TMI Blog2022 (12) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... Through Ex.D11, whatever the properties possessed by L.P.L.Palaniappa Chettiar, were bequeathed to his sons and the legal heirs of the deceased son. Grievances of the plaintiff is that the first defendant has not acted as per the conditions/clauses in the Will - Because of the first defendant's indifferent attitude, the second defendant, their mother, had to borrow heavy loan to celebrate her marriage. She was not provided with the customary gifts and presents from time to time as per the Chettiar Community. Marriage expenses, gifts and dowry were not properly taken care. Rs.2,00,000/- and jewelleries were also not given. Plaintiff's claim that the first defendant had not acted in compliance to the conditions of the Will is one thing, and the challenge made to the very execution of the Will on the ground that the suit properties are ancestral joint family properties and therefore, the Will executed by their father P.L.Ramanathan @ P.L.Meenatchi Sundaram will bind only in respect of his share and will not extend to whole of the properties is another thing. There is unimpeachable evidence to show that share in item nos.1 and 2 of the suit properties was bequeathed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 37(2) of Court Fees Act is maintainable ? - The evidence available in this case shows that the plaintiff is not in physical possession of any of the suit properties. She resides in U.S.A. and conducts this case through her power of attorney PW1. There is also evidence to show that there are about 272 residential flats in item no.2 of the suit properties. Therefore, this Court finds that the plaintiff is not in possession of the suit properties and Court fee paid under Section 37 (2) of the Court fees Act claiming to be in joint possession is not correct for issue nos.5 6. Whether sale in the name of the ninth defendant is hit by lis pendens? - Before purchasing this property, it is seen that Exs.D2, D10 paper publications were made in the newspaper. After purchasing item no.2 of the suit properties, 8th and 9th defendants had entered into Ex.D4 agreement for sale. It is now claimed by the 9th defendant that 272 residential units had been constructed in the land. The learned counsel for the 9th defendant submitted that the 9th defendant's interest has to be protected as 9th defendant is a bonafide purchaser for value after taking necessary steps by issuing paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he terms of the Will as intended by the testator. Though this Will is not useful to advance the case of the plaintiff for partition, this Will is certainly useful to enforce her claim under the Will, if the executors fail to exercise their duties, responsibilities and powers. As found that item nos.1 2 of the suit properties are the self acquired properties of the first defendant through Ex.P4 Will executed by his father P.L.Ramanathan @ P.L.Meenatchi Sundaram and therefore, this Court finds that the plaintiff is not entitled for the relief of partition or for that matter any other relief. Since the defendants 5 to 7's claim is barred by the provisions of the Prohibition of Benami Property Transactions Act, 1988, they are also not entitled for claiming partition of their 3/8 share in item no.2 of the suit properties as a counter claim. The suit as well as the counter claim of the defendants 5 to 7 are dismissed. - C.S.No.518 of 2007 - - - Dated:- 25-11-2022 - Honourable Mr. Justice G.Chandrasekharan For the Plaintiff : Mr.P.L.Narayanan For the Defendant-1 : Mr.V.Anand for Mr.S.Victor Prasath For the Defendant-3 : Mr.V.Raghavachari For the Defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om appointing family friend Valliappan @ Palaniappan @ Sinna Valieppan @ Valieppa Chettiar, as the executor of his will, he appointed his wife, the second defendant, as the executrix to act jointly and severally. Though the Will states that the executors shall pay and apply such sums according to the Chettiar Community customs as required for the marriage expenses, gifts and dowry for the plaintiff, when the second defendant wanted to take and apply such amounts from the assets of the plaintiff's late father, first defendant did not allow her. The deceased father expressed his desire that the marriage of the plaintiff should be celebrated in a grand manner, but the first defendant stood in the way. However, second defendant conducted plaintiff's wedding in a grand manner by incurring huge expenditure by borrowing. The Will was probated before the Court of Malaysia. It was known to the plaintiff that first defendant had alienated the Malaysian property and appropriated huge wealth to himself, without the knowledge of the plaintiff and other family members. First