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2004 DIGILAW 234 (KER)

O. K. Moidu (Died) By L. Rs v. O. K. Ayisha Umma

2004-06-03

R.BHASKARAN

body2004
Judgment :- This appeal is filed by the 1st defendant in O.S.No.136 of 1988 on the file of the Sub Court, Ottappalam. The suit was for partition. The case of the plaintiffs is that item Nos.1 and 2 of plaint A-schedule belonged to deceased Marakkar. Plaintiffs and defendants 1 to 4 are his children. The 5th defendant is the wife of Veeran, deceased son of Marakkar and defendants 6 to 10 are her children. According to the plaintiffs, items 1 and 2 of the plaint schedule were purchased by Marakkar and items 3 and 4 were purchased by the 1st defendant with the funds obtained by cutting and selling the trees in plaint A-schedule item No.1, for and on behalf of the plaintiffs and defendants. Therefore, plaint A-schedule items 3 and 4 are also liable to be partitioned among the legal heirs of Marakkar. Plaint B-schedule is said to be the sale proceeds to trees cut and sold by defendants 1 to 3 from plaint schedule items 1 and 2. Plaintiffs claimed 2/11 shares in A and B-schedule properties. Plaintiffs also claimed future mesne profits at the rate of Rs.800/- per annum from defendants 1 to 3. 2. The first defendant filed written statement contending that the legal heirs of Marakkar had divided plaint schedule items 1 and 2 orally after the death of Marakkar through mediators. The plaintiffs and 4th defendant agreed to accept the value of their shares instead of property. The particulars of the property allotted is also stated in the written statement. He also contended that the house in the property allotted to the 1st defendant was reconstructed by him spending Rs.10,000/-. He also contended that items 3 and 4 were not purchased by cutting and selling trees in plaint item No.1. No trees were cut from plaint schedule items 1 and 2. These items were purchased by him with his own funds and he was in exclusive possession of these items as his self acquisition and they are not partible. He also contended that if the court finds that plaint A-schedule items 1 and 2 are partible, his reservation for Rs.10,000/- spent for reconstruction may be allowed. 3. Defendants 2 to 10 filed written statement supporting the case of the 1st defendant. 4. The trial court framed necessary issues. He also contended that if the court finds that plaint A-schedule items 1 and 2 are partible, his reservation for Rs.10,000/- spent for reconstruction may be allowed. 3. Defendants 2 to 10 filed written statement supporting the case of the 1st defendant. 4. The trial court framed necessary issues. The trial court found that the case of oral partition set up by the 1st defendant was not proved and that items 1 and 2 are liable to be partitioned. With regard to items 3 and 4 also, the trial court found that they are liable to be partitioned among the sharers. According to the trial court, the 1st defendant has not explained his source of income for purchasing these items and he has not discharged his burden of showing that they are his self-acquisitions. Regarding the claim for reservations, the trial court found against the 1st defendant and it was held that the parties are co-owners and are entitled to only equitable considerations. 5. The points arising for consideration in this appeal are whether (1) there was an oral partition of items 1 and 2 of plaint A-schedule properties as contended by the 1st defendant and (2) whether items 3 and 4 are liable to be partitioned between the plaintiffs and defendants. 6. With regard to the case of oral partition, there is only the oral evidence of Dw.1. Though it has come out in evidence that separate houses are constructed and some of the children of Marakkar are residing in those houses, there is no conclusive proof for an oral partition. No document is produced to show separate allotment or separate possession of the different plots alleged to have been allotted in the oral partition. In the absence of any clinching evidence to show the case of oral partition, it cannot be said that the finding of the trial court on oral partition is wrong. Therefore, I confirm the finding with regard to the case of oral partition. 7. The more important point elaborately argued by Sri. K.T. Sankaran the learned counsel for the appellant and Sri. T. Sethumadhavan, the learned counsel for the contesting respondents, is with regard to the partibility of items 3 and 4. Therefore, I confirm the finding with regard to the case of oral partition. 7. The more important point elaborately argued by Sri. K.T. Sankaran the learned counsel for the appellant and Sri. T. Sethumadhavan, the learned counsel for the contesting respondents, is with regard to the partibility of items 3 and 4. The reasoning of the trial court that the 1st defendant has not established that these items were acquired with his funds and that he has not discharged his burden, cannot be sustained because admittedly the property stands in his name and there is no initial burden on his side to establish that these are his properties. If the plaintiffs have got a case that these properties are liable to be partitioned in spite of the fact that these items stand in the name of the 1st defendant, it is for the plaintiffs to plead and prove how these properties are liable to be partitioned. 