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2005 DIGILAW 1079 (MAD)

Savithiri Ammal v. Ilayaperumal & Another

2005-07-15

T.V.MASILAMANI

body2005
Judgment :- (Second Appeal against the judgment and decree dated dated 29.10.1993 in A.S.No.178 of 1992 on the file of the Subordinate Judge, Cuddalore confirming the judgment and decree dated 16.3.1992 in O.S.No.679 of 1990 on the file of the Additional District Munsif, Cuddalore.) The plaintiff in the suit, who lost before both the courts below, is the appellant. 2.The appellant filed the suit for declaration of title and recovery of possession of the suit property with mesne profits and the respondents resisted the suit on various grounds. The trial court having analysed the evidence both oral and documentary and upon hearing the arguments of both sides dismissed the suit with costs. Aggrieved by the said judgment and decree passed by the trial court, the plaintiff preferred the appeal before the Subordinate Judge, Cuddalore. The learned Subordinate Judge after perusing the recorded evidence and upon hearing the arguments of both sides rendered a concurrent finding by dismissing the appeal with costs. Hence, the Second Appeal. 3. The averments in the plaint filed by the appellant/plaintiff are briefly as follows:- (a) One Ramar Padayachi had one daughter and three sons namely, Dhanabackiyam, Thangavelu (second defendant herein), Kaliyan and Chinnathambi. Kaliyan died while his wife Radha was pregnant and thereafter Radha married her husband's brother, the said Chinnathambi. The child born to Kaliyan and Radha died subsequently. Ramar Padayachi died about 8 years ago and his wife predeceased him. (b) Ramar Padayachi purchased the suit property out of the joint family funds in the name of his eldest son Thangavelu in 1953. Patta stood in the name of Ramar Padayachi till his life time and thereafter in the name of his sons. After the death of Ramar Padayachei the suit property and other family properties were divided by his heirs. The suit property measuring 23 cents out of the total extent of 35 cents belonged to Chinnathambi and his wife Radha. In the said partition, 12 cents out of 35 cents was allotted to Thangavelu, second defendant herein for his 1/3rd share and the remaining 23 cents, namely, the suit property devolved upon the said Kaliyan and Chinnathambi 11-1/2 cents each. (c) On 25.11.1988, both Chinnthambi and Radha sold the above 23 cents to the plaintiff for valuable consideration. The plaintiff was in possession and enjoyment of the same. (c) On 25.11.1988, both Chinnthambi and Radha sold the above 23 cents to the plaintiff for valuable consideration. The plaintiff was in possession and enjoyment of the same. While so, the second defendant herein sold the entire 35 cents under a registered sale deed dated 31.7.1987 to the first defendant herein as if he was entitled to the entire extent. Despite a mediation held in the village, the first defendant took possession of the entire 35 cents and therefore the plaintiff is constrained to file the suit. Since the first defendant is in unlawful possession of the suit property, he has to deliver possession of the same to the plaintiff and also to pay mesne profits. 4. The averments in the written statement filed by the first respondent/first defendant and adopted by the second respondent/second defendant are briefly as follows:- (a) The relationship between the parties is admitted. However, there was no marriage between Chinnathambi and Radha as alleged in the plaint. Even if there had been a marriage between them, it is invalid in law, since under the provisions of Hindu Marriage Act, brother's widow is within the prohibited degree of relationship. The suit property did not belong to the joint family of Ramar Padayachi and his sons as alleged. In fact the property measuring 35 cents was the separate property of the second defendant herein for the reason that under the registered sale deed dated 8.10.1952 he purchased the property out of the funds provided by his father-in-law at the time of the marriage. The second defendant himself had independent sources of income, he being a weaver by profession. Hence, the property was purchased without any aid from the joint family property. (b) The second defendant was in exclusive possession and enjoyment of the property and patta No.83 was issued in his favour by Tahsildar, Cuddalore on 16.7.1974. He was also asserting title to the suit property by executing mortgage in respect of the same and he sold the property ultimately to the first defendant under a registered sale deed dated 31.7.1989 for Rs.10,880/-. Hence the allegations contrary to such fact averred in the plaint are denied as false. The property was not divided much less into three shares. There was no mediation as alleged in the plaint. The first defendant is in lawful possession of the property and hence the suit is not maintainable. Hence the allegations contrary to such fact averred in the plaint are denied as false. The property was not divided much less into three shares. There was no mediation as alleged in the plaint. The first defendant is in lawful possession of the property and hence the suit is not maintainable. The suit is also bad for non-joinder of the daughter of Ramar Padayachi and also on account of partial partition. 5. On the above pleadings, the trial court framed the following issues for trail:- (1) Whether the plaintiff is entitled to the relief of declaration as prayed for? (2) Whether the plaintiff is entitled to recover possession of the suit property as prayed for? (3) Whether the suit is bad for non-joinder of necessary party? (4) Whether the first defendant is in possession and enjoyment of the suit property? (5) To what relief the plaintiff is entitled to? The additional issue framed on 4.3.1992 reads as under:- Whether the suit property belonged to Ramar Padayachi and his sons as their joint family property? 