defendant constructed a house at Thennore, Trichy, out of the joint family assets. Plaintiff is entitled to 1/3 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s notice. There are no joint family properties. All the properties are the absolute properties of the first defendant. There is no cause of action for the suit. Suit is not properly valued. Till this day, first defendant is providing gifts to the plaintiff periodically and the plaintiff is happily living with her husband in USA. Second defendant is retaining with her Rs.4,00,000/- which was set apart in 1992 and that amount would be given to plaintiff and third defendant after the lifetime of the second defendant. Jewels are also in the custody of second defendant and it is for her to make division of the jewelleries. There is no joint family properties and therefore, the suit is liable to be dismissed. 5. Case of the defendants 5, 6 and 7 is that they are the legal heirs of the deceased fourth defendant. The suit is not maintainable. Item No.1 of the suit property is not the property of P.L.Ramanathan @ P.L.Meenakshi Sundaram. P.L.Ramanathan @ P.L.Meenakshi Sundaram's father L.P.L.Palaniappa Chettiar and fourth defendant's father P.L.Palaniappa Chettiar were very close relatives. P.L.Palaniappa Chettiar's sister was given in marriage to L.P.L.Palaniappa Chettiar and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not cooperating with the fourth defendant, for impleading in the suit. Thus, these defendants are entitled to 1/2 of 3/8 share in item No.1 of the suit schedule. They pray that preliminary decree of partition and separate possession of 3/16 share of item No.1 may be granted in their favour. 8. It is stated in the written statement filed by the Ninth defendant that Ninth defendant is concerned with the land measuring 2.85 acres in S.No.208/3A, New S.No.208/20 situated at Nagalkeni, Pammal Village, Chrompet. Plaintiff is not in possession of the said 2.85 acres and therefore, valuation of the suit on the basis of joint possession and payment of Court Fee is not correct. This land was developed as apartment complex and were sold to third party purchasers. Third party purchasers are in exclusive possession and enjoyment of 2.85 acres. Third party purchasers are not impleaded as parties and therefore, the suit is bad for non-joinder of necessary parties. Other legal heirs of L.P.L.Palaniappa Chettiar were also not impleaded. All the assets and liabilities of the joint family are not included and therefore, the suit is bad for partial partition. 9. Originally this property belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 0.71 acres Chitradevi and Sethunarayanan - 0.71 acres 11. They offered these properties to the Eighth defendant. Eighth defendant through its counsel issued paper publication on 06.12.2007 in Dinamalar and on 07.12.2022 in New Indian Express. No claims of objection was received. Eighth Defendant purchased the said 2.85 acres acres on 10.01.2008 and in exclusive possession and enjoyment of this property. Eighth defendant entered into an agreement of sale dated 05.04.2010 in respect of this property with Ninth defendant. Eighth defendant appointed Ninth defendant as power of attorney agent on 05.04.2010. As per the power of attorney deed, Ninth defendant applied for planning permission for construction of residential building consisting Blocks A to J with 272 dwelling units. Ninth defendant spent substantial amounts towards obtaining planning and building permission for the construction. Entire 2.85 acres along with building were sold in favour of prospective purchasers. There are more than 200 families living in the said 2.85 acres. Ninth defendant is a bonafide purchaser for valuable consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed the directions in the Will and failed to make provisions for plaintiff and third defendant as per Will. The documents produced in this case, namely, Ex.P2 Certified copy of the sale deed and Ex.D11 photocopy of the Will dated 18.08.1983 executed by the grandfather of the plaintiff, would show that there were ancestral properties and out of the ancestral nucleus, the suit properties were purchased. First defendant is in possession of all the relevant and material documents. However, he has not chosen to produce those documents. Plaintiff has proved that the suit property is purchased from the ancestral nucleus and therefore, the suit is to be decreed as prayed for. 15. Learned counsel for the first defendant submitted that the execution and probate of Ex.D11 and Ex.D16 Wills are not disputed, rather admitted by all the parties. Plaintiff and third defendant received benefits under Ex.D16 Will. No ancestral nucleus or property is mentioned in Ex.D5. There is absolutely no evidence to show that