8. Though the plaintiffs claim to be sharers entitled to get partition of items 3 and 4, defendants 2 onwards; who are also sharers entitled according to the plaintiffs, to get partition of items 3 and 4, have no case that these items are liable to be partitioned and they agree with the contention of the 1st defendant that these items are his self acquisitions. Though, no doubt, it is not binding on the plaintiffs, it is an important circumstance while considering the question whether these items are liable to be partitioned or not. 9. When items 3 and 4 stand in the name of the 1st defendant, the presumption is that they are his own properties. To hold that these are partible items, the plaintiffs have to show as to how they are partible. The learned counsel for the contesting respondents contended that this Court has in Seyedali Rowthen v. Nharakkot Jummath Mosque (1965 KLT 12) held that properties acquired in the name of the managing member of the family shall be presumed to be the family property and therefore in this case also, these items are to be held to be family properties and are liable to be partitioned. The question to be considered is as to how far the above-said decision is applicable to the facts of the present case. 10. The question to be considered is as to how far the above-said decision is applicable to the facts of the present case. 10. In Seyedali Rowthen’s case (1965 KLT 12), this Court found that the evidence on record proved that there were common properties which were managed by the managing member. This Court also relied on the Division Bench decision in Mariamma v. Charaghan (1959 KLT 1050) which held that though the presumption with respect to acquisitions made by the Manager of a Hindu family is not applicable to acquisitions by a senior member of a Christian family it can be proved that there was an implied agreement between all the members of the family that members carrying on the management should carry on for the benefit of all the members and on the understanding that all the members shall be entitled to the properties acquired during the course of the management. This Court also relied on the passage in Mulla’s Principles of Mohammadan Law, where it is stated as follows: “But if during the continuance of the family, properties are acquired in the name of the managing member of the family, and it is proved that they are possessed by all the members jointly, the presumption is that they are the properties of the family, and not the separate properties of the member in whose name they stand.” Therefore, the two conditions to be satisfied are that the properties are acquired in the name of the managing the member and they are possessed by all the members jointly. Is there anything in the plaint and evidence in this case to satisfy these two conditions? 11. In paragraph 2 of the plaint, it is stated that items 3 and 4 of plaint A-schedule are purchased by the 1st defendant with the income by cutting and selling the trees from item No.1. The 1st defendant is also described as the eldest male member. In paragraph 3 of the plaint, it is stated that the properties are managed by defendants 1 to 3 for and on behalf of the members of the family. There is no averment in the plaint that the 1st defendant was the Manager of the family. On the other hand, the averment is that defendants 1 to 3 are managing the properties on behalf of the members of the family. 12. There is no averment in the plaint that the 1st defendant was the Manager of the family. On the other hand, the averment is that defendants 1 to 3 are managing the properties on behalf of the members of the family. 12. In the written statement, the 1st defendant has denied the allegation in the plaint that items 3 and 4 were purchased with the income obtained by the sale of the trees from item No.1. It is stated that there were no trees in item No.1 to be cut and sold. He has also stated that these items were purchased with his own funds. 13. Second plaintiff was examined as Pw.1. She has stated that items 3 and 4 were purchased with the income obtained by the sale of the trees in items 1 and 2 of the plaint schedule. She has also stated that items 3 and 4 were never enjoyed as a joint property. They were enjoyed as 1st defendants own properties. In cross-examination, she has also stated that the 1st defendant has no independent means for purchasing these items. She has also stated that at the time of the death of father there were three houses in item No.1. But she further stated that all the members were residing in the tharavad. She has also stated that though the three houses were constructed during the lifetime of the father for the separate residence of the children, the children did not occupy those houses. She also stated that she did not remember when the trees were cut. She further stated that she was not examining any witness to prove that trees were cut from item 1 or 2. She admitted that after the death of the father, the mother was the senior most member of the tharavad and the children were obeying her. She was a minor at the time of purchase of items 3 and 4. There were major members in the house when the purchase was made in the name of the 1st defendant. She admitted that items 3 and 4 were in the exclusive possession of the 1st defendant and that she was not paid any income out of these items. This admission is fatal to the case now argued on the basis of Seyedali Rowthen’s case. 14. The 1st defendant was examined as Dw.1. He has stated about the oral partition. She admitted that items 3 and 4 were in the exclusive possession of the 1st defendant and that she was not paid any income out of these items. This admission is fatal to the case now argued on the basis of Seyedali Rowthen’s case. 14. The 1st defendant was examined as Dw.1. He has stated about the oral partition. He has denied the case of the plaintiffs that trees were cut from item 1 of the plaint schedule. He has stated that items 3 and 4 were purchased with his own funds. He was having a stationery business from 1959 onwards. He also stated that there were no trees worth selling in items 1 and 2 and whatever trees were there are available even at the time of giving evidence. In cross-examination, he was asked whether there was any management of items 1 and 2 after the death of the father. He said that it was the mother who was managing the properties. He also stated that after the death of the father, minor children were maintained by him. The revenue for items 1 to 4 were paid separately. He also stated that the income from items 3 and 4 were taken jointly. This has to be read along with his earlier statement that the two minor children were under his protection after the death of the father. More over, “possessed jointly” is different from saying “income taken jointly”. Dw.2 is examined only to prove the oral partition and his evidence is of no help for considering the question whether items 3 and 4 are liable to be partitioned, except to show that the 1st defendant was having stationary business. 