Ramaswami Iyer v. Subramonia Pillai — 1961 DIGILAW 338 (KER)

JUDGMENT T.K. Joseph, J. 1. The decree which has given rise to this appeal was one allowing a suit by two plaintiffs for the cancellation of an order dismissing claims to property attached before judgment in O. S. No. 98 of 1956 of the Subordinate Judge's Court of Parur. The second plaintiff is the first plaintiff's daughter's son in whose favour the former had gifted a portion of the attached property. O. S. No. 98 of 1956 was a suit instituted by the first defendant against the third defendant, one of the sons of the plaintiff. The first defendant attached the interest of the third defendant in the two items of immovable property, alleging that the same belonged to the joint family of the first plaintiff and his sons, including the third defendant. The two plaintiffs filed separate claims which were dismissed by the order, Ext. P. 5. This suit relates to one of the items attached. According to the plaintiffs, this property did not belong to the joint family but was the separate property of the first plaintiff. The first defendant's contention was that the property was acquired the name of the first plaintiff with joint family funds and that in any event the first plaintiff had allowed the same to mingle with joint family property so that it became impressed with the character of joint family property. Overruling these contentions the suit was decreed; hence this appeal by the first defendant. 2. The points raised in appeal are (1) that the plaint property belongs to the joint family and (2) that even if it was originally the separate property of the first plaintiff, it had become joint family property before the date of attachment. 3. Before considering these points, a few facts may be stated. The property in dispute was acquired by the first plaintiff under Ext. P. 1 dated 14-6-1014. The admitted items of joint family property were those obtained under Ext. P. 2, a deed of settlement dated 12-2-1081 executed by the first plaintiff's father. Ext. P. 2 provided that the first plaintiff's father was to be in possession of the properties till his death. He died only in the year 1087., The question whether the property was acquired with the aid of funds belonging to the family has to be considered in the light of these facts. 4. The consideration paid under Ext. Ext. P. 2 provided that the first plaintiff's father was to be in possession of the properties till his death. He died only in the year 1087., The question whether the property was acquired with the aid of funds belonging to the family has to be considered in the light of these facts. 4. The consideration paid under Ext. P. 1 was Rs. 850/-. The first plaintiff was a junior member at the time of the acquisition of the property and he was not in possession of joint family property. The 1st point must be decided in the light of the decision of the Supreme Court in Srinivas v. Narayan (AIR 1954 S. C. 379). In order to draw the presumption that an acquisition of property is for the joint family, the existence of a nucleus of joint family property out of which the plaint property could have been acquired has to be established. There is no reliable evidence that there was surplus income from the joint family properties which could be utilised for this purpose. P. W. 2 who was one of the executants of the sale deed Ext. P. 1, stated that consideration for the sale was paid by the first plaintiff. The first plaintiff who was examined as P. W. 3 has sworn that he made the acquisition with his own funds. The first defendant has not adduced any independent evidence on this point. He admitted that he had no direct knowledge about the purchase of the property in the first plaintiff's name. The mere fact that the first plaintiff's children were also residing along with him is insufficient to hold that the property was acquired for the family. As regards the building in the property also, there is no satisfactory evidence that it was built with family funds. P. W. 3 deposed that the house was built before his father died and that the sum of Rs. 1,100/- directed to be paid to him under Ext. P. 2 has not been paid. The finding of the learned Judge that the property was the separate property of the first plaintiff must therefore be affirmed. 5. The second question is whether the first plaintiff put this property into common stock so that it became impressed with the character of family property. P. 2 has not been paid. The finding of the learned Judge that the property was the separate property of the first plaintiff must therefore be affirmed. 