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Madras High Court · body

2000 DIGILAW 800 (MAD)

Kanakaraj v. Sivakozhundu & Others

2000-08-10

K.NATARAJAN

body2000
Judgment : 1. For the sake of convenience, the parties will be referred to as per their rank in the trial court. The first defendant, Kanagaraj has preferred the second appeal against the concurrent findings of both the Courts below. 2. Theshort facts are: Defendants 1 to 4 are the sons of one Manickka Gounder. Manickka Gounder owned 0.72 cents of land at Periya Babu Samuthiram Village by inheritance. The subject matter of the suit is Survey Nos.129/1 - 0.19 cents, 129/9 - 0.20 cents and 141/2 -0.3 1/2 cents, totalling 0.42 1/2 cents. According to the plaintiff the said property of 0.42 cents had been purchased from out of the income derived from the joint family land of 0.72 cents owned by Manickka Gounder. It is also his case that apart from the 0.72 cents, the joint family was owning cows and sheep and income was derived from that also. He had purchased the undivided 3/4th share of defendants 2 and 3 and another brother under the sale deeds, Exs.A.3 and A.2 respectively. The suit properties have been mortgaged to the fifth defendant and under the sale deeds, Exs.A.2 and A.3, he is liable to discharge the said mortgage. It is also alleged by the plaintiff that it is not the exclusive property of the first defendant as claimed by him. Therefore, it became necessary for him to file the suit for redemption of the mortgage and also for partition and separate possession of his 3/4th share in the suit properties. 3. The first defendant resisted the suit stating that 0.72 cents owned by his father Manickka Gounder was, only a rain fed land and it yielded no income. According to him, he purchased the suit properties from one Panchali Ammal under Ex.B.7, dated 20.7.1962 for Rs.600 out of his own income, and his brothers have no share or right in the same and, hence, the plaintiff cannot get any right either to redeem the mortgage or to have the property partitioned. 4. According to him, he purchased the suit properties from one Panchali Ammal under Ex.B.7, dated 20.7.1962 for Rs.600 out of his own income, and his brothers have no share or right in the same and, hence, the plaintiff cannot get any right either to redeem the mortgage or to have the property partitioned. 4. The learnedDistrict Munsif, Villupuram who tried the suit, on a consideration of the evidence placed before him, both oral and documentary, and for the reasons assigned by him, reached the conclusion that the suit properties are the joint family properties of D.1 and his brothers D.2 to D.4, and each of them have got one-fourth share and the plaintiff is entitled to the reliefs prayed for by him in the suit and decreed the same. 5. Aggrieved by the said judgment and decree of the trial Court, the first defendant preferred A.S.No.76 of 1987 on the file of the Subordinate Judge, Villupuram. The learned first Appellate Judge, on a re-appraisal of the evidence, concurred with the reasoning of the learned District Munsif, confirmed the judgment and decree and dismissed the appeal, which has given rise to the present second appeal. 6. Thelearned counsel for the appellant submitted though both the Courts below have concurrently found that the suit properties are the joint family properties of defendants 1 to 4, they have gravely erred in reaching the said conclusion. It is submitted that both the Courts have not appreciated the evidence from the proper angle. The substantial question of law that was urged before me is whether both the Courts below have not properly looked into the evidence, especially the recitals in the mortgage deed, Ex.A.1e Ex.A.1 is the xerox copy of the mortgage deed executed by defendants 1, 3 and 4 in favour of the fifth defendant, dated 9. 1977. The other brother, Selvaraj is not a party to the said document, Ramalingam, one of the brothers who has singed the mortgage deed is no more. Ex.A.1 has been filed by the plaintiff and, therefore, he cannot dispute the recitals in the said document. In Ex.A.1, it is recited the property mortgaged is the self-acquired property of the first defendant. The learned counsel for the appellant submitted, the above mentioned recitals in Ex.A.1 had not been looked into by both the Courts below and they have completely ignored the same, which resulted in miscarriage of justice. In Ex.A.1, it is recited the property mortgaged is the self-acquired property of the first defendant. The learned counsel for the appellant submitted, the above mentioned recitals in Ex.A.1 had not been looked into by both the Courts below and they have completely ignored the same, which resulted in miscarriage of justice. 