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2003 DIGILAW 648 (MAD)

Thirumalaiswami v. Nallathambi (died)

2003-04-10

P.SHANMUGAM, PRABHA SRIDEVAN

body2003
Judgment :- P. Shanmugam, J. 1. The defendants in O.S.No.50 of 1983 are the appellants in A.S.No. 441 of 1986 and A.S.No.977 of 1994. The plaintiff in O.S.No.9 of 1984 is the appellant in Tr.A.S.No.756 of 1988. 2 . The suit for partition and separate possession, O.S. No.50 of 1983 was decreed and final decree was passed, against which two appeals, viz . A.S. Nos.441 of 1986 and 977 of 1994 are preferred by the defendants in the said suit. The suit for a declaration of title and for permanent injunction, O.S. No.9 of 1984 was dismissed, against which the other appeal, viz. Tr. A.S. No.756 of 1988 is preferred by the plaintiff in the said suit. 3. The genealogy of the members of the family is shown hereunder : 4. The Particulars of the appeals before us are given below: 5. The facts of the case are stated below. The parties are described as per their rankings in O.S. No.50 of 1983. 6. Devanna Gounder was the Village Munsif of Mooppanankurichi Village and Venjamangudalur East Village till he died on 6.11.1930. He left behind his wife Arukkani Ammal and two sons and Karundevi Gounder. The dispute is between these two sons and their legal representatives. After the death of Devanna Gounder, Palanisamy Goundar, the eldest member of the family continued to be the Village Munsif till he died in the year 1974. 7. The case of the plaintiffs is that Devanna Gounder owned ancestral properties and from out of that nucleus, the suit properties were purchased and therefore, they are entitled for a partition. Whereas, the case of the first defendant is that there was no ancestral properties and that the suit properties were purchased by Palanisamy Gounder from his own source and he has acquired title to the suit properties by virtue of the Settlement made by Arukkani Ammal and the Release made by Karundevi Gounder . 8. The further case of the plaintiffs is that Devanna Gounder owned ancestral properties at Mooppanankurichi Village and Venjamangudalur East Village and that they were jointly sold by Palanisamy Gounder, Karundevi Gounder and their minor sons under Exhibits A.1 to A.6 between 1950 and 1957. The total extent of the properties sold was approximately 16 acres. By utilizing the sale proceeds from Exs.A.l to A.6, Arukkani Ammal purchased properties covered by Exs.A.7 to A.13. The total extent of the properties sold was approximately 16 acres. By utilizing the sale proceeds from Exs.A.l to A.6, Arukkani Ammal purchased properties covered by Exs.A.7 to A.13. Similarly, the properties under Exs.A.16 to A.27 were purchased in the name of Palanisamy Gounder by utilizing the proceeds of the earlier sales of the joint family properties. By Exs.A.14 and A.15, properties were purchased in the name of Poornammal, wife of Palanisamy Gounder. By Ex.A.28, properties were purchased in the name of Karundevi Gounder, the father of plaintiffs 1 and 2. The first defendant purchased the properties covered by Ex.A.239/8.26. Exs.A.30 and A.31 are the sale deeds standing in the name of the third defendant, the wife of the first defendant. 9. The specific case of the plaintiffs is that the entire properties that were purchased in the names of the defendants as well as in the name of the third plaintiff and her husband Karundevi Gounder are joint family properties and that they were in possession of the properties in joint enjoyment. According to them, there was no division of the joint family properties at any point of time. There are three houses in Nandanur and Seelamanickanur villages. The defendants are in possession and enjoyment of the house at Seelamanickanur village and the plaintiffs are in possession and enjoyment of the house at Nandanur. The third house was used by the first defendant for his office as the Village Munsif. The further case of the plaintiffs is that after the death of Devanna Gounder, Arukkani Ammal was managing the properties since her two sons namely Palanisamy Gounder and Karundevi Gounder were too young. After attaining majority, Palanisamy Gounder became the Village Munsif, succeeding his father and he was the manager of the joint family. After the death of Palanisamy Gounder in the year 1974, the first defendant namely Thirumalaisamy became the Village Munsif and he became the joint family manager of the entire family. Karundevi Gounder, the father of plaintiffs 1 and 2, left the village with one Sellammal and was living with her at Karur. He also developed relationship with another woman by name Dhanam and was living with her. According to the plaintiffs, Karundevi Gounder was leading an immoral life and did not take care of his wife, his children and the properties. Hence, the properties were managed by Palanisamy Gounder and subsequently by Thirumalaisamy. He also developed relationship with another woman by name Dhanam and was living with her. According to the plaintiffs, Karundevi Gounder was leading an immoral life and did not take care of his wife, his children and the properties. Hence, the properties were managed by Palanisamy Gounder and subsequently by Thirumalaisamy. The properties were dealt with by Palanisamy Gounder, and the purchases and the patta obtained for the Inam lands were all in his capacity as Manager and were for the benefit of the family. 