5. The second question is whether the first plaintiff put this property into common stock so that it became impressed with the character of family property. It is settled law that if a coparcener voluntarily throws his separate property into the common stock with the intention of abandoning all separate claims to it, then it becomes joint family property with all its usual incidents. The law on the subject has been summarised by Mulla, in his treatise on the Principles of Hindu Law: "Property which was originally the separate or self acquired properly of a member of a joint family may become joint family property, if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it. A clear intention to waive his separate rights must be established, and it will not be inferred from the mere fact of his allowing the other members of the family to use it conjointly with himself nor from the fact that the income of the separate property was used to support a son nor from the mere failure of a member to keep separate accounts of his earnings. So also acts of generosity or kindness should not be construed as admissions of legal obligation. Separate property thrown into the common stock is subject to all the incidents of joint family property". These principles are stated by Raghavachariar, in his commentary on Hindu Law, in these terms : "The onus of proving such blending or throwing the separate property into the joint stock, is however, on the person alleging it and cannot be held to be discharged by the mere proof of the existence of a common till or a common bank account if the accounts are clearly kept and there is no confusion of incomes. Nor can such a blending by a father of his separate property with the family property be held to be established merely from the fact that he associated with himself his son and his grandson in the execution of a mortgage deed in respect of that property, where for instance, such association is due to the insistence thereon by the mortgagee for his better security and by way of abundant caution. It has Been also he'd, that from the mere fact that a coparcener has built out of his self acquisition a pucca building on the family site, or has used the income of his self acquired property for the purposes of the family or has even purchased property in the name of his son, it cannot be inferred that he has abandoned his exclusive claim to the building or the property so as to make it joint family property. Apart from the question of blending deducible from the conduct of the parties, there is another mode by which separate property may be impressed with the character of joint family property, namely, where a coparcener who has made a self acquisition declares that that property is joint family property, then that property partakes of the character of ancestral property unless the words are incapable of that construction or represent only a future intention not yet given effect to". The evidence relied on by the appellant in support of the pica of blending has to be considered in the light of the principle stated above. The appellant relied on transactions entered into by the first plaintiff in respect of this property. 6. Ext. D1 is a deed of simple mortgage executed by the first plaintiff and his sons in favour of Vijayalakshmi Bank Limited, Parur, on 23-12-1121. The plaint property and four items of immovable property owned by Kannu Pillai, one of the sons of the first plaintiff, were given as security for overdraft accommodation, which was to be operated by Kannu Pillai. The plaint property which is item 1 in Ext. D1 is described as having been purchased by him under a deed, No. 1834 of 1084, and as one in which improvements were made and buildings erected. Items 2 to 5 are stated to have been acquired by Kannu Pillai. The description of item 1 would suggest that the first plaintiff had not abandoned his ownership to the same although it was given as security for the overdraft. All that can be said in favour of the appellant is that the first plaintiff and all his sons joined in the execution of the deed. This is insufficient to cloak the property with the character of joint family property. 7. The next document is Ext. D2, a second mortgage in favour of Vijayalakshmi Bank Limited, Parur, executed on 10-8-1122. All that can be said in favour of the appellant is that the first plaintiff and all his sons joined in the execution of the deed. This is insufficient to cloak the property with the character of joint family property. 7. The next document is Ext. D2, a second mortgage in favour of Vijayalakshmi Bank Limited, Parur, executed on 10-8-1122. The only item of property included in Ext. D2 is the plaint property. The first plaintiff and all his sons have jointly executed the deed. As stated earlier this is insufficient to hold that it was treated as joint family property. The plaint property is described in Ext. D2 also as property acquired by the first plaintiff. It may be noted that at least three of the sons had separate acquisitions in their names at that time and that all of them undertook personal liability for the debt. The fact that the sons were also associated with the first plaintiff in the execution of the deed can be explained by the fact that they all agreed to be liable for the debt. 8. The next transaction is Ext. P. 3, a deed of gift by the first plaintiff to his daughter's son, the second plaintiff, made on 17-11-1123. 