there was ancestral property or ancestral nucleus available in the family. In the absence of any evidence to show the availability of ancestral property and ancestral nucleus, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal heirs, are entitled for a share in item No.2 of the suit properties. However, plaintiff has not impleaded all the rightful claimants as parties to the suit. Therefore, the suit is bad for non-joinder of necessary parties. Item No.2 of the suit properties was purchased by ninth defendant, from the legal heirs of L.P.L.Palaniappa Chettiar. Residential units were constructed in item No.2 of the suit properties and sold. The purchasers are not impleaded as parties to the suit properties. Few other properties still retain the character of joint family properties. Those properties are not included. Therefore, the suit is bad for partial partition. In the original plaint, item No.5 of the suit properties was struck of, but in the amended plaint, item No.5 of the suit properties was included without seeking permission from the Court. Item No.2 of the suit properties was not ancestral property or purchased from ancestral nucleus, but it was a self acquired property of L.P.L.Palaniappa Chettiar. 19. In reply, learned counsel for the plaintiff submitted that the Will executed by plaintiff's father, assuming that it is valid, it will be valid only to the extent of 1/16 share of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is denied by the defendants. The specific case of the first defendant is that there is no joint hindu family properties available in the family. 21. The first task of this Court is to find out whether the suit properties are joint hindu family properties or self acquired properties of plaintiff's father late P.L.Ramanathan @ P.L.Meenatchi Sundaram. The learned counsel appearing for the plaintiff relied on the judgment reported in (2007) 1 SCC 521 Appasaheb peerappa chamdgade Vs.Devendra peerappa chamdgade and others for the proposition that there is no presumption as to joint family property and the initial burden is on the assertor to prove that the property is a joint family property. He also relied on the judgment reported in (2013) 9 SCC 419 Rohit Chauhan Vs.Surinder singh and others for the proposition that the property acquired from partition by a sole co-parcener is his self acquired property. However, on the birth of a son, it becomes a coparcenary property. 22. The learned counsel for the first defendant relied on the judgment Amirthalingam Vs. Uthayathamma and 15 others reported in 1999 2 - LW 713 for the proposition that one who alleges, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the status of the remaining members vis- -vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property. 14 . Similarly, in Achuthan Nair v. Chinnamu Amma [(1966) 1 SCR 454 : AIR 1966 SC 411] their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the burden shifts to the party alleging self-acquistion to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence. (ii) In Rohit Chauhan v. Surinder Singh, reported in (2013) 9 SCC 419, it is observed as follows:- 11. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. AIR 1947 PC 189. relied on. 24. From the consideration of these judgments, the following principles would emerge: ➔ No presumption that a property is joint family property, just because the family is joint. ➔ Burden rests on the claimant, who asserts that that the property is joint family property. ➔ To render the property joint, plaintiff must prove the following things: The family was possessed of some property with income and from which property could have been purchased. Or The property must have been purchased from joint family funds such as sale proceeds of ancestral property or by joint labour I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on item no.5 of the suit properties. On going through the records, this Court found that item no.5 of the suit properties was deleted by scoring over the description of the property in the original plaint and that was included in the amended plaint. The learned counsel for the plaintiff is not able to show that this inclusion of item no.5 of the suit properties in the amended plaint was made after obtaining proper permission from the Court by way of filing an amendment petition. Therefore, this Court is of the view that the defendants' claim that the plaintiff is not entitled to claim any relief in respect of item no.5 of the suit properties shown in the amended plaint is justified. 