15. The learned counsel for the contesting respondents relied on the recital in Ext.A3 where the 1st defendant is described as “karanavan” an “manager”. The question for consideration is whether by such description alone, it could be presumed that the 1st defendant purchased the property as managing member of the family. There is no averment in the plaint that the plaintiffs and defendants constitute a joint family and that the 1st defendant is a manager and karanavan of the family. The question for consideration is whether by such description alone, it could be presumed that the 1st defendant purchased the property as managing member of the family. There is no averment in the plaint that the plaintiffs and defendants constitute a joint family and that the 1st defendant is a manager and karanavan of the family. There is nothing to show that the parties are following the Marumakkathayam Law or there is any custom prevailing among the parties under which there is a presumption that the property standing in the name of the eldest male member will be presumed to be joint family properties. In the absence of any such pleadings and in the absence of any evidence to show that the 1st defendant was the manager of the joint family properties and in the absence of any evidence to show that the 1st defendant cut and removed the trees from items 1 and 2 and made use of the proceeds for purchase of items 3 and 4, there cannot be any presumption that these items belonged to all the legal heirs of Marakkar. 16. The learned counsel for the appellant also relied on the decision in Sarojini v. Santha Trading Co. (1969 KLT 412) to contend for the position that a mere recital in confirmation of pre-existing rights in a person, who had no such right would not covey any right in the property to him. A mere recital that the property belonged to both the husband and the wife will not convey any interest in the property of the wife to the husband. Therefore, if the 1st defendant was not as a matter of fact the manager of a joint family, he will not become manager merely because he is described so in Ext.A3. No doubt, it may be a circumstance in favour of the plaintiffs’ case if there are other items of evidence to show that the 1st defendant was acting as manager of the joint family. When as a general rule there is no joint family system available for Mohammadans, it has to be established by positive pleading and evidence that the parties are followers of joint family system. 17. In Mohd. Ibrahim v. Syed Md. When as a general rule there is no joint family system available for Mohammadans, it has to be established by positive pleading and evidence that the parties are followers of joint family system. 17. In Mohd. Ibrahim v. Syed Md. Abbubaakker (AIR 1976 Madras 84), a Division Bench of a Madras High Court has held as follows: The personal law of Muslims does not recognize a system of joint holding as is common amongst Hindus. There may be cases, however, where a custom may be set up in the matter of the holding of such properties by some of the members of a Muslim family whereby it could be established that such possession and title in some of the members is customarily to be interpreted and understood as possession on behalf of all the members. Acquisition of property independently by a member cannot automatically be said to be for the benefit of the family. If there is conclusive evidence that a member of the Muslim family, who acquired such properties gained an advantage to himself and caused prejudice to others and if such acquisition is traceable to surplus family assets or funds from and out of which the property could have been purchased, then mattes would be different.” The Division Bench of the Madras High Court has clarified that even in cases where there is a custom set up, the presumption can be drawn only in case it is proved that the acquisition is traceable to surplus family assets or funds from and out of which the property could have been purchased. This principle is reiterated in Shaik Safir Mohammed v. Basir Mohammed (AIR 1961 Orissa 92) and Abdul Samad Khan Khiladar v. Bibijan (1925 (49) MLJ 675). Even among the Hindus, the Supreme Court has held in D.S. Lakshmaiah & Another v. L. Balasubramanyam & Another (2003 AIR SCW 4347) as follows: “18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.” If this is the legal position among Hindus who were followers of Joint family system, I have no doubt that the position of Muslims who were not following such system cannot be anything better to arrive at such a presumption. 18. The learned counsel for the appellant also brought to my notice a Division Bench decision of this Court in Parvathi Amma v. Mani Amma (1975 KLT 197) where the Division Bench has held that “when acquisition is made by a managing co-owner by making use of the funds of the Co-ownership property, it would not enable the remaining co-owners to demand their shares in the properties thus acquired but would only entitle them to ask for an account of their share of the money invested in the acquisition. 19. The trial court wrongly cast the burden on the 1st defendant to establish that these items are his self acquisition. It is only when the plaintiffs establish by pleading and proof that the properties are acquired in the name of the managing member of the family and they are possessed by all the members jointly, there could be a presumption that they are properties of the family even adopting the principles accepted in Seyedali Rowthen’s case. In the light of the above discussion, the judgment and decree of the trial court require modification with respect to items 3 and 4 of the plaint schedule. In the result, the appeal is allowed and the judgment and decree of the trial court in so far as they relate to items 3 and 4 are set aside and it is held that these items are not partible among plaintiffs and defendants. In all others respects, the judgment and decree of the trial court are confirmed. In the result, the appeal is allowed and the judgment and decree of the trial court in so far as they relate to items 3 and 4 are set aside and it is held that these items are not partible among plaintiffs and defendants. In all others respects, the judgment and decree of the trial court are confirmed. Parties shall suffer their costs in this appeal.