37 cents out of the plaint property were given to the second plaintiff under Ext. P. 3. The first plaintiff treats the plaint property as his separate property in Ext. P. 3 and deals with it as such. This is an indication that he had not abandoned his rights therein, till that date. There are later transactions which show that the sons acquiesced in Ext. P. 3. Ext. D5 dated 12-6-1950 is a deed of mortgage executed by the first plaintiff, his sons and the second plaintiff in favour of the first defendant. Item 1 in Ext. D5 is the plaint property and item 2 is joint family property obtained under Ext. P. 2. The area gifted to the second plaintiff is described as belonging to him by virtue of the deed of gift. Ext. D5 also does not indicate abandonment by the first plaintiff of his absolute rights to the plaint property which is described as having been acquired by him while item 2 is described as having been obtained under Ext. P. 2. Ext. D5 also does not indicate abandonment by the first plaintiff of his absolute rights to the plaint property which is described as having been acquired by him while item 2 is described as having been obtained under Ext. P. 2. It is not clear whether the clause stating that possession was with all the executants applies to item 1 or item 2. Whatever that be, it is clear that Ext. D5 is a carelessly drafted document because item 2 which admittedly is joint family property is described as one in which the first plaintiff has full ownership. There is also the fact that the second plaintiff is one of the executants of Ext. D5. He could join in the execution only on the strength of the gift deed, Ext. P. 3, which indicates that the sons acknowledged the father's right to deal with item 1. The first defendant accepted Ext. D5 and this shows that he too recognised the right of the second plaintiff. Ext. D5 no doubt states that what was mortgaged was the right of the executants to the mortgaged properties. In view of the facts stated above, this can apply only to item 2. On 2361950 Krishna Pillai, one of the sons of the first plaintiff, executed a deed of release relinquishing his rights in the properties included in the deed, in favour of his brothers and father. Item 1 in Ext. D10 is the plaint property and item 2, the property obtained under Ext. P. 2. It was urged on behalf of the appellant that by accepting Ext. D 10, the first plaintiff acknowledged that his sons also had some right to the property included in the deed. A significant feature of Ext. D10 is that the portion of item 1 gifted to the second plaintiff was excluded in the deed which shows acknowledgement of the first plaintiff's right to deal with the property. Ext. D10 was produced for registration by Kannu Pillai, the eldest son of the first plaintiff. The first plaintiff does not appear to have been associated with the execution of the deed at that time. It is convenient at this stage to refer to a similar deed of release, Ext. D9, dated 10121951, executed by Krishna Pillai and Kannu Pillai, sons of the first plaintiff. Ext. The first plaintiff does not appear to have been associated with the execution of the deed at that time. It is convenient at this stage to refer to a similar deed of release, Ext. D9, dated 10121951, executed by Krishna Pillai and Kannu Pillai, sons of the first plaintiff. Ext. D9 is in favour of the other brothers and father and it was produced for registration by Kannu Pillai. The appellant relies on the fact that in the later sale deed, Ext. D6, executed by the first plaintiff and his sons, other than Krishna Pillai, on 14111951, reference was made to Ext. D10. It is argued that Ext. D10 must therefore have been executed with the knowledge of the first plaintiff. Ext. D6 was in respect of 3 acres 22 cents out of the property obtained under the settlement deed, Ext. P. 2, which admittedly was joint family property. Krishna Pillai did not join in the execution of Ext. D6, and Ext. D10 had necessarily to be referred to on account of this. Ext. D6 is not conclusive to show that the first plaintiff was aware of the execution of Ext. D10 on the date it was executed. 9. Ext. P. 6 is another transaction relied on by the appellant. It is an usufructuary mortgage deed executed by plaintiffs 1 and 2 and all the sons of the first plaintiff in respect of the plaint property which is described as one acquired by the first plaintiff and in his possession. The gift deed in favour of the second plaintiff is also referred to. The argument of the appellant is that the sum of Rs 9000/- obtained under Ext. P. 6 was utilised for the discharge of family debts. The fact that the separate property of a coparcener is mortgaged by such coparcener along with other coparceners for meeting common purposes is insufficient to lead to an inference of blending of such property with joint family properly. 10. The subsequent dealings with the property referred to above do not evidence either a consistent or a uniform declaration regarding the nature of the property. While the separate character of the property is stressed in some of the deeds, there is the fact that the sons were also associated with the execution of deeds relating to the property and that consideration thus received was utilised for joint family purposes. While the separate character of the property is stressed in some of the deeds, there is the fact that the sons were also associated with the execution of deeds relating to the property and that consideration thus received was utilised for joint family purposes. As pointed out earlier an intention to waive must be clearly established and will not be inferred from the mere fact of the first plaintiff allowing the other members of the family to use it jointly with himself. It is also seen from these transactions that long before the present dispute started, the sons had acknowledged the father's right to deal with the property and executed a gift deed in respect of a portion of the same. Thus the evidence is insufficient to hold that the property, even though it was originally the separate property of the first plaintiff, ever acquired the character of joint family property. 