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2000 DIGILAW 904 (MAD)

Muthusamy & Others v. Meenakshi Sundaram

2000-09-08

V.KANAGARAJ

body2000
Judgment : 1. Thedeceased sole defendant to the suit U.Muthu Udayar having been substituted by his legal representatives in the trial court itself, have filed the above second appeal against the judgment and decree dated 1. 1998 made in A.S.No.23 of 1997 by the Court of Subordinate Judge, Sivaganga thereby setting aside the judgment and decree dated 20.11.1995 made in O.S.No.152 of 1991 by the Court of District Munsif, Manamadurai. 2. Tracing the history of the case, it is the respondent herein who has filed the suit in O.S.No.152 of 1991 on the file of the Court of District Munsif, Manamadurai praying for declaration of his title to the suit property and for permanent injunction restraining the deceased first defendant from in any manner interfering with his peaceful possession and enjoyment of the suit property and for costs thereby pleading that the grandfather of the plaintiff and the deceased first defendant viz., Sarakku Khatha Nadar had some ancestral properties and self-acquired ones; that their father viz., Udayar was leading a wayward life whose son is the deceased first defendant, but since the mother of the deceased first defendant passed away in two years after her marriage with the said Udayar, he married another Meenakshi through whom the plaintiff was born; that their father was also having illicit intimacy with one Unnamalai to whom a female child viz., Muthammal was born; that thereafter, the plaintiff along with his mother and the deceased first defendant were living as one and the same family at Alambacherry and the said Unnamalai and her daughter Muthammal were living separately at Kochadai village. 3. 3. The further pleadings of the plaint are that when the plaintiff was seven years old, his grandfather, from out of his self-earned money, purchased the entire suit property in the name of the deceased first defendant, which had been in common possession and enjoyment of their father and grandfather though the patta stood in the name of the grandfather himself paying the kist; that there had been a partition of the family properties after the first defendant attaining majority in which the first defendant got Northern half and the plaintiff got the Southern half of the suit properties; that the Southern half which fell to the share of the plaintiff had been orally mortgaged in the year 1971 in favour of one Raman for an amount of Rs.1,500 resulting in the mortgage Raman enjoying the Southern portion for six years and thereafter it is the plaintiff, who is in enjoyment of the same; that thereafter without the knowledge of the plaintiff and the first defendant, wrongly, the patta had been issued in patta No.301 in favour of one Alagarsamy Madiyalagar and necessary steps have been taken to change the name in the patta which is under consideration; that the plaintiff is only in possession of the suit properties and by virtue of long possession, he has prescribed title to the suit property and neither the defendant nor anyone else has any semblance of right and on account of the death of the sole defendant, the present defendants have been impleaded as defendants 2 to 9 and on such grounds, the plaintiff would pray for the relief sought for. 4. Onthe part of the defendants, besides generally denying the entire allegations of the plaint as per the written statement, it would also be specifically alleged that absolutely no details have been given to the oral partition said to have taken place regarding the family properties; that regarding the suit property or the property lying on the North neither Sarakku Khatha Nadar nor anyone else had any semblance of right; that the suit property and the property lying on the North of it are in toto measuring 1.53 cents lying in S.No.79/3 which had been belonging to the family of one Periya Karuppan and the same had been purchased by the first defendant on 7. 1994 by means of a registered sale deed and it is purely a self-acquired property and it was the first defendant who was in physical possession and enjoyment of the same; that regarding to ancestral properties, belonging to the father partition had been held and parties have been put in separate possession; that the father had absolutely no right or title or any other interest in the property lying on the North of the suit property; that the plaintiff had been pestering the deceased first defendant to bequeath some of the suit properties in his favour and on his denial has come forward to file the false suit in spite of having no semblance of right and would ultimately pray to dismiss the suit with costs. 