7. The learned counsel for the respondent/plaintiff argued, it is no doubt true such recitals are available in Ex.A.1, however, there are other circumstances to establish the property owned by Manickka Gounder, namely 0.72 cents, was yielding income. Further, the joint family owned several cows and sheep. The milk and the sheep were sold and there was good income for the joint family. It is urged, taking advantage that he is the eldest member of the family, the first defendant had introduced such recitals in Ex.A.1 to gain advantage over his brothers and to cheat them. It is also stated that it is conventional to make such recitals in a document when the other brothers are young. It is also brought to my notice that though D.1 would claim that he was working in a sugar factory and was getting salary income, which he utilised for purchasing the suit properties, he had produced documents only in the name of Subramani to support the above, whereas his name is only Kanakaraj. On a careful analysis of the documents filed on behalf of the first defendant, I am convinced that all the documents filed are only in the name of Kanakaraj and there is no evidence, much less connecting evidence, to show that the first defendant had an alias name ‘Subramani’. Therefore, I find it difficult to accept the submission put forward on behalf of the first defendant that he had an alias name and in the sugar mill he is known by the name Subramani. However, that will not militate the case of the first defendant. It is important to bear in mind that the purchaser, namely, the plaintiff had not examined his vendors D.3 and D.4 to support his case that the joint family land of 0.72 cents had irrigation facility and it was yielding income. D.3 and D.4 remained ex parte and no steps had been taken by the plaintiff to summon them as witnesses and examine them to lend support to his contentions. D.3 and D.4 remained ex parte and no steps had been taken by the plaintiff to summon them as witnesses and examine them to lend support to his contentions. The case of the plaintiff rests only on the oral evidence adduced by him and that of P.W.1. Though P.W.1 had stated that the family consisting of D.1 to D.4 had 10 cows, and 300 sheep, his evidence is not corroborated by P.W.2 in all the details. Both P.Ws.1 and 2 were unable to give any details as to the income derived from selling the milk or by selling the sheep. Except the ipse dixit of P.Ws.1 and 2, no details are available to reach the conclusion that the joint family owned several cows and sheep, which yielded income. The fact that 0.72 cents of land owned by Manickka Gounder, the father, is a rain-fed land is admitted. Though it is alleged on behalf of the plaintiff that a motor was installed and, thereafter, the said land yielded sufficient income, the evidence shows that the first defendant alone had borrowed amount from the Canara Bank and installed the motor and the other brothers are not parties to the said borrowing. 8. There is no presumption in law that the property is a joint family property, unless it is proved by sufficient evidence that the joint family owned certain properties which yielded sufficient income to purchase other properties. It is unfortunate that both the Courts below have not carefully read the recitals in Ex.A.1 to the effect that the first defendant is the exclusive owner of the suit properties and defendants 3 and 4 have no right in the same. The above admission by defendants 3 and 4 had not been explained or they have been examined as witnesses. Further, none of the relatives of the first defendants family has been examined to prove that the joint family owned cows and sheep and the joint family land was yielding income and from out of the said income only, the suit properties have been purchased. 9. For the reasons stated above, I am of the view that both the Courts below have erred in reaching the conclusion that the suit properties are joint family properties of the first defendant and his brothers. 9. For the reasons stated above, I am of the view that both the Courts below have erred in reaching the conclusion that the suit properties are joint family properties of the first defendant and his brothers. On the other hand, the evidence on record proves that it is the self-acquired property of the first defendant and defendants 2 to 4 have no right or share in the same and the plaintiff the purchaser does not derive any right either to redeem the mortgage in favour of the fifth defendant or to get a partition of his 3/4th right and the concurrent findings of both the Courts below have to be reversed. 10. In theresult, the second appeal is allowed and the judgment and decrees of both the Courts below are set aside and the suit is dismissed. However, there will be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed.