SAROJINI AMMA v. ABUBACKER — 1986 DIGILAW 219 (KER)

Judgment :- 1. Devaki, the mother of the appellant, had eight children including the appellant. Item No.l property was purchased in 1929 by Devaki and five of her children who were then alive. In 1951 Devaki took an assignment of item No.2 property in her name which is situated adjacent to the other item. Devaki died in 1958. Almost two decades after, in December 1977, all the children of Devaki except the appellant (Sarojini) had assigned their rights in the suit properties in favour of the plaintiff as per Exts.A3 and A4. The present suit for partition by metes and bounds has been filed by the plaintiff claiming that the plaintiff is entitled to 7/8 shares in the suit properties. 2. The defendant filed two written statements. The first ore is dated 26-6-1978 in which his main contention is that the right of the other members of the defendant's family had been orally assigned to the defendant in 1960 and he was put in absolute possession thereof and that the executants of Exts. A3 and A4 bad no right or title over the suit properties after 1960. It is further contended that the defendant got a certificate of purchase in respect of the jenmom right in the suit properties and the defendant has been enjoying them as the absolute owner. 3. In the second written statement filed by the defendant on 11-1-1979 she contended that Ext. Al acquisition was made by the defendant's father and it enured to the tavazhi consisting of Devaki and her children and item No. 2 was acquired in the name of his mother Devaki for the convenient enjoyment of the other item, and hence all the members of the tavazhi are now entitled to the suit properties. 4. The learned Sub-Judge did not accept the defendant's contentions. He found that item No.l was acquired by Devaki for herself and her children jointly and hence on the death of Devaki her rights devolved on her eight children. He has further found that item No.2 was acquired by Devaki alone and on Devaki's death her children became jointly entitled to it. Hence a preliminary decree for partition was passed by the court below declaring that plaintiff is entitled to 39/48 shares in item No. 1, and 1/8 share in item No. 2. The said preliminary decree is under challenge in this appeal. 5. Hence a preliminary decree for partition was passed by the court below declaring that plaintiff is entitled to 39/48 shares in item No. 1, and 1/8 share in item No. 2. The said preliminary decree is under challenge in this appeal. 5. The learned counsel for the appellant argued that as item No.l was acquired by Devaki and her children (who were alive then) there is a presumption, that the acquisition was for the tavazhi of Devaki and her children. Hence with the abolition of joint family system in the year 1976 all the members of the tavazhi became entitled to the property. Though this contention was raised in the court below it did not find favour with the learned Sub Judge whose line of reasoning is as follows: "There is no evidence on record to show that Devaki was not possessed of sufficient means to acquire this property. There is also no evidence to show that Devaki's husband was a man of means and that the consideration for Ext. A1 was paid by him. It has also to be noted that Ext. A1 is not a gift or a will by a marumakkathayee in favour of his wife or his wife and all the children. It is not an acquisition by a marumakkathayee male in favour of the above mentioned persons. As such a presumption regarding devolution of rights on a tavazhi cannot be drawn Ext.A1 purports to be an assignment by a marumakkathayee in favour of his niece and children. There is nothing in the document to indicate that the intention was to benefit the tavazhi constituted by the assignees and their descendants in the female line. It is seen that the consideration has been received from all the assignees jointly even though some of them are minors. All the assignees bad been conferred rights over the properties and they are to possess and enjoy the same. The value of improvements payable by the landlord in case of eviction has to be received by all of them jointly. In the face of these recitals contained in the document, it is futile for the defendant to contend that Ext. Al enures to the benefit of her tavazhi. The value of improvements payable by the landlord in case of eviction has to be received by all of them jointly. In the face of these recitals contained in the document, it is futile for the defendant to contend that Ext. Al enures to the benefit of her tavazhi. On a reading of Ext.A1, it is clear that the assignment was intended to benefit only the persons named therein" The learned Sub Judge rejected the plaintiff's case in respect of item No.2 on the ground that the said item was acquired by Devaki in 1951 which was long after the enactment of the Madras Marumakkathayam Act and also on the ground that there is no evidence to show that the acquisition was for the benefit of the tavazhi. The learned counsel for the appellant assailed the above reasoning of the learned Sub Judge on the strength of the following observations of Balakrishna Menon, J. in Lakshmi v. Anandan (ILR 1982 (2) Ker.377): "Once it is found that the acquirers constituted a natural group and form a tavazhi by themselves, there can hardly be any doubt that the acquisition should be presumed to be on behalf of the tavazhi." 