5. Based on these pleadings, having framed seven issues, the trial court had conducted trial of the case, with due opportunity for both to be heard wherein on behalf of the plaintiff, the plaintiff besides examining himself as P.W.1 had also examined three witnesses as P.Ws.2 to 4 and had marked 11 documents as Exs.A-1 to A-11 and on behalf of the defendants, the first defendant had been examined as D.W.1 along with another witness as D.W.2 and had market 9 document as Exs.B-1 to B-9 and in appreciation of the evidence in its own way, the trial court had ultimately dismissed the suit. 6. Aggrieved, the plaintiff preferred an appeal before the first appellate court and the first appellate court having framed two points viz., “1. Whether the appeal is capable of being entertained. 2. What relief is the appellant entitled to.” and having gone into the evidence of both sides, would ultimately arrive at the conclusion to allow the appeal thereby setting aside the judgment and decree passed by the trial court further granting the decree as prayed for by the plaintiff. 7. Whether the appeal is capable of being entertained. 2. What relief is the appellant entitled to.” and having gone into the evidence of both sides, would ultimately arrive at the conclusion to allow the appeal thereby setting aside the judgment and decree passed by the trial court further granting the decree as prayed for by the plaintiff. 7. It is only aggrieved against this judgment and decree passed by the first appellate court, the legal representatives of the deceased first defendant have preferred the above second appeal on certain grounds such as brought forth in the memorandum of second appeal, namely, .(i) that the lower appellate court has erred in law in developing a new case, which was not pleaded by either parties; .(ii) that the lower appellate court has erred in law in not relying on the version of the sale deed (Ex.B-1) which is under challenge after 47 years of its execution by a person who was not at all born at that time; (iii) that the lower appellate court has erred in observing that even though there was no evidence to show the partition since the property has been purchased from out of the income from the ancestral property of the plaintiff, the plaintiff is entitled to partition, which is not at all the case of the plaintiff; and (iv) that the lower appellate court has relied on surmises and has passed a wrong judgment. On such and other grounds, the appellants would pray to allow the above second appeal with costs throughout. 8. During arguments, the learned counsel appearing on behalf of the appellant would submit that the defendants are the appellants in the above second appeal and the suit in the trial court had been filed by the plaintiff for declaration and permanent injunction; that the extent of the suit property is O.62.5 hectares; that from out of this extent, the claim of the plaintiff is half share; that one Udayar had two wives and the plaintiff is born to the second wife; that the first defendant was born to the first wife and that pending suit, the first defendant died and his legal representatives got impleaded as defendants 2 to 8 and the trial had been held with them. .9. .9. The learned counsel would further narrate the case of the plaintiff and the defendant as pleaded in their pleadings and would further submit that the trial court dismissed the suit but the first appellate court allowed the appeal filed by the plaintiff; that the lower appellate courts finding is that the plaintiff has not produced the sale deed under which Sarakku Khatha Nadar is said to have purchased the suit property and that the plaintiff was not even able to say when and from whom the above purchase was effected; that the first appellate court also found the oral partition not proved and the plaintiff was not able to say when the partition took place; that further more, even regarding possession, the first appellate court disbelieved the plaintiff; that the further case of the plaintiff is that when Ex.B-1 sale deed dated 7. 1944 was executed in favour of the first defendant he was a minor and hence it was purchased in his name by the grandfather out of his own income; that regarding the oral partition, the lower appellate court concurred with the trial court that it was not proved; that regarding the purchase under Ex.B-1, the lower appellate court has shifted the burden to the first defendant stating that it was purchased by Sarakku Khatha Nadars from out of his income; that the first appellate court has also stated that Sarakku Khatha Nadar had purchased the suit property in the name of the deceased first defendant from out of the ancestral nucleus and this burden is also cast on the defendants’ that all the discussions of the first appellate court in the judgment have been in favour of the defendants, but the finding has been rendered against; that two irregularities which have been committed on the part of the first appellate court has given way for the wrong conclusions to be arrived at, they are, (i) shifting the burden, wrongly, to the shoulders of the defendant and (ii) going out of the scope of the subject; that the witnesses of the plaintiff did not at all say about the purchase by Sarakku Khatha Nadar and that they have deposed only about the oral partition, but both the courts below have concurrently held that the oral partition was not proved. .10. .10. At this juncture, the learned counsel would cite a paragraph from the judgment of the Apex Court delivered in Achuthan Nair v. Chinnammu Amma and others Achuthan Nair v. Chinnammu Amma and others Achuthan Nair v. Chinnammu Amma and others A.I.R. 1966 S.C. 411 wherein it is held that, .