10. The case of the first defendant is that the entire properties standing in the names of defendants 1, 2 and 3 are the exclusive properties purchased by him from out of his earnings. Some of the properties were granted in the settlement proceedings. He has specifically pleaded that the entire ancestral properties were sold during the time of Devanna Gounder and after his death, there was no joint family. All the properties were jointly sold. He had denied the averment that the properties were purchased in the name of Arukkani Ammal and Palanisamy Gounder from out of the sale proceeds of the ancestral properties. According to him, Karundevi Gounder, the father of plaintiffs 1 and 2, was never an agriculturist and he was a lorry owner living in and around Karur. The suit properties are not joint family properties and therefore, they are not in joint possession of the same. According to the defendants, except the fact that Devanna Gounder was the Village Munsif, they deny that he had any ancestral family properties and therefore, there was no question of Arukkani Ammal managing any of the joint family properties. The joint sale of the properties was for the discharge of the mortgages. There was no common enjoyment of the properties at any point of time. They have further stated that Palanisamy Gounder had borrowed money by mortgaging the suit properties on his own account and not as the head of the joint family, which never existed. The attestation by Karundevi Gounder in the mortgage deed shows that he recognised the rights Palanisamy Gounder over the property. Karundevi Gounder and his sons are therefore estopped from claiming that these properties are joint family properties. Long prior to 17.3.1960, Karundevi Gounder executed a release deed in favour of Palanisamy Gounder. The attestation by Karundevi Gounder in the mortgage deed shows that he recognised the rights Palanisamy Gounder over the property. Karundevi Gounder and his sons are therefore estopped from claiming that these properties are joint family properties. Long prior to 17.3.1960, Karundevi Gounder executed a release deed in favour of Palanisamy Gounder. The brothers, namely Karundevi Gounder and Palanisamy Gounder got separated from each other even before the plaintiffs were born. Karundevi Gounder left the village to eke out his livelihood as a lorry owner with the funds provided by Palanisamy Gounder namely Rs.9,500 towards the release of his rights from the properties. In the above circumstances, according to the defendants, neither there was any ancestral property nor any joint family, and the properties were purchased and dealt with by he defendants in his individual capacity out of his self-earnings and therefore, the suit for partition is not maintainable . 11. The trial Court tried both the suits together. The findings of the trial Court are summarized below : (1) Arukkani Ammal was in management of the properties after her husband’s death and the properties were purchased in her name since she happened to be the elder member of the joint family. (2) The ancestral properties were sold by Arukkani Ammal and her two sons, by making the two grandsons as eo nomine parties under Exs.A.l to A.6. Arukkani Ammal purchased the property in the year 1948 and sold it among the other members of the family under Ex.B.7 and utilized the sale consideration for the purpose of construction of a house for the family in the year 1957. (3) The property standing in the name of the first defendant, his wife, his father and his grandmother are joint family properties and therefore, the first defendant is not the exclusive owner of the suit property and they are joint family properties of the plaintiffs and defendants 1 to 3. (4) The defendants are in joint possession and enjoyment of the suit properties and the release deed dated 17.3.1960 is not true and valid and is not binding on defendants 3 and 4. Ultimately, a preliminary decree for partition and separate possession of the plaintiffs’ half share was granted and the suit O.S. No.9 of 1984 for a declaration and injunction was dismissed. The appeal is against this judgment. 12. Mr. Ultimately, a preliminary decree for partition and separate possession of the plaintiffs’ half share was granted and the suit O.S. No.9 of 1984 for a declaration and injunction was dismissed. The appeal is against this judgment. 