26. Not only that from the documents produced in this case, there is no evidence produced to show that item no.5 of the suit properties or for that matter, item no.3 4 of the suit properties are owned by the joint hindu family of late P.L.Ramanathan @ P.L.Meenatchi Sundaram. Not even a single piece of paper was filed to show, how these properties were acquired, by whom they were acquired, whether they were enjoyed by late P.L.Ramanathan @ P.L.Meenatchi Sundaram or by his legal heirs and whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his property was partitioned between his father L.P.L.Palaniappa Chettiar and his uncle P.L.Palaniappa Chettiar in the ratio of 5/8 and 3/8 respectively. L.P.L.Palaniappa Chettiar is entitled to 39 cents and P.L.Palaniappa Chettiar is entitled to 23 cents. However, this claim was rejected by the Assistant Commissioner, Urban Land Tax and he declared 500 sq.m of land as excess land. 28. It is submitted by the learned counsel for the defendants 5 to 7 that when there is a positive evidence to show that L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar ran a partnership firm and they acquired properties and that their share of contribution was entered, in the accounts books maintained by them regularly, the rejection order passed by the Assistant Commissioner, Urban Land Tax, in Ex.D9 is not correct and that order will not bind the parties in claiming their respective shares in the partition. To strengthen his submissions that acquisition of item no.1 of the suit properties was jointly made by L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar and that they acknowledged their share in the ratio of 5/8 and 3/8 respectively, he further relied on Exs.D18 to D22. Ex.D18 is the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of item no.1 of the suit properties is not filed, it can be safely concluded that item no.1 of the suit properties was purchased by L.P.L.Palaniappa Chettiar and his brother in law P.L.Palaniappa Chettiar by making joint contribution in the ratio of 5/8 and 3/8, in the name of plaintiff's father P.L.Ramanathan @ P.L.Meenatchi Sundaram. L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar acknowledged their respective share through Ex.D18. Most importantly, the plaintiff's father late P.L.Ramanathan @ P.L.Meenatchi Sundaram had also acknowledged the share of L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar in the abovesaid ratio through Exs.D9, D20 and D21. 31. The analysis of the documentary evidence shows that L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar conducted a partnership firm in the name of M.P.M.L.Firm, Kuala Lumpur. This fact is strengthened from the recitals of the Ex.D11 Will executed by L.P.L.Palaniappa Chettiar. While dealing with his properties, he mentioned about his interest of 5/8 share in the partnership business, namely, M.P.M.L.Firm, in Kuala Lumpur, Malaysia. Therefore, it is patently clear and evident that L.P.L.Palaniappa Chettiar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken a plea that the defendants 5 to 7 cannot claim partition of 3/8 share in item no.1 of the suit properties on the ground that their claim is barred under Section 3 4 of the Prohibition of Benami Property Transactions Act, 1988 Act. Section 3 4 of the Prohibition of Benami Property Transactions Act, 1988 reads as follows: 3.Prohibition of benami transactions:- (1) No person shall enter into any benami transaction. (2) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (3)Whoever enters into any benami transaction on and after the date of commencement of the Benami Transactions (Prohibition) Amendment Act, 2016, shall, notwithstanding anything contained in sub-section (2), be punishable in accordance with the provisions contained in Chapter VII. 4.Prohibition of the right to recover property held benami.- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibition of Benami Property Transactions Act, 1988 has not been made retrospective by any specific provisions. While considering Section 3 4, it was observed in paragraph 22 as follows: 22. As defined in Section 2(a) of the Act benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by any other person. A transaction must, therefore, be benami irrespective of its date or duration. Section 3, subject to the exceptions, states that no person shall enter into any benami transaction. This section obviously cannot have retrospective operation. However, section 4 clearly provides that no suit, claim or action to enforce any right in re- spect of any property held benami against the person in whose name the property is held or against any other person shall lie, by or on behalf of a person claiming to be real owner of such property. This naturally relates to past transactions as well. The expression any property held benami is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof Shall lie. Simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n shall lie by or on behalf of a person claiming to be the real owner of suit property, it naturally