“Under Hindu Law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. But the principle is not applied to acquisition of properties in the name of a junior member of a tarwad (anandravan) under the Marumakkathayam law. There is no presumption either way and the question has to be decided on the facts of each case. In the case of a property acquired in the name of the Karnavan, however, there is a strong presumption that it is a tarwad property and the presumption holds good unless and until it is rebutted by acceptable evidence.” 11. The learned counsel for the appellants would cite yet another judgment of the Division Bench of this Court delivered in K.Saroja represented by power of Attorney Agent N.Kumaraswami and others v. S.Pandian and others K.Saroja represented by power of Attorney Agent N.Kumaraswami and others v. S.Pandian and others K.Saroja represented by power of Attorney Agent N.Kumaraswami and others v. S.Pandian and others (1988)1 L.W. 48 wherein it has been held that, “In so far as the presumption in respect of joint family is concerned, the law is well settled now. There is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition a party claims any particular item of property is joint family property, the burden of proving that it is so, rests on the party asserting it. There is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition a party claims any particular item of property is joint family property, the burden of proving that it is so, rests on the party asserting it. According to the judicial pronouncements, to prove that a particular property is joint, the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the properties possessed by the family are joint family properties or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. (It is to be noted as that). In cases where it is established or admitted that the family possessed some joint property which from its very nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family.” 12. The learned counsel for the appellants would cite yet another judgment of this Court delivered in Vembu Ammal and seven others v. Pattuammal and three others Vembu Ammal and seven others v. Pattuammal and three others Vembu Ammal and seven others v. Pattuammal and three others 1999 MLJ. The learned counsel for the appellants would cite yet another judgment of this Court delivered in Vembu Ammal and seven others v. Pattuammal and three others Vembu Ammal and seven others v. Pattuammal and three others Vembu Ammal and seven others v. Pattuammal and three others 1999 MLJ. (Supp.) 574: (1999)3 C.T.C. 717 wherein it has been held: “ Partition - Suit for Partition - Onus of proof regarding nature of property - Suit for partition - Onus on plaintiff to prove that properties sought to be partitioned are joint family properties when defendant claims that properties are self- acquired properties - Plaintiffs had pleaded that properties was purchased from out of joint family income No evidence has been adduced to prove that properties were in name of defendant was purchased from out of joint family nucleus Not for defendant to establish that properties were their self acquired properties - Decree passed by trial court set aside in appeal.” “Evidence Act, 1872, Sec.63 - Onus of proof - Partition suit - Onus is on plaintiff to prove that properties sought to be partitioned are joint family properties when defendant claims that properties are self acquired properties - Not for defendant to establish that properties were their self acquired properties.” Citing the above judgments, the learned counsel for the appellants would pray to allow the above second appeal. 13. 13. In reply, the learned counsel appearing for the respondent would submit that Sarakku Khatha Nadar was the grandfather of the plaintiff and the deceased first defendant and that Udayar was the father of both; that the said Udayar was leading a wayward life and the grandfather purchased the suit property in the name of the deceased first defendant; that Ex.A-1 patta is in the name of Sarakku Khatha Nadar; that he purchased some properties in his name and some other in the name of the first defendant; that all combined together partitioned their properties orally and in the said partition, the plaintiff is entitled to half share; that Ex.A-2 kist receipt shows that kist has been paid in the name of the mortgagee Ramu; that one Madhiazhagan and Alagarsamy have got U.D.R. patta issued in their names for the suit properties; that Ex.A-6 is the kist receipt issued in the name of the plaintiff and that Ex.A-10 is the settlement register extract and even the other documents filed in ‘A’ series would only consolidate the case of the plaintiff. 