12. Mr. V.K. Muthusamy, learned Senior Counsel appearing on behalf of the appellants, in his elaborate submissions, inter alia , contended that there was no proof of any joint family property or family nucleus left for the purchase of the suit properties in the name of Palanisamy Gounder, Arukkani Ammal and defendants 1 to 3. According to him, there is no link connecting the purchase from out of the sale proceeds and as a matter of fact, there was nothing left after the sale of the properties covered by Exs.A.l to A.5. In the absence of any material evidence as to the existence of joint family and the availability of nucleus or surplus, the Court below ought to have held that the properties standing in the name of Palanisamy Gounder and Arukkani Ammal are their own separate properties. Arukkani Ammal had settled the properties purchased by her under Exs.B.7 and A.13 by way of Ex.B.4 in favour of Palanisamy Gounder, which was attested by Karundevi Gounder. Further, Karundevi Gounder had also executed a release deed, Ex.B.1 which clearly established that the properties standing in the name of Arukkani Ammal are her separate properties and that they are not available for partition and Karundevi Gounder would not have attested the release deed if they were joint family properties. Therefore, Karundevi Gounder and his heirs are estopped from questioning the correctness of the release deed. Similarly, by Ex.B.1, Karundevi Gounder released his rights from the properties purchased under Ex.B.5 in favour of Palanisamy Gounder. According to the learned Senior Counsel, the Court below also did not consider that Palanisamy Gounder had mortgaged all these properties by Ex.B.2, treating these properties as his self-acquired properties and he said document was also attested by Karundevi Gounder. Therefore, the individual right of Palanisamy Gounder over the properties had been clearly established. The conduct of the parties in treating the properties as individual properties and especially, in the absence of any recitals in Exs.A.l to A.6 to show that the properties were joint family properties, the plaintiffs have miserably failed to establish that the suit properties belonged to the joint family. The conduct of the parties in treating the properties as individual properties and especially, in the absence of any recitals in Exs.A.l to A.6 to show that the properties were joint family properties, the plaintiffs have miserably failed to establish that the suit properties belonged to the joint family. Learned Senior Counsel further submitted that the Court below proceeded to decree the suit for partition in spite of overwhelming evidence in his favour and consequently prayed for the setting aside of the said judgment and decree of the Court below. 13. Mr. S. Sethuratnam, learned Senior Counsel appearing on behalf of the respondents emphasized the family background of Devanna Gounder and Arukkani Ammal and as to how Karundevi Gounder was leading an immoral life and was admittedly living at Karur, away from the village and the family. Therefore, in order to protect the possible claim by Karundevi Gounder, who is the father of the plaintiffs, and to save the family properties from any encumbrance, not only the properties, but also the family was put under the management and protection of Palanisamy Gounder. The joint family properties, therefore, were sold and by utilizing the sale-proceeds from that sale, properties were purchased in the names of Arukkani Ammal, Palanisamy Gounder, Thirumalaisamy, Poornammal, wife of Palanisamy Gounder and Selvam, wife of Thirumalaisamy. Learned Senior Counsel also emphasized the artificial nature of the execution of the release deed and settlement deed on the same day and also the subsequent mortgage with the attestation of Karundevi Gounder. According to him, all these were made for the purpose of saving the joint family properties and hence, the claim of the appellants, is therefore, not only unjust, but it also shows the betrayal of the confidence reposed on Palanisamy Gounder by Arukkani Ammal and the members of the family of Karundevi Gounder. Learned Senior Counsel further submits that the whole background of the family was taken into account by the Court below and it is too much to accept the case of the defendants that the properties were purchased from out of the self-earnings of Palanisamy Gounder and that there was no joint family. According to him, both the oral and documentary evidence clearly support the case, of the plaintiffs. He, therefore, prays this Court to confirm the judgment and decree of the Court below. 14. We have heard the counsel and considered the matter carefully. 15. According to him, both the oral and documentary evidence clearly support the case, of the plaintiffs. He, therefore, prays this Court to confirm the judgment and decree of the Court below. 14. We have heard the counsel and considered the matter carefully. 