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2000 DIGILAW 532 (MAD)

Dhandapani v. Palanisamy Gounder & Another

2000-06-06

B.AKBAR BASHA KHADIRI

body2000
Judgment : 1. This case before both the courts below, has come forward with the instant second appeal. 2. This second appeal has arisen in this way: One Palani Gounder had three sons, by name, Perianna Gounder, Ramaswamy Gounder and Subbaraya Gounder. The plaintiff Palanisami Gounder is the son of Subbaraya Gounder. Defendants 1 and 2 are the sons of the plaintiff. According to the plaintiff, the suit properties are joint properties of his father Subbaraya Gounder and his brother Perianna Gounder. Perianna Gounder was a bachelor. He had executed a registered Will dated 5. 1938, wherein he had bequeathed the suit properties and certain other extent to the plaintiff herein. The plaintiff has executed a settlement deed and gifted two acres of land in S.No.402 to his daughter. Now, he is trying to dispose of a portion of the properties for the purpose of celebrating the marriage of his daughter, whereas the defendants who have no right, title or interest, claim title to the properties and attempt to commit trespass upon the properties, which made the plaintiff to institute the suit in O.S.No.392 of 1982 on the file of the District Munsif, Dharapuram for the relief of declaration of his title and for permanent injunction. The suit was subsequently transferred to the file of the District Munsif, Kangeyam, who took the same on file in O.S.No.64 of 1985. .3. The first defendant filed written statement contending that the Will dated 5. 1938 is not a genuine Will. The properties comprised in the Will are all joint family properties, with respect to which one of the members of the joint family, namely, Perianna Gounder has no locus standi to execute the Will. The properties are treated only as joint family properties, and therefore, the plaintiff is estopped from claiming that it is his self-acquisition. The plaintiff has thrown the property in the common hatchpot and therefore, the property has lost the character of joint family property. The defendants are in possession of the properties, and therefore, injunction could not be granted. 4. Thesecond defendant remained absent. 5. The plaintiff has thrown the property in the common hatchpot and therefore, the property has lost the character of joint family property. The defendants are in possession of the properties, and therefore, injunction could not be granted. 4. Thesecond defendant remained absent. 5. The trial court framed as many as ten issues, and after enquiry, came to the conclusion that of the three brothers, Ramaswamy Gounder got separated long back and such separation has brought in a division in status between the other two brothers, that the other two brothers, namely, Perianna Gounder and Subbaraya Gounder had jointly purchased the properties in question as self-acquisition, that Perianna Gounder was a bachelor and he had bequeathed his his share in that property to the plaintiff Palanisami Gounder, and that the defendants have no title or interest in the properties, and accordingly, decreed the suit. 6. Aggrieved by the judgment of the trial court, the first defendant preferred an appeal in A.S.No.8 of 1987 on the file of the Sub Judge, Dharapuram. The learned Sub Judge concurred with the findings of the trial court and held that both Perianna Gounder and Subbaraya Gounder are not coparceners, but only coowners of the properties and as a co-owner, Perianna Gounder had the rights to make a testamentary disposition of his share in the properties, by which the plaintiff can acquire the title and accordingly dismissed the appeal. Aggrieved by the findings of the first appellate court, the first defendant has come forward with the instant second appeal. 7. The pivotal point that arises for consideration as framed by Bhaskaran, J. is whether the suit property is are self-acquisition of the plaintiff or joint family properties of Perianna Gounder and the plaintiff, and if so, whether Perianna Gounder would alienate the same under a testamentor if disposition. 8. Heard both the sides. It would be useful to recall the salient features of the Hindu Law in this regard. I feel, it is not necessary to refer to any authorities to recall the settled principles. There are: Unless the contrary is proved, the presumption is, every Hindu family is joint in food, worship and estate. This presumption is stronger in case of brothers than in case of cousins. Because the family is joint, there is no presumption that a Hindu joint family possesses properties. There are: Unless the contrary is proved, the presumption is, every Hindu family is joint in food, worship and estate. This presumption is stronger in case of brothers than in case of cousins. Because the family is joint, there is no presumption that a Hindu joint family possesses properties. The burden of proving that a Hindu joint family possesses properties is on the party who claims so. When a joint family is found to be in possession of nucleus sufficient to make acquisition, then a presumption arises that the acquisition standing in the name of the person who was in the management of family properties, family acquisition. 9. In the instant case, it is evident that the original common ancestor Palani Gounder, namely, the grandfather of the plaintiff herein, had sufficient properties. But, there is no evidence available to establish that the suit properties are the ancestral properties. According to the appellant, the suit properties were acquired from and out of the joint family nucleus. .10. In the instant case, though the appellant had pleaded that the family possesses of sufficient nucleus, there is no evidence to establish that nucleus was capable of yielding surplus income for the joint family members to acquire the suit properties. Further, the presumption that the family is joint, vanishes, once when it is established that there had been severance in status. Careful perusal of the records would go to show that of the three brothers, Ramaswamy Gounder got separated prior to 1917. The appellant/first defendant has admitted that Ramaswamy Gounder left the family and settled at Tiruppur. The fact that Ramaswamy Gounder has left the family prior to 1917 is established by Exs.A-9 and A-10 documents. Under Ex.A-9, only Periyanna Gounder and the first respondent/plaintiffs father Subbaraya Gounder had purchased 5.67 1/2 acres in Survey No.482 from one Muthusamy Gounder. So also they have obtained 4.36 acres in Survey No.481 by way of exchange the original of Ex.A-10 Deed dated 10. 