14. Continuing the arguments, the learned counsel for the respondent would further submit that the defendant has also produced patta and other revenue records; that the extreme boundary of the properties covered under Patta No.340 and Ex.B-1 are one and the same; that Patta No.30 is in the name of Sarakku Khatha Nadar only and it is that land, which has been purchased in the name of the deceased first defendant. With these arguments, the learned counsel for the respondent would pray for dismissing the above second appeal. 15. In consideration of the pleadings of parties and in further consideration of the materials placed on record particularly the oral and documentary evidence and further assessing the surrounding circumstances and in paramount consideration of the position of law pertaining to the subject and the reversed judgment rendered by the first appellate court setting aside the judgment of the trial court and upon hearing the learned counsel for both, the following Substantial Questions of Law emerge for determination: 1. Whether the plaintiff has discharged the Onus on him that the suit properties are the joint family properties, having been purchased from out of the funds derived from the joint family nucleus. 2. Whether the plaintiff has discharged the Onus on him that the suit properties are the joint family properties, having been purchased from out of the funds derived from the joint family nucleus. 2. Whether it is proper to shift the burden to the shoulders of the defendants in proof that the suit property had been purchased by the deceased first defendant from out of his independent and separate funds. 16. Inorder to answer these two substantial questions of law, it is relevant to have a trace of the evidence let in by parties. Though it is the firm case of the plaintiff that it was Sarakku Khatha Nadar, who from out of the family funds purchased the properties under Ex.B-1 in favour of the deceased first defendant, no details regarding the said purchase were made available either in his oral evidence or through documentary evidence nor the registration of the said document in favour of the deceased first defendant and the manner in which it came into existence. The point that is to be considered is that at the time when Ex.B-1 came into existence, the plaintiff was not at all born nor examining any of the attesting witnesses therein, had the details regarding the purchase of the property covered under Ex.B-2 such as who paid the purchase money - whether it was by Sarakku Khatha Nadar or by anyone else - on behalf of the deceased first defendant much less by Sarakku Khatha Nadar whether from his own funds or from out of the family nucleus been proved even to the least extent. But, at the same time, the plaintiff having put up the case to the effect that it was the said Sarakku Khatha Nadar, who purchased the suit property in the name of the deceased first defendant from out of the family resources, the onus of proof is heavily on the plaintiff and it had been concluded by the trial court that the plaintiff had miserably failed to prove what had been alleged on his part. 17. On the other hand, on the part of the defendants, the property had not only been purchased in the name of the deceased first defendant but also in occupation of the same besides being in possession of the document of the purchase. 17. On the other hand, on the part of the defendants, the property had not only been purchased in the name of the deceased first defendant but also in occupation of the same besides being in possession of the document of the purchase. All these years, (about 47 years), the plaintiff, knowingly, had not testified the said document and it implies that he has accepted the document. Moreover, the partition said to have been held 25 years prior to the filing of the suit in which the southern portion is alleged to have fallen to the share of the plaintiff, has also not been substantiated with proper evidence. Merely taking into consideration certain revenue records standing in the name of third parties, such as Exs.A-2 and A-3 and the kist paid for certain faslis as revealed under Exs.A-5 to A-8 series and certain other revenue documents lying in the name of Sarakku Khatha Nadar, how Ex.B-1 sale deed gets demolished or shattered has not been explained on the part of the plaintiff in any manner. 18. On the contrary, every possibility is there only for the deceased first defendant to have been in possession and enjoyment of the property right from the date of purchase till the date of filing of the suit and therefore there is every justification on the part of the trial court to have arrived at the conclusion that the plaintiff had miserably failed to prove the suit put up on his part so as to ultimately hold dismissing the suit with costs. 