6. On the side of the appellant/plaintiff, besides the evidence of the husband of the plaintiff as P.W.1, three witnesses were examined as P.Ws.2 to 4 and two documents were marked. On the side of the defendants, the second defendant has been examined as D.W.2 and another witness as D.W.1 and 13 documents have been marked as Exs.B-1 to B-13. 7. The learned Additional District Munsif held under the said issues that the plaintiff is not entitled to the relief of declaration and recovery of the suit property, that the suit is not bad for non-joinder of necessary party, that the first defendant having purchased the property, is in possession and enjoyment of the same and that therefore the plaintiff is not entitled to any relief as prayed for in the suit. 8. Having aggrieved over the judgment and decree passed by the trial court, the plaintiff preferred the appeal in A.S.No.178 of 1992 before the Subordinate Court, Cuddalore. The learned Subordinate Judge after considering the recorded evidence and the arguments of both sides framed the following points for consideration. (1) Whether the sale deed in favour of the second defendant was obtained from and out of the joint family funds? (2) Whether the sale deed dated 25.11.1988 was executed for valuable consideration? The learned Subordinate Judge after considering the recorded evidence and the arguments of both sides framed the following points for consideration. (1) Whether the sale deed in favour of the second defendant was obtained from and out of the joint family funds? (2) Whether the sale deed dated 25.11.1988 was executed for valuable consideration? (3) Whether the sale deed executed by the second defendant in favour of the first defendant on 31.7.1989 was true and valid? (4) Whether the suit is liable to be decreed as prayed for? (5) Whether the appeal has to be allowed as prayed for? 9. The learned Subordinate Judge held on the above points that the sale deed in favour of the second defendant was not executed from and out of the joint family funds, that the entire extent of 35 cents belonged to the second defendant, and that therefore the suit property was not allotted to Radha and Chinnathambi in the partition as alleged in the plaint. Thus, he found that the appeal is liable to be dismissed by confirming the judgment and decree passed by the trial court. 10. In the above circumstances, the following substantial questions were formulated on 14.11.1994 by this court for consideration:- (1) Whether the Courts below are right in law in overlooking that having admitted the existence of the nucleus and possession of some joint property by the family, the defendant has not discharged the onus to prove his plea of self-acquisition? (2) Whether in law the courts below have not erred in overlooking that the very recitals in Ex.B-2 would describe the suit property to be one acquired from joint family funds and defendant's funds? (3) Whether in law the Courts below have not erred in accepting the defendant's case of self-acquisition overlooking that it was impossible for the defendant to have purchased the suit property from his earning as he was only 16 years old at the time of the alleged purchase? 11. The parties to this appeal may be referred to hereunder as they were arrayed before the trial court for the sake of convenience. The facts which are not in controversy may be set out as under. One Ramar Padayachi had 3 sons and one daughter, namely, Thangavelu (second defendant), Kaliyan, Chinnathambi and Dhanabakkiyam. 11. The parties to this appeal may be referred to hereunder as they were arrayed before the trial court for the sake of convenience. The facts which are not in controversy may be set out as under. One Ramar Padayachi had 3 sons and one daughter, namely, Thangavelu (second defendant), Kaliyan, Chinnathambi and Dhanabakkiyam. Similarly, the suit property was purchased in the name of the second defendant under Ex.B-1 registered sale deed dated 8.10.1952 and at that time the father of the second defendant, namely, Ramar Padayachi was alive. Subsequently, Ramar Padayachi died on 9.5.1989 and thereafter the second defendant for himself and on behalf of his minor sons sold the suit property to the first defendant by a registered sale deed Ex.B-3 dated 31.7.1989. 12. Further it is not in controversy that after the death of Kaliyan, one of the sons of the said Ramar Padayachi, his wife Radha was living with Chinnathambi, brother of the deceased Kaliyan. Therefore, the said Radha and Chinnathambi sold 23 cents as their 2/3rd share in the entire extent of 35 cents of the plaint schedule property to the plaintiff under Ex.A-1, registered sale deed dated 25.11.1988 and on the basis of the sale deed, the plaintiff claimed that the said 23 cents belonged to him. It is therefore contended by the learned counsel for the appellant that since the respondents failed to prove that the suit property belonged to the second defendant as his self acquired property, the case of the appellant has to be accepted. 13. The only question arising for consideration is whether the joint family consisting of Ramar Padayachi and his sons owned any joint family property and if so, whether there was sufficient income from the said property so as to acquire the suit property in the name of the second defendant under the registered sale deed Ex.B-1 dated 8.10.1952. In this respect the categorical evidence of the second defendant as D.W.2 is that apart from their residential building, there was no other property belonging to the joint family consisting of his father Ramar Padayachi and three sons. According to him, the suit property was acquired out of his own funds earned both from his profession as a weaver as well as the demand given by his mother-in-law immediately within 2-1/2 years from the date of his marriage. According to him, the suit property was acquired out of his own funds earned both from his profession as a weaver as well as the demand given by his mother-in-law immediately within 2-1/2 years from the date of his marriage. He has therefore denied that the suit property was acquired out of the joint family funds. 