1917,. whereunder they have given 3.4 1/2 acres in Survey No.446 and 1.20 1/2 cents in Survey No.445 to one Nallaiya Gounder in exchange for the said 4.36 acres in Survey No.481. If really, Ramaswamy Gounder had also remained as a member of the family, certainly, he would have joined in the purchase and exchange along with his brothers. 1917,. whereunder they have given 3.4 1/2 acres in Survey No.446 and 1.20 1/2 cents in Survey No.445 to one Nallaiya Gounder in exchange for the said 4.36 acres in Survey No.481. If really, Ramaswamy Gounder had also remained as a member of the family, certainly, he would have joined in the purchase and exchange along with his brothers. Anyway, it is not in dispute that Ramaswamy Gounder had become separated prior to 1917. 11. It should not be lost sight of that a partition may be partial as regards the properties and it may also be partial as regards the persons. When once coparcenar separated from others, a question arises whether latter are to be deemed to be joint, united or separated. This question has been set at rest by the pronouncement of the Judicial Committee and the Apex Court. The decisions laid down that the general principle is that every Hindu family presumed to be joint, unless the contrary is proved. This presumption however does not continue after one member has separated from others. There is no presumption when one coparcenar separated from others that the latter remained united. An agreement amongst the remaining members of the joint family to remain united or to reunit must be proved by the person who claims such reunion. In the instant case, the exodus of Ramaswamy has brought about severance in status between the brothers and therefore, until reunion is established, it cannot be presumed that the other two brothers, namely, Perianna Gounder and Subbaraya Gounder remain as joint family members. But the negative aspect is established by the recitals in Ex.A-10, whereunder, they have claimed that the properties which they offered for exchange to Nachimuthu, are their separate properties. Further, Perianna Gounder has left behind a Will dated 5. 1938 bequeathing his share (his common half share) to the plaintiff/first respondent herein. This has been accepted and acknowledged by Subbarayan Gounder, the other brother, as per the recital in Ex.B-3. Thus, the evidence on record would show that the brothers have acquired properties under Exs.A-9 and A-10 as co-owners. Once they are co-owners, absolutely there is no bar for one co-owner to dispose of his property in any manner he likes by way of testamentary disposition. Thus, the evidence on record would show that the brothers have acquired properties under Exs.A-9 and A-10 as co-owners. Once they are co-owners, absolutely there is no bar for one co-owner to dispose of his property in any manner he likes by way of testamentary disposition. Both the courts below have sifted the evidence properly and they have come to the conclusion that the properties in dispute are the separate properties of Perianna Gounder and Subbaraya Gounder, and that Perianna Gounder had bequeathed his half share to the first respondent/plaintiff. 12. Again, it is the case of the appellant/first defendant that the suit properties are thrown in the common hotchpot and those properties have acquired the character of joint family properties. Here again, it should be pointed out whether there was a hotchpot containing other properties for these properties to be thrown into the common hotchpot. Further, to establish such change of character, the appellant has to prove that Perianna Gounder had the intention to put the properties in the common hotchpot. The very fact that Perianna Gounder had left behind a Will by itself would go to show that Perianna Gounder has not thrown it into the common hotchpot. It cannot be said that the plaintiffs father has thrown the properties in the common hotchpot. As per the Will, the properties are to devolve upon the first respondent/plaintiff and the plaintiffs father is only a custodian of the same till the first respondent/plaintiff attains majority. Even considering the possibility whether the plaintiffs father has thrown these properties into the common hotchpot, the very fact that the plaintiffs father had alienated the other half share in Survey No.481 to one Nachimuthu and another under Ex.A-13, dated 28. 1952 by itself would go to show that even the plaintiffs father had no intention of throwing the properties in the common hotchpot. The plea of the appellant/first defendant in this regard also fails. I am satisfied that both the courts below have rightlyy come to the conclusion that after the exit of Ramaswamy Gounder, Perianna Gounder and Subbaraya Gounder had acquired title to the suit properties as co-owners and Perianna Gounder had bequeathed his share to the respondent/plaintiff herein. The Will is of the year 1938. The due execution and attestation have been proved by examining the attestor as P.W.2. The Will is of the year 1938. The due execution and attestation have been proved by examining the attestor as P.W.2. I do not find any error apparent involving any question of law in the instant appeal. This second appeal is accordingly dismissed with cost of the respondents herein.