19. On the part of the defendants it is brought forth that most of the documents submitted on the part of the plaintiff have been antagonistic in nature and not in any manner in proof of the case put up by the plaintiff. The lower appellate court has well arrived at the conclusion that at the time of purchase of the suit property in the name of the deceased first defendant, he was not a minor since there is no indication for him to be a minor in the said document at all. The lower appellate court also has remarked that if a stand is taken on the part of anyone branding the suit property as family property and has been purchased from out of the family funds, it is upto him to prove the same. The lower appellate court also has remarked that if a stand is taken on the part of anyone branding the suit property as family property and has been purchased from out of the family funds, it is upto him to prove the same. But, quite contrarily, the lower appellate court also says that since on the part of the defendant it has been pleaded that he purchased the suit properties from out of his independent sources, it is upto him to prove the same. Again having agreed that to the facts alleged on the part of the plaintiff, it is not only his burden to prove that the suit property had been purchased as a member of the joint family but also the same had been purchased from out of the joint family nucleus. But, having said so, the first appellate court further says that it is the burden of the defendant to prove that the suit property had not been purchased from out of the joint family funds, quite contrary to the earlier conclusion arrived at by him. On such contradictory stand taken on the part of the first appellate court, it had negatively arrived at the conclusion that the defendant had failed to prove his independent source for the purchase money rather than laying emphasis on the plaintiff in proof of the existence of the joint family and the purchase of the suit property from out of the joint family nucleus. 20. In these circumstances, it has become necessary to answer the substantial questions of law in the light of the judgments cited on the part of the appellants. In the first judgment cited on the part of the appellants, reported in Achuthan Nair v. Chinnammu Amma A.I.R. 1966 S.C. 411 it has been filed that it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus… ‘But here is a case wherein absolutely no nucleus is either shown to have existed or brought forth in evidence. 21. 21. So far as the second judgment reported in K.Saroja, represented by power of Attorney Agent N.Kumaraswamy v. S.Pandian K.Saroja, represented by power of Attorney Agent N.Kumaraswamy v. S.Pandian K.Saroja, represented by power of Attorney Agent N.Kumaraswamy v. S.Pandian (1988)1 L.W. 48 cited by the appellant is concerned, it has been tellingly held that there is no presumption that a family because it possessed joint property or any other property and that when in a suit for partition a party claims any particular item of property to be that of from ancestral nucleus of a joint family, the burden of proving that it is so, rests on the party asserting it and that according to the judicial pronouncements, to prove that a particular property is joint, the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn. 22. In the third judgment cited on the part of the appellant reported in Vembu Ammal v. Pattuammal 1999 MLJ. (Supp.) 574: (1999)3 C.T.C. 717 it has been again held that in a suit for partition, the onus is on the plaintiff to prove that the properties sought to be partitioned are the joint family properties, when the defendant claims that the properties are self-acquired ones and it is not for the defendant to establish that the properties were his self-acquired properties… that the onus is on the plaintiff to prove that the property sought to be partitioned are joint family properties when the defendant claims that the properties are self-acquired onus it is not for the defendant to establish those properties were the self-acquired properties.” 22. Inthe case in hand, though it is a suit filed on the part of the plaintiff praying for a declaration and permanent injunction, it is alleged on the part of the plaintiff that there had been a partition 25 years back in which the Southern portion was allotted to him and the Northern portion to the deceased first defendant and since the partition is alleged to have already been held, he did not seek the relied of partition and separate possession of the suit properties and has sought to declare the Southern portion alleged to have been allotted in his favour to be that of his own and further for permanent injunction, lest, he would have prayed for partition also. Since the partition said to have been held 25 years back goes a begging evidence it cannot also be accepted. Hence, it would indirectly mean that it is a suit filed in the nature of partition and separate possession also, though no direct relief is