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2007 DIGILAW 4195 (MAD)

Thangayal and Others v. Thangammal and Another

2007-12-13

S.TAMILVANAN

body2007
Judgment : S. TAMILVANAN, J. This appeal is directed against the judgment and decree dated 22.2.1996 made in O.S.No. 809 of 1993 on the file of the Principal Subordinate Judge, Erode. 2. The appellants herein were the defendants in the suit before the trial Court. The respondents 1 and 2 filed the suitseeking a decree for partition directing the division of item No. 1 of the suit properties into six equal shares and allot one such share to each of the respondents and to allot 1/12 share to each of the respondents in item No. 2 of the schedule mentioned properties. 3. In support of the case of the respondents/plaintiffs, the first respondent was examined as P.W. 1 apart frommarking the documents Exhibits A-1 to A-3 on the side of the respondents. The first appellant was examined as D.W.1 apart from‘ examining one Nallasamy as D.W.2 and marking Exhibits B-1 and B-23 on the side of the appellants/defendants. 4. Considering the oral and documentary evidence adduced and arguments advanced by both sides, the trial Court by the impugned judgment granted preliminary decree for partition as prayed for without costs. Aggrieved by which, this appeal has been preferred by the defendants in the suit. 5. It is not in dispute that one Vellagounder had two wives namely Palaniammal and the first appellant Thangayal. He had three daughters through the first appellant who are the appellants 2 and 3 and also the second respondent herein. The first respondent is the daughter of Vellagounder born through his first wife Palaniammal. The appellants 4 to 6 are the widow and minor children of Raju, deceased son of late Vellagounder born through the first appellant. There is no dispute with regard to the relationship of the parties. 6. Accordmg to the respondents/plaintiffs, the first item of the schedule of property was the self acquired property of their father Vellagounder and the second item of the schedule of property was his ancestral property. Based on the above pleadings, they have claimed l/6th share in the item No.2 of the said property. 7. The appellants have not disputed the facts that the second item of the suit property was the self acquired propertyof late Vellagounder. According to them, the first item of the suit property was also an ancestral property of late Vellagounder and not his self acquired property. 7. The appellants have not disputed the facts that the second item of the suit property was the self acquired propertyof late Vellagounder. According to them, the first item of the suit property was also an ancestral property of late Vellagounder and not his self acquired property. They have further contended that after the death of Vellagounder, there was a family arrangement in the year 1990 whereby the appellants 1 to 3 and the respondents 1 and 2 had relinquished their shares in favour of late Raju, after receiving consideration and therefore, the respondents/plaintiffs had no right for claiming partition in the properties. Admittedly, there is no evidence except the oral testimony of P.W.1 about the alleged family arrangement and the relinquishment of shares by the respondents herein in favour of the said Raju. The alleged family arrangement and relinquishment of shares have been denied by the respondents. 8. It is seen that the first respondent who was examined as P.W.1 has denied the alleged family arrangement. The firstappellant as D.W.1 has admitted that late Raju had sold one of the properties in favour of one Mani, wife of Vellaichamy, under the original of Exhibit B-3, whereby the said Raju had executed the sale deed for himself and also on behalf of his minor son, the sixth appellant herein and further, it has been admitted that in the said deed, the third appellant/Chinnammal and the respondents 1 and 2 had signed as witnesses. The certified copy of the sale deed dated 24.1.1990 obtained from the Sub Court, Erode has been marked as Exhibit B-23. 9. It is seen that D.W.2 has admitted in his evidence that under the original of Exhibit B-23, the said Raju had executed the sale deed in favour of his wife for a sale consideration of Rs. 18,000/-in which sisters of Raju had also signed. According to him, the details for writing the sale deed was furnished to the scribe only by the said Raju. 10. Learned counsel for therespondents submitted that as per the averments in Exhibit B-3 and Exhibit B-23, while executing the sale deed for himself and his minor son the sixth appellant herein, late Raju had admitted that the property was the self acquired property of his father Vellagounder, which is binding upon the appellants. 