relates to past transactions as well. Once a property is found to have been held benami, the real owner is bereft of any defence against the persons in whose name the property is held or any other persons. Ultimately, the Hon'ble Supreme Court annihilated the decree passed by the lower Court and dismissed the suit filed by the plaintiff. It is clear from this judgment that though the Prohibition of Benami Property Transactions Act, 1988 came into force subsequent to the purchase of item no.1 of the suit properties in the name of P.L.Ramanathan @ P.L.Meenatchi Sundaram by L.P.L.Palaniappa Chettiar and P.L.Palaniappa Chettiar, obviously as a benami, nobody can claim a share in item no.1 of the suit properties as they are prevented from making such a claim by the Prohibition of Benami Property Transactions Act, 1988. Thus, this Court finds that Item no.1 of the suit property can only be considered as a self acquired property of P.L.Ramanathan @ P.L.Meenatchi Sundaram despite his admission that P.L.Palaniappa Chettiar's heirs are entitled for 3/8 share in this property. 37. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re were ancestral properties and ancestral nucleus available to purchase properties, the only conclusion that can be drawn is that item no.2 of the suit properties was also purchased by L.P.L.Palaniappa Chettiar from his independent income through partnership business. 39. It is pertinent here to refer to the evidence of PW1 and PW2. PW1 is the father in law and power agent of the plaintiff. He stated during the course of his cross examination that he did not know whether the grandfather of the plaintiff and P.L.Palaniappa Chettiar were doing partnership business along with his brother in Malaysia. He did not know as to whether the grandfather of the plaintiff and P.L.Palaniappa Chettiar purchased the properties out of the income generated by them from the partnership conducted in Malaysia. He had not seen the last Will and Testament of the grandfather of the plaintiff. He has mentioned in the plaint that apart from the suit properties there are also other joint family properties available. They are not the subject matter of the suit for the reason that they are not likely to fetch realisational value. He did not know whether the funds received on account of the sale of the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther L.P.L.Palaniappa Chettiar was doing business in partnership with the fourth defendant's father P.L.Palaniappa Chettiar in Malaysia. He admitted that item no.1 of the suit properties was purchased with the funds provided by the plaintiff's grandfather L.P.L.Palaniappa Chettiar and fourth defendant's father P.L.Palaniappa Chettiar in the name of plaintiff's father P.L.Ramanathan @ P.L.Meenatchi Sundaram. He also admitted that the ratio of contribution by the plaintiff's grandfather and the fourth defendant's father was 5:3. He admitted that on 06.09.1967, plaintiff's grandfather and fourth defendant's father entered into a memorandum of confirmation of joint ownership. He is aware of the Urban Land Ceiling proceedings in respect of the item no.1 of the suit properties. He is also aware that P.L.Ramanathan @ P.L.Meenatchi Sundaram and fourth defendant gave statements in the course of Urban Land Ceiling proceedings that item no.1 of the suit properties was owned by the plaintiff's grandfather L.P.L.Palaniappa Chettiar and fourth defendant's father P.L.Palaniappa Chettiar in the ratio of 5/8 and 3/8. He admitted that the plaintiff's famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Ex.D11 Will is produced as Ex.D12. Both Will had been probated in Malaysia. It is not in dispute. As per Ex.P4 Will, plaintiff, the first and third defendant's mother, second defendant R.M.Thenammai and one Valliappan @ Palaniappan @ Sinnavalieppan A/L Valliappa Chettiar were appointed as executors and trustees. Under Ex.D11 Will executed by L.P.L.Palaniappa Chettiar, he appointed his sons P.L.Ramanathan @ P.L.Meenatchi Sundaram, namely, the plaintiff's father and his other son Lakshmanan @ Singaram @ Sethu Lakshmanan as executors and trustees. It is seen from Ex.D11 Will that L.P.L.Palaniappa Chettiar had four sons, namely, 1.Meenatchisundaram @ Ramanathan, 2.Palaniappan @ Thiyagarajan 3.Lakshmanan @ Singaram @ Sethu Lakshmanan and 4.Rajendran @ Muthappan and two daughters, namely, 1.Adaikammani @ Rukmani 2.Meenal @ Meenakshi. At the time of execution of this Will, his second son Palaniappan @ Thiyagarajan was not alive and he was shown as deceased. 