15. It is seen that Devanna Gounder was working as the Village Munsif of the village till he died in the year 1930. The family of Devanna Gounder owned considerable extents of properties, viz. 28 acres of fertile lands, and the family, consisting of Arukkani Ammal, Palanisamy Gounder and Karundevi Gounder, who are the wife and the two sons of Devanna Gounder, continued the joint family even after the death of Devanna Gounder. Arukkani Ammal was managing the properties till the eldest son namely Palanisamy Gounder became the Village Munsif and afterwards, he was managing the family. After Karundevi Gounder fell into bad ways and left the village and after the demise of Palanisamy Gounder in the year 1974, Thirumalaisamy was managing the properties and looking after the family of Karundevi Gounder. Admittedly, there was no family partition between the members of the family consisting of Palanisamy Gounder and Karundevi Gounder. Therefore, in the absence of a division of status and in the light of the existence of the family properties, it has to be held that the joint family continued to exist even after the death of Devanna Gounder. The fact that the properties were sold jointly by Palanisamy Gounder, Karundevi Gounder with the minor children, making them as eo nomine parties clearly establishes that these properties were joint family properties. Though the recitals of these documents show that there were discharges of mortgages and loans taken for family expenses, the fact the properties were joint family properties cannot be disputed. The further fact that follows is that correspondingly, separate properties were purchased out of the sale proceeds of these joint family properties in the individual names of Arukkani Ammal, Palanisamy Gounder, Thirumalaisamy, Poornamal, Selvam and Karundevi Gounder. The explanation given by the plaintiffs that Karundevi Gounder was leading an immoral life, living with his concubine, away from the village and the family and had fallen into bad ways is not seriously disputed. The explanation given by the plaintiffs that Karundevi Gounder was leading an immoral life, living with his concubine, away from the village and the family and had fallen into bad ways is not seriously disputed. Therefore, Arukkani Ammal, the then manager of the family and Palanisamy Gounder, had rightly thought of safeguarding the family properties by disposing of the ancestral properties and from out of the said nucleus, purchasing the properties in the individual names. The further conduct of Palanisamy Gounder in getting the release deed from Karundevi Gounder and the settlement deed from Arukkani Ammal on the same day, under Ex.B.1 and Ex.B.4 dated 17.3.1960, would clearly reveal that those documents were executed nominally and were not intended to be acted upon. Similarly, the mortgage of all these properties by Palanisamy Gounder under Ex.B.2 dated 17.11.1964, taking the attestation of Karundevi Gounder, was all to show that they were the properties of Palanisamy Gounder. Once we agree with the view of the trial Court that Exs.B.l, B.3 and B.4 are sham and nominal documents and that they were not intended to be acted upon, it follows that the properties continued to be joint family properties. 16. The sale and addition of joint family properties in this case is shown in a tabular form below : Thus, as of the year 1958, the joint family properties consisted of 64.37 acres of lands. 17. Now, let us consider the recitals of these documents and the oral evidence let in on behalf of both sides. 18. Under Exs.A.l to A.5, the brothers, namely Palanisamy Gounder and Karundevi Gounder, along with the children of Karundevi Gounder and Palanisamy Gounder, have joined in executing the sale deeds. Similarly, Arukkani Ammal has joined in execution of a sale deed with her sons and grandchildren under Ex.A.6. The said property was purchased by her under Ex.A.7 dated 15.4.1948. The consideration was received by the vendors jointly though the consideration consisted of discharge of promissory notes and mortgages. By going through Exs.A.l to A.6, it is clear that the family of Palanisamy Gounder and Karundevi Gounder remained joint and that, the ancestral properties were sold under Exs.A.l to A.6. The consideration was received by the vendors jointly though the consideration consisted of discharge of promissory notes and mortgages. By going through Exs.A.l to A.6, it is clear that the family of Palanisamy Gounder and Karundevi Gounder remained joint and that, the ancestral properties were sold under Exs.A.l to A.6. Two reasons are set out by the plaintiffs for the sale of the joint family properties : (i) Karundevi Gounder, after his marriage with Kaliammal began to lead an immoral life and got settled at Karur with his concubine, leaving his wife and children and the plaintiffs were under the care and protection of the joint family manager Arukkani Ammal and Palanisamy Gounder. Karundevi Gounder was lavishly and luxuriously spending without maintaining the plaintiffs. (ii) To avoid agricultural income tax and ceiling laws. Insofar as the first ground is concerned, there is no serious dispute. On the other hand, it is admitted by D.W.2, the wife of Palanisamy Gounder. In her chief-examination itself, she has stated that the brother of her husband namely Karundevi Gounder was leading an immoral life with his concubine at karur. She has also admitted in the cross-examination that there is no division between her husband Palanisamy Gounder and his brother Karundevi Gounder, though she claims that they are living separately. The explanation offered by the plaintiffs for the sale of the joint family properties and the purchase of separate properties from out of the said nucleus is justifiable. The main thrust of the case as accepted by the defendants is that they wanted to save the joint family properties from the luxurious life of Karundevi Gounder who continued to be a member of the joint family. 