sought for. Therefore, the judgment cited above, so far as it is concerned with the facts and circumstances of the case in hand, is well applies to the same. 24. For all the above discussions held, for the first substantial question of law, it is answered that unless the existence of the joint family system at the time of purchase of the property is established firmly and further the existence of the joint family nucleus, so as to make use of the same by Sarakku Khatha Nadar to purchase the suit property in favour of the first defendant, the suit as put up by the plaintiff cannot be said to have been proved. Neither the existence of the joint family nor the joint family nucleus nor any amount having been utilised by Sarakku Khatha Nadar for the purchase of the suit property in the name of the first defendant having not been substantially established, this substantial question of law has to be answered in the negatived and against the plaintiff holding that the plaintiff has not proved the onus, which was heavily on him. 25. So far as the second substantial question of law is concerned, it is only the burden that could be shifted and not the onus. 25. So far as the second substantial question of law is concerned, it is only the burden that could be shifted and not the onus. The onus since being static on the plaintiff, it is upto him to prove the same and hence in this case, the plaintiff should have proved at least the existence of the joint family and the availability of the joint family nucleus with specific instances. If the said onus has been proved on the part of the plaintiff firmly, then the presumption could be formed to the effect that Sarakku Khatha Nadar in such a joint family system utilising the funds extracted from the joint family nucleus could have purchased the suit property in the name of the first defendant, as alleged on the part of the plaintiff, in which event alone, the burden shifts to the first defendant to prove that the suit property had not been purchased from out of the funds extracted from the joint family nucleus since being a member of the joint family, but from out of his own independent source. 26. Since in the given case, the very existence of the undivided joint family and the existence of the joint family nucleus themselves have not been preliminarily proved on the part of the plaintiff, the question of the presumption that has to be formed thereafter does not arise at all so as to shift the burden to the defendant to prove that he purchased the suit property not from out of the joint family funds but only from his independent source. Therefore, the only conclusion that could be arrived at for this proposition of law is that the question of shifting of the burden so far as the case in hand is concerned, does not arise at all and hence no burden could be cast on the defendants to be discharged since the preliminary requirements have not been satisfied on the part of the plaintiff. Hence, this substantial question of law is also answered against the plaintiff. 27. Hence, this substantial question of law is also answered against the plaintiff. 27. For all the discussion above held since both the substantial questions of law framed in the above second appeal have been answered against the plaintiff, nothing else remains to be decided in the above second appeal and hence the only decision that could be arrived at in the above second appeal is that the plaintiff has not put up a uniform case nor proved the same to the requirements of law adducing the evidence showing the preponderance of probability and hence his case has to fail. The trial court having properly appreciated the evidence had arrived at the right decision of dismissing the suit with costs. But, on the other hand, the first appellate court having adopted a wrong line of appreciation of the evidence and under miserable misconception of law, had arrived at the wrong conclusion to hold that the defendant had failed to prove his independent source forgetting that the onus was heavily on the plaintiff in proof of the existence of the joint family and the availability of the joint family nucleus and has thus wrongly decided to set aside the judgment and decree passed by the trial court. It is relevant to mention that the first appellate court has committed patent errors of law and perversity in approach warranting interference into its judgment and decree by this Court. In result, .(i) the above second appeal succeeds and the same is allowed with costs throughout; .(ii) the judgment and decree dated 1. 1998 made in A.S.No.23 of 1997 by the Court of Subordinate Judge, Sivaganga, allowing the first appeal and setting aside the judgment and decree dated 20.11.1995 made in O.S.No.152 of 1991 by the Court of District Munsif, Manamadurai is hereby set aside; and (iii) the judgment and decree dated 20.11.1995 made in O.S.No.152 of 1991 by the Court of District Munsif, Manamadurai is restored. Consequently, C.M.P.No.9443 of 1999 is closed.