are the receipts for having discharged the loan and Ex.B.16 also appears to be the certificate issued by the Melur Taluk Housing Cooperative Society for having discharged the loan. Ex.B.17is the receipt for having paid a sum of Rs.1.00 lakh to the Salem Dhanalakshmi Finance. Ex.B.18 is the auction notice with regard to jewellery pledged with the State Bank of India, Melur. 98. The plaintiffs have mainly stated that the loans were not borrowed for the legal necessity of the family and in order to disprove their contention the first defendant had produced and marked Exs.B1 to B.18 as cited. With regard to alienation of some of the properties under Exs.B.7 to B.11, Mr.S.M. Loganathan, learned counsel appearing for D3 to D6 has submitted that the alienation would prove that the sales under Exs.A7 to A11 were for the legal necessity of the family. He has also argued that some derogatory remarks were made about their father, i.e., the first defendant, only in the first two lines of the plaint and no other allegations were made against him. He has also argued that the defendants 3 to 7 are bonafide purchasers for value and that the father who is the first defendant in the suit has every right and title to execute the sale deed in favour of the defendants 3 to 7 and after their purchase, they have been in their actual possession and enjoyment of the portion of the properties and that the defendants 3 to 7 had made improvements in the properties purchased by them. 99. In all the documents ranging from Exs. A7 to A11 the purpose for selling the property has been clearly stated. 100. 99. In all the documents ranging from Exs. A7 to A11 the purpose for selling the property has been clearly stated. 100. The settled principle of law is that alienation can be done in respect of the joint family property by the father, (Kartha) for the benefit of the family. But in the absence of satisfactory evidence, to show that the properties were sold to D3 to D7 for immoral purpose and not for the legal necessity of the family, this Court based on the oral evidence as well as the documentary evidence produced on behalf of the defendants holds that the alienations made under Exs.A7 to A11 only for the legal necessity of the family and not for the other purpose and therefore, the sales under Exs.A7 to A11 and the other debts incurred by the first defendant being the father will definitely bind upon the plaintiffs and Ex.B2 has given an additional strength to the case of the first defendant. 101. On a meticulous analysis of the evidences both oral and documentary available on record this Court finds that item No.2 is the separate property of the first defendant and that the plaintiffs are not entitled to claim any share much less 1/2 share in the second item of the suit property. 102. Keeping in view of the above facts, the finding of the trial court in respect of the issue No.5 has to be slightly modified. 103. In the result, the appeal is dismissed and the judgment and decree, dated 16.11.2006 and made in O.S.No.31 of 2004 are confirmed excepting the modification with regard to the finding in respect of Issue No.5 to the effect that the debts incurred by the first defendant and the sale under Exs.A7 to A11 made in favour of the defendants 3 to 7 by the first defendant would definitely bind upon the plaintiffs. Accordingly, the appeal is dismissed, whereas the cross objection filed by the first defendant is allowed. However, keeping in view of the nature of the dispute and the relationship of the plaintiffs and the first defendant, there is no order as to costs.