19. The existence of joint family properties, apart from the above sale by the members of the family under Exs.A.l to A.6, can be inferred from the nature of the families of the parties. The father of Palanisamy Gounder namely Devanna Gounder was the Village Munsif till he died in the year 1930. After his death, as soon as Palanisamy Gounder attained majority, he started to work as the Village Muhsif from 1942 to 1974. The first defendant, son of Palanisamy Gounder, became the Village Munsif in the year 1974. The father of Palanisamy Gounder namely Devanna Gounder was the Village Munsif till he died in the year 1930. After his death, as soon as Palanisamy Gounder attained majority, he started to work as the Village Muhsif from 1942 to 1974. The first defendant, son of Palanisamy Gounder, became the Village Munsif in the year 1974. The continuance of the office of Village Munsif in the family makes it clear that the family should have had immovable properties in the village in order to be Village Munsifs. 20. P.W.1, Nallathambi, in his oral evidence, has categorically stated that his grandmother Arukkani Ammal was managing the properties of her husband after his death in the year 1930 till Palanisamy Gounder became the Village Munsif in the year 1942. During the life time of Devanna Gounder, under Ex.B.7 dated 29.6.1928, the property was purchased in the name of Arukkani Ammal. She had treated the properties standing in her name and purchased by her under Ex.A.7, which were subsequently sold under Ex.A.6 as joint family property. P.W.1 has stated that an extent of 25 to 26 acres was purchased in the name of Arukkani Ammal and after the sale of the joint family properties, separate properties were purchased in the name of Arukkani Ammal under Exs.A.8 and A.13 in the year 1951 and 1956 respectively and in the name of Poornammal, wife of Palanisamy Gounder under Exs.A.12, A.14 and A.15. Properties were also purchased in the name of Palanisamy Gounder under Exs.A.16 to A.27 between 1953 and 1966. Similarly, properties were purchased in the name of Thirumalaisamy under Ex.A.29 in the year 1972 and in the name of Selvam, wife of the first defendant under Exs.A.30 and A.31 in the year 1976 and in the name of Karundevi Gounder under Ex.A.28 in the year 1951. P.W.1 has stated that these purchases ware made by utilising the sale proceeds from the joint family properties. He has stated that Palanisamy Gounder had initiated the sale of these properties in order to avoid land ceiling as well as agricultural income tax. P.W.23, Kaliammal has denied the suggestion that the properties purchased by Arukkani Ammal were by utilizing her Stridhana properties. One such property was purchased in the year 1928, just before the death of Devanna Gounder. The remaining properties were purchased in the years 1951 and 1956. P.W.23, Kaliammal has denied the suggestion that the properties purchased by Arukkani Ammal were by utilizing her Stridhana properties. One such property was purchased in the year 1928, just before the death of Devanna Gounder. The remaining properties were purchased in the years 1951 and 1956. Therefore, it is very difficult to accept the suggestion that Arukkani Ammal waited for such a long time to utilize the funds of her Stridhana property. On the other hand, the oral and documentary evidence clearly go to show that the properties purchased in the name of Arukkani Ammal were by utilizing the joint family funds. 21. Learned counsel for the appellants placed strong reliance on the four documents namely Exs.B.l, B.5, B.4 and B.2. The first three of the said documents were executed on the same day, viz. On 17.3.1960 and the fourth one was executed on 17.11.1964. The first document is the release deed, Ex.B.1, executed by Karundevi Gounder in favour of Palanisamy Gounder. The second one is the re-conveyance agreement, Ex.B.5, executed by Palanisamy Gounder in favour of Karundevi Gounder. The third document is a settlement deed, Ex.B.4, executed by Arukkani Ammal in favour of Palanisamy Gounder. The fourth document is a mortgage deed, Ex.B.2, executed by Palanisamy Gounder, mortgaging all the joint family properties. The release deed executed by Karundevi Gounder in reference to all the items of the suit property pre-supposes that Karundevi Gounder has got interest in the suit properties. In other words, it is acknowledged by the defendants themselves that Karundevi Gounder was having a right in the suit properties. The interpretation sought to be given by the counsel for the appellants is to the effect that the said deed was obtained as an abundant caution and to prevent Karundevi Gounder from claiming any future rights. The relevant portion of the said deed can be extracted for a better appreciation: On the same day, i.e. 17.3.1960, Palanisamy Gounder had executed a re-conveyance, deed in reference to the same Properties by Ex.B.5. The recitals of Ex.B.5 are as follows : 22. From the above, it is clear that Karundevi