46. As per clause 3(a) of this Will, he gave the trustees, power to manage and administer his interest in seven businesses. In clause (b), there is a direction to pay his two daughters, Rs.1,00,000/- each. Clause (c) di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed his wife RM.Thenammai and Valliappan @ Palaniappan @ Sinnavalieppan A/L Valliappa Chettiar jointly and severally to be executors and trustees of his Will. He directed his executors and trustees to pay and apply according to the Chettiar Community customs, such sum as the executors and trustees shall or in their absolute discretion think fit towards the marriage expenses, gifts and dowries of his daughter RM.Meenal. There is a direction to pay his daughters all the customary gifts and presents from time to time according to the customs of the Chettiar Community. Even after the demise of his wife R.M.Thenammai, there is a direction to the remaining executor and trustee Valliappan @ Palaniappan @ Sinnavalieppan A/L Valliappa Chettiar to give his two daughters a sum of Rs. 2,00,000/- each. He directed the executors/trustees to distribute all the jewelleries to his daughters, namely, M.Sornam and R.M.Meenal, subject to the payment of debts funeral and other testamentary expenses and estate and other duties. Then, he bequeathed all his properties, personal, real, movable, immovable whatsoever and wheresoever situate, which he may or might die possessed of unto his son RM Sethu abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... father and he got them under a will executed in the year 1912. It was held that father of a Joint Hindu family governed by Mitakshara law has full and uncontrolled powers of disposition over his self-acquired immovable property and his male issue could not interfere with these rights in any way. The Court while examining the question as to what kind of interest a son would take in the self-acquired property of his father which he receives by gift or testamentary bequest from him, it was held that Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants. It was held that it was not possible to hold that such property bequeathed or gifted to a son must necessarily rank as ancestral property. It was further held that a property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor. ........... 20. In view of the undisputed fact, that Ashabhai Patel purchased the property, therefore, he was competent to execute the will in favour of any person. Since the beneficiary of the wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and style of Palaniappan Bankers and Palaniappa Jewellers and the first defendant was liable to account for the provisions in the said business, no evidence is produced by either side to show the running of the businesses. Therefore, this Court finds answer to this issue in negative. 53. Issue Nos.5 6: The evidence available in this case shows that the plaintiff is not in physical possession of any of the suit properties. She resides in U.S.A. and conducts this case through her power of attorney PW1. There is also evidence to show that there are about 272 residential flats in item no.2 of the suit properties. Therefore, this Court finds that the plaintiff is not in possession of the suit properties and Court fee paid under Section 37 (2) of the Court fees Act claiming to be in joint possession is not correct for issue nos.5 6. 54. Additional Issue No.4: It is seen from Ex.D3 that item no.2 of the suit properties was sold to 8th defendant by 10 persons, who claim that they are sharers to this property as per Ex.D11 Will. Before purchasing this property, it is seen that Exs.D2, D10 paper publications were made in the newspaper. After purchasing item no.2 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The plaintiff has filed the suit presuming that the suit properties are joint family properties and as a co-owner, she is entitled for partition. She had issued Ex.P5 notice before the institution of the suit. There is no plea of ouster taken by the defendants. She has subsisting right as per Ex.D11 Will. Therefore, this suit cannot be held as barred by limitation. 58. Issue Nos.1, 2, 7 Additional Issue No.5: The learned counsel for the plaintiff submitted that apart from the claim of partition as co-parcener, the plaintiff is also entitled for partition as per clause 4(g) of Ex.D11 Will. It is true that in clause 4 (f) of Ex.D11 Will, there is a direction to divide the credit amount in favour of grand children, namely, R.M.Sornam, R.M.Sethu, R.M.Meenatchi, P.L.Sethu, P.L.Palaniappan @ Chinnathamby, P.L.Yegappan, L.Sornalatha and L.Sethu Rajah standing in the books of accounts of the business/es, wherein, L.P.L.Palaniappa Chettiar was having capital interest. However, there is absolutely no evidence produced in this case as to the capital interest of L.P.L.Palaniappa Chettiar that he had in his business/es. There is no details given in the share of the property, as well i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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