11. Reference has to be made to an alleged admission by the first plaintiff that the plaint property belonged to the joint family. This admission is stated to be contained in Ext. D4, copy of the written statement filed by the first plaintiff as third defendant in O. S. No. 66 of 1951 of the District Court of Parur. The plaint in O. S. No. 66 has not been filed and the nature of the case cannot be fully gathered from Ext. D4 alone. There was an appeal to the High Court as A. S. No. 389 of 1955 E from the decree in that case. It is seen from Ext. D4 and the judgment that O.S. No. 66 was for recovery of money due under a simple mortgage executed by the first defendant in that suit who was one of the sons of the first plaintiff. The position taken in Ext. D4 was that the joint family had joint business and trade, that the first defendant had acquired the mortgaged property with the income of such business, that the property thus belonged to the joint family and that the first defendant was not competent to execute the mortgage deed. In paragraph 6 of Ext. D4 it was stated that money had been borrowed for the business from Vijayalakshmi Bank on the security of joint family property. Reference has been made earlier to the two deeds, Exts. In paragraph 6 of Ext. D4 it was stated that money had been borrowed for the business from Vijayalakshmi Bank on the security of joint family property. Reference has been made earlier to the two deeds, Exts. D1 and D2, to Vijayalakshmi Bank and that the plaint property was included in both the deeds. The other properties which were included in Ext. D1 belonged to Kannu Pillai, one of the sons of the first plaintiff. Yet another admission relied on by the appellant is that is contained in the deposition, Ext. D8, given by the first plaintiff in the claim enquiry which preceded this suit. He is seen to have stated therein: xxx (I obtained release from two of my sons of their rights in the family. The release deeds referred to are Exts. D9 and D10, in which the plaint property is also included. The effect of these admissions have to be considered. 12. An admission does not conclude the party making it unless the person to whom it is made has acted on its faith. It is open to a party against whom the admission is sought to be proved to show that the facts alleged to be admitted are not correct or that the same were made as a result of mistake or ignorance. In Venkatapathi v. Venkatanarasimha ( AIR 1936 PC 264 ) Shadi Lal J. observed: "It sometimes happens that persons make statements which serve their purpose or proceed upon ignorance of the true position; and it is not their statements, but their relations with the estate, which should be taken into consideration in determining the issue. The vital factor in a case of this kind is the nature of the interest which the members of the family have in the estate." In Narayanan v. Krishnan Venki (AIR 1955 Travancore - Cochin 199) Subramonia Iyer J. held : "An admission does not conclude the party making it. He is entitled to explain it unless the person to whom it is made has acted on its faith which would preclude the author from going back on it and speaking the truth on the principle of estoppel. Such a plea is not raised in this case. An admission of a person will not operate to deprive him of his rights nor will it confer title upon another." The plea put forward in Ext. Such a plea is not raised in this case. An admission of a person will not operate to deprive him of his rights nor will it confer title upon another." The plea put forward in Ext. D4 was found to be false and it was therefore a false statement made to strengthen the contention that the property involved in that suit belonged to the joint family. It may be pointed out that the plaint property was not the subject matter of that suit. So far as the admission in Ext. D8 is concerned it is partially correct because the two sons who executed Exts. D9 and D10 surrendered their interest in joint family property obtained under Ext. P. 2. The release deeds are also referred to in the sale deed, Ext. D6, which was in respect of joint family property. It would appear that the first plaintiff was under the impression that the release deeds related only to joint family property. It is not clear from the deposition of the first plaintiff in this case whether only one sentence in Ext. D8 was marked as Ext. D8(a) in this case. If the line drawn in the margin of Ext. D8 (pages 5 and 6) is the portion marked as Ext. D8(a) he is seen to have stated even at that time that he was not aware of the release of any interest in the plaint property by the sons and that he knew of the execution of the deeds only later, from his sons. In these circumstances there is nothing conclusive in the so-called admissions so as to lead to the conclusion that the plaint property belonged to the family. We do not therefore see any reason to differ from the view taken by the Trial Court. The appeal must therefore fail. 13. Plaintiffs 1 and 2 who are respondents 1 and 2 have preferred a memorandum of cross objections relating to costs disallowed in the lower court. Reasons have been given by the learned Judge for disallowing costs and there are no grounds for interfering with the discretion exercised by the Trial Court in refusing plaintiffs 1 and 2 their costs. 14. In the result, we confirm the decree of the court below and dismiss the appeal and the memorandum of cross - objections with costs.