Gounder is a member of the joint family and that he releases the right in favour of Palanisamy Gounder. Otherwise, there is no necessity for Palanisamy Gounder to execute a reconveyance agreement in favour of Karundevi Gounder. The recitals of Ex.B.5 are as follows : 22. From the above, it is clear that Karundevi Gounder is a member of the joint family and that he releases the right in favour of Palanisamy Gounder. Otherwise, there is no necessity for Palanisamy Gounder to execute a reconveyance agreement in favour of Karundevi Gounder. The view, of the learned Subordinate Judge that the defendant got the documents, viz. Exs.B.l to B.3, only to prevent Karundevi Gounder from borrowing money from third parties and encumber the family properties is, therefore, correct. These documents are not intended to be acted upon as they appear to be so artificial. As stated earlier, on the same day, Karundevi Gounder also settles the suit properties in favour of Palanisamy Gounder. AS seen earlier, Arukkani Ammal was managing the joint family properties and all the purchases in her name were for the benefit of the joint family. She had no independent source of income to purchase the properties and therefore, the settlement of the suit properties in favour of Palanisamy Gounder is obviously only to avoid the encumbrance of these joint family properties by Karundevi Gounder. Similarly, Palanisamy Gounder executed a mortgage deed, Ex.B.2 dated 17.11.1964 and obtained the attestation of Karundevi Gounder in that document wherein he had described these properties as his self-acquired properties. It is obvious that these documents were also designed with the purpose of making a claim as though the properties were transferred in favour of Palanisam Gounder after all the properties were purchased in the individual names of Arukkani Ammal and Karundevi Gounder. The description of the properties as the self-acquisition of Palanisamy Gounder is patently inconsistent with the earlier joint sale of the joint family properties and the purchases of properties in the individual names and thereafter obtaining the release and settlement deeds. Palanisamy Gounder also executed a simple mortgage with the attestation of Karundevi Gounder in order to make it appear as though they are his self-acquired properties. 23. We have given anxious consideration to the various documentary and oral evidence and from the evidence, it is clear that Devanna Gounder, who was the Village Munsif till his death in the year 1930, left ancestral properties along with the properties of his, wife Arukkani Ammal, who was managing the properties after his death. 23. We have given anxious consideration to the various documentary and oral evidence and from the evidence, it is clear that Devanna Gounder, who was the Village Munsif till his death in the year 1930, left ancestral properties along with the properties of his, wife Arukkani Ammal, who was managing the properties after his death. Palanisamy Gounder became the Village Munsif in the year 1942 and the ancestral properties were managed by him thereafter. There was no division of the joint family at any point of time. Since Karundevi Gounder started leading an immoral life, the family members thought of saving the properties from him by selling the joint family properties and purchasing separate properties in their individual names. It is also in evidence that the joint family properties were sold not only to save them from the luxurious life of Karundevi Gounder from encumbering them, but they also tried to prevent the properties from the land ceiling and agricultural income tax. Coupled with the above, the artificial nature of execution of the settlement deed, release deed and the re-conveyance deed, all having been obtained on the same day as also the mortgage deed describing these properties as the self-acquired properties of Palanisamy Gounder, all go to show that the documents were not really intended for the purpose for which they were executed. Ex.B.3, a settlement patta issued in the name of Palanisamy Gounder, was obtained by him only as the manager of the joint family since he happened to be Village Munsif and therefore, he cannot claim exclusive title to the Inam properties which were in possession of the joint family and Palanisamy Gounder continued to be the manager of the joint family. 24. Some of the decisions relied on by the counsel can now be referred to. Insofar as the attestation of Karundevi Gounder in the mortgage deed, the submission is that by the said attestation, Karundevi Gounder has admitted that, the properties are the self-acquired properties of Palanisamy Gounder. In K.A. Selvanachi v. Dr. S.R. Sekar , 2003 (1) C.T.C.745, a Division Bench of this Court has taken the view that mere attestation does not impute knowledge of contents so as to bind the attestor. In K.A. Selvanachi v. Dr. S.R. Sekar , 2003 (1) C.T.C.745, a Division Bench of this Court has taken the view that mere attestation does not impute knowledge of contents so as to bind the attestor. The attestor attests the ignature of the executant of the document, and to impute knowledge of contents of document on such attestor, there must be such evidence intrinsic in the document itself or extrinsic to show that the attestor had knowledge of such contents. Applying the above ratio, we are satisfied that by mere attestation by Karundevi Gounder, no knowledge can be imputed to the contents of the said document, in the facts and circumstances of the case . 