6. The learned counsel for the plaintiff (respondent) has argued that such a presumption will not arise merely by reason of the acquisition being made in favour of a mother and her children even though they form a natural group, unless it is shown that the tavazhi had a nucleus to raise the consideration for the acquisition. The learned counsel for the appellant canvassed for reconsideration of the view of the learned judge in Lakshmi's case. A Division Bench of this Court as early as 1957 had taken the view that the existence of an original nucleus would not be essential and all that is necessary is, that the persons acquiring jointly should be the members of an undivided tarwad. (Karthyayini v. Parukutty, AIR 1957 Ker. 27). Koshi C.J. and Varadaraja Iyengar, J. in that decision held that: "Under Hindu Law, the presumption is that in the absence of evidence of an intention to the contrary, the acquisitions by the joint labour of persons constituting the members of a joint family living in commensality, are the joint family properties of such family. 27). Koshi C.J. and Varadaraja Iyengar, J. in that decision held that: "Under Hindu Law, the presumption is that in the absence of evidence of an intention to the contrary, the acquisitions by the joint labour of persons constituting the members of a joint family living in commensality, are the joint family properties of such family. The nature and incidents of tarwad property being identical with those of the joint Hindu family property in most respects, that rule of presumption must apply also to Marumakkathayam tarwads; the existence of an original nucleus is not essential and all that is necessary is, that the persons acquiring jointly stand in the relation of the members of an undivided tarwad. Such persons by living, messing and worshipping together and throwing all the property acquired jointly into on common stock manifest their intention to deal with one another and outsiders as members of an undivided tarwad". Their Lordships referred to an earlier decision in Ouseph v. Govinda Menon (XXVIII Cochin Law Report 9) in which a similar presumption was found to be justified. A single judge of the Madras High Court in Santhalingam v. Meenakshi Amma (1970 (2) M.L.J. 85) had occasion to consider the effect of an acquisition made by the members of a joint family. Palaniswamy, J. has stated as follows: "It is well settled that if members of a joint family, who ace joint in status and who either carry on business or by their joint efforts, earn and acquire property with such income, even without the aid of any ancestral nucleus, the presumption is that the property so acquired by them is joint family property in which the sons of the acquirers would get right by birth. But this presumption can be rebutted if it is proved that the acquirers intended to own the property as co-owners between themselves, in which case the property would be joint property as distinguished from joint family property. The presumption is in favour of regarding the property as joint family property." Thus there is weight of authority in favour of the view held by Balakrishna Menon, J. in Lakshmi's case. The principle of law has been correctly stated by the learned single judge and we concur with the same. 7. But the presumption mentioned above is certainly a rebuttable presumption. The Madras High Court in Santhalingam's case has stressed the rebuttability of the presumption. The principle of law has been correctly stated by the learned single judge and we concur with the same. 7. But the presumption mentioned above is certainly a rebuttable presumption. The Madras High Court in Santhalingam's case has stressed the rebuttability of the presumption. The rule of presumption is only to enable the court to place the burden of proof on the party concerned in judicial proceedings. Had Ext. Al contained sufficient indication to support one particular view, there would have been no need to rely on the presumption. But Ext.Al does not say that the acquisition is for the tavazhi or that its consideration proceeded from any other tavazhi property. There is no indication in the document to conclude either way. In such circumstances it will be useful to proceed from the stage of the presumption advened to above. 