14. D.W.2, the second defendant has produced Ex.B-2, mortgage deed executed by him for himself and as guardian of his minor sons in respect of the suit property in order to show that the sale deed under Ex.B-1 was acted upon. Similarly, he has contended as D.W.2 that he had also discharged the debt under Ex.B-2 and that his father and two other brothers did not object to his executing the mortgage under Ex.B-2. 15. Similarly, it is admitted by him that about 15 years ago, that is, in or about 1977 one acre of land had been purchased by the members of the joint family and that the same had been in their joint possession and enjoyment with the patta standing in the name of his father. In this context, even though the learned counsel for the appellant would contend that the said land would have yielded sufficient income so as to provide necessary funds to purchase the suit property in the name of the second defendant, such contention cannot be countenanced for the simple reason that the said land of one acre had been acquired by the joint family members after the sale deed under Ex.B-1 dated 8.10.1952 and it necessarily follows that the suit property could not have been acquired out of the income from the said one acre belonging to the joint family. 16. Though the learned counsel for the appellant would contend further that the suit property was acquired out of the joint family funds, as has been rightly argued by the learned counsel for the respondents, there is no documentary evidence adduced by the plaintiff to prove the existence of the joint family property prior to the acquisition made under Ex.B-2 or to establish that there is sufficient nucleus of joint family property so as to enable the acquisition under Ex.B-2 in the name of the second defendant for the benefit of the family. 17. 17. It is no doubt true that in Ex.B-2, mortgage deed executed by the second defendant in respect of the suit property, it is recited that the property mortgaged thereunder belonged to the second defendant as his ancestral as well as self-acquired property and in this context the explanation offered by D.W.2, the second defendant that the scribe of the document had introduced such recitals as if the property mortgaged belonged to the mortgagor ancestrally also. As has been rightly argued by the learned counsel for the respondents, in view of the recorded evidence, it cannot be said that the plaintiff discharged the burden of proving that the suit property had been acquired out of joint family funds and therefore, I am of the opinion that the explanation offered by the second defendant in his evidence with reference to the said recitals in Ex.B-2 is acceptable when regard being had to the normal course of human conduct. Therefore such recital that the property covered by the mortgage deed belonged to the second defendant ancestrally also does not help advance the case of the plaintiff. 18. The learned counsel for the respondents has also drawn the attention of this Court that even though the plaint averments are to the effect that out of the joint family funds, the suit property was purchased in the name of the second defendant for the benefit of the family, there is no acceptable evidence either oral or documentary adduced by the plaintiff to prove such allegation and hence the finding of fact rendered by the courts below that the suit property is the self-acquired property of the second defendant has to be sustained. 19. In this context, the learned counsel for the respondents has relied on the decision AIR 1969 S.C. 1076 (MUDIGOWDA v. RAMACHANDRA) in support of the proposition of law that if it is proved that there was adequate nucleus of joint family property, only thereafter the onus shifts to the defendants to show and prove that the suit property was acquired without the aid of the income from the joint family property. In the above facts and circumstances of this case, there is no evidence either oral or documentary adduced on the part of the plaintiff to show that any joint family property was in existence on the date of acquisition of the suit property Ex.B-1 and therefore this Court is of the considered view that in the absence of any such evidence adduced by the plaintiff, the testimony of the second defendant as D.W.2 has to be accepted. 20. The ratio laid down in the decision cited above on this aspect of the matter reads as follows:- "There is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate." 21. If the evidence on record is scrutinised in the light of the ratio laid down by the Apex Court, the inescapable conclusion is that the plaintiff has miserably failed to prove the existence of any joint family property yielding sufficient income to acquire the suit property under Ex.B-1 registered sale deed dated 8.10.1952 and it follows that the case of the defendants based on the recorded evidence deserves acceptance. 22. 22. Thus, the evidence adduced by the second defendant was relied upon by both the courts below to come to the conclusion that in the absence of any evidence to prove the existence of joint family property yielding sufficient income to acquire the suit property in the name of the second defendant, the suit property should be held to be the separate property of the second defendant and therefore in view of the ratio laid down in the decision cited above and having regard to the evidence adduced on either side, this Court is of the considered view that there is no illegality or perversity in the judgment rendered by the first appellate court. 23. For the aforesaid reasons, there is no merit in the Second Appeal and accordingly the same is dismissed with costs confirming the judgments and decrees rendered by both the courts below.