25. In Mallappa Giri Mallappa v. R. Yellapagouda, A.I.R. 1959 S.C. 906, the Supreme Court held that where the manager of a joint family acquired certain properties in his own name and there was sufficient nucleus of joint family properties out of which those properties might have been acquired and apart from those properties, the manager had no other source of income, the presumption arises that the newly acquired properties were the properties of the joint family. Unless the presumption was rebutted, it must prevail. In this case, it is clearly established that the joint family properties were sold and that those funds were utilized for the purchase of the properties in the individual names of the members of the joint family for the reasons set out and accepted by us. 26. A Division Bench of this Court, in The Chief Controlling Revenue Authority, Board of Revenue v. Tvl. Inca Cables (Pvt.) Ltd ., A.I.R. 1982 Mad. 113, has held that the essential difference between conveyance and release lies in the fact that in the latter, there is no transfer of an interest or right to another, who had no pre-existing right in it to any extent. Their lordships observed as follows : “A release of a right or a claim can only be in favour of a person who had a pre-existing right or claim and by reason of the release, the latter’s right or claim is enlarged or is made fuller in its content.” Their lordships also held that the nomenclature of a document is not material. But, it is the substance, of the document that must be looked into. But, it is the substance, of the document that must be looked into. Applying the above ratio to the case on hand, it is clear that the defendants had conceded to the pre-existing right of Karundevi Gounder before they obtained the release deed from him and agreed to re-convey the properties to him. 27. The judgment in Mahboob Saheb v. Syed Ismail, A.I.R. 1995 S.C. 1205 for the proposition that the son, who had attested the sale deed and who had an interest in the property, is estopped from challenging the sale subsequently cannot be applied to the facts of the present case. It is clear that three documents came to be executed on the same day, viz . the release deed, the settlement deed and the re-conveyance deed and two years thereafter, a mortgage deed also came to be executed.The facts and circumstances of the case that the joint family properties were sold to avoid the encumbrances by Karundevi Gounder are clearly established by the other evidence. Therefore, the said judgment will not apply to the facts of the present case. 28. A learned Judge of this Court, in V.G. Narayanasamy v. V.G. Ramasamy , 2001 (2) T.L.N.J. 121, has held that if it is shown, that an attesting witness was a consenting party to a particular transaction, he would be estopped from questioning the effectiveness of the said transaction, on a later occasion on the ground that he was not a party thereto. But, the principle enunciated in the above case depends upon the facts and circumstances of each case. 29. The judgment in M. Saminatha Vellalar v. Govindaraju , 2002 (3) C.T.C. 141 , of a Division Bench of this Court to the effect that mere existence of ancestral properties is not enough to conclude that the business carried on by a member of the joint family is a joint family business will not apply to the facts of the present case. 30. In Kandaswami Chettiar v. Gopal Chettiar , 1975 (2) M.L.J. 184 , a Division Bench of this Court has held that if the joint family nucleus is established, the prescription that the accretion made by the manager or the purchases made by him should be deemed to be from out of such a nucleus does not arise if there is no proof that such nucleus of the joint family is not an income-yielding apparatus. The proof required is very strict and the burden is on the person who sets up a case. In this case, it is in evidence that vast extents of joint family properties are garden lands and wet lands and that they were income-yielding and therefore there is no difficulty in holding that the properties were treated to be joint family properties and were subsequently sold and separate properties were purchased in the individual names of the members of the joint family only from out of the nucleus of the joint family properties. 31. For all the above reasons, we find that the learned Subordinate Judge has considered the matter correctly and hence, the findings of the learned Judge do not call for any interference. The appeals fail and are accordingly dismissed. The decree for partition is confirmed and the dismissal of the suit for declaration of titles and injunction is also confirmed. However, there will be no order as to costs. Consequently, the connected C.M.Ps. are closed.