8. The learned counsel for the respondent contended that even assuming that there is such a presumption, the same has been well disproved by the facts and circumstances appearing in evidence in this case. Two sets of materials are sought to be relied on to rebut the said presumption. One set consists of Ext.A7 and Ext.A9 deeds of assignments executed by the brother and sister of the appellant in favour of the plaintiff in 1973 in which they made the plaintiff believe that they have only co-ownership rights in the property. The other set consists of the 1st respondent's conduct and declarations that his own right in the properties is only that of a co-owner. Ext.A6 is the reply notice which the 1st defendant issued to the plaintiff in which he stated without any qualification that the rights acquired as per Ext.Al are joint rights over item No.1 and on Devaki's death her children became co-owners of item No.2. The written statement filed by the 1st defendant dated 26-6-1978 contains his admission that the properties were enjoyed jointly and on the death of Devaki her rights also devolved on the other co-owners. How far those declarations or statements are admissible in evidence? Even if, they are found admissible, what is their probative value? 9. A passage from Snell's "Principles of Equity" will be of use in this context. (Page 185 of the 28th Edition). How far those declarations or statements are admissible in evidence? Even if, they are found admissible, what is their probative value? 9. A passage from Snell's "Principles of Equity" will be of use in this context. (Page 185 of the 28th Edition). Under the sub title "Rebutting the Presumptions" the learned author has stated thus: "The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration; subsequent acts and declarations are only admissible as evidence against the party who made them, and not in his favour" (In Shephard v. Cartwright, 1955 A.C. 431, the above passage has been cited with approval at page 445.) In Abdulla Ahmed v. Animendra Kissen Miner (A.I.R. 1950 S.C.15 page 21) the Supreme Court has stated that "extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning and that evidence of the acts done under it is a guide to the intention of the parties, particularly, when acts are done shortly after the date of the instrument". Mathew, J. in Godhra Elec. Co. v. State of Gujarat (A.I.R 1975 S.C. 32) quoted the above passage with approval. Their Lordships of the Supreme Court in the said case posed a question which appeared in Odgers' Construction of Deeds and Statutes (5th Edn. By Dworkin, pp. 118 and 119). That question is this: "Is the fact that the parties to a document, and particularly to a contract, have interpreted its terms in a particular way and have been in the habit of acting on the document in accordance with that interpretation, any admissible guide to the construction of the document?" The answer to the above question was given by the learned author that in the case of an unambiguous document the answer would be "no". But their Lordships after considering the above view had observed thus: "In the case of an ambiguous instrument, there is no reason why subsequent interpreting statement should be inadmissible. But their Lordships after considering the above view had observed thus: "In the case of an ambiguous instrument, there is no reason why subsequent interpreting statement should be inadmissible. Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning and evidence of the acts done under it is a guide to the intention of the parties, particularly, when acts are done shortly after the date of the instrument". 10. It follows from the above discussion that the statements or declarations made by the assignors of the plaintiff in Exts. A7 and A9 after a long interval of time (in 1973) from the date of execution of Ext. A1 in 1929, cannot be used as evidence to decide the point in issue in this case concerning the transaction covered by Ext. A1. But Ext. A6 reply and the admissions made by the 1st defendant in his first written statement stand on a different footing. As those declarations or statements are contrary to his present stand they are admissible in evidence and can be used for deciding the point at issue. Thus the evidence shows that the 1st defendant himself has treated the properties acquired under Ext. Al as co-ownership properties. This means that the presumption stands rebutted and Ext. Al cannot be treated as an acquisition made for the tavazhi. We, therefore, hold that Devaki and her children were co-owners over item No.1 and on Devaki's death her rights had devolved on her children. For the aforesaid reasons, the preliminary decree needs no interference. We, accordingly, dismiss this appeal, without any order as to costs.