11. 10. Learned counsel for therespondents submitted that as per the averments in Exhibit B-3 and Exhibit B-23, while executing the sale deed for himself and his minor son the sixth appellant herein, late Raju had admitted that the property was the self acquired property of his father Vellagounder, which is binding upon the appellants. 11. The trial Court considering the evidence available on record and the arguments advanced by both sides, has held that there was no oral relinquishment made on the side of the respondents 1 and 2 in favour of Raju. Further, it is not in dispute that the second item of the property was only the joint family property of Vellagounder. In the absence of any relinquishment by the respondents, being the daughters of the deceased Vellagounder, they are also entitled to claim their share in the property and accordingly, the trial Court has granted preliminary decree for partition to allot 1/12 share to each of the respondents. With regard to the allotment of the share in the second item of the suit property there was no defence on the side of the appellants, in order to dispute the claim of the respondents. So far as the first item of the property is concerned, the appellants have raised their plea that it wasalso an ancestral property of the late Vellagounder and therefore, according to the appellants, the appellants are not entitled to 1/6th share each as held by the Court below. 12. In support of the contentions of the appellants, V.K. Nachimuthu, learned counsel appearing for the appellant, relied on the following decisions in P. Kamakshi Ammal v. P. Venkatesan 1978 LW 759, and Ranganayaki Ammal & Others v. S. R. Srinivasan & Others Ranganayaki Ammal & Others v. S. R. Srinivasan & Others Ranganayaki Ammal & Others v. S. R. Srinivasan & Others (1978) 1 MLJ 58,. 13. According to the learned counsel for the appellants, as per these decisions, the burden proof lies on the respondents to show that it was the self acquired property of the late Vellagounder. He has further contended that the first appellant who was examined as D.W.1 is none other than the wife of late Vellagounder and mother of the second respondent. According to the learned counsel for the appellants, as per these decisions, the burden proof lies on the respondents to show that it was the self acquired property of the late Vellagounder. He has further contended that the first appellant who was examined as D.W.1 is none other than the wife of late Vellagounder and mother of the second respondent. According to him, there had been no independent source of income for late Vellagounder to purchase the first item of the property and therefore, there was joint family nucleus in acquiring the first item of the suit property. 14. Per contra, A.K. Kumarasamy, learned counsel for the respondents submitted that as per Exhibit B-3 and Exhibit B-23, late Raju husband of the fourth appellant and father of the appellants 5 and 6, had sold a portion of the land on 21.1.1990 to the wife of D.W.2 stating that it was the self acquired property of his father late Vellagounder and that was also enjoyed by him independently and after his demise, he got property by way of succession and therefore the appellants cannot take a diferent stand in this suit and say it was the ancestral property of Vellagounder. 15. The learned counsel appearing for the respondents has further contended that as per the evidence of D.W.2, in the sale deed Exhibit B-23 executed by Raju in favour of the wife of D.W.2, obtaining signatures of the respondents would go to show that they had right in the property and further, as per the evidence of D.W.2, the respondents had also received portion of sale consideration from late Raju that apart, he drew the attention of this Court to Exhibit A-l the certified copy of the sale deed dated 24.2.1949 whereby it is seen that late Vellagounder had purchased the first item of the suit property for a sale considerationof Rs. 3,000/-. According to the learned counsel, late Vellagounder had purchased an extent of nearly 7 acres of land and admittedly hisancestral property was only 1.5 acres as admitted by the appellants and therefore, from andout of income derived from 1.5 acres of land Vellagounder could not have purchased nearly7 acres of land at the cost of Rs. 3,000/-. According to the learned counsel, late Vellagounder had purchased an extent of nearly 7 acres of land and admittedly hisancestral property was only 1.5 acres as admitted by the appellants and therefore, from andout of income derived from 1.5 acres of land Vellagounder could not have purchased nearly7 acres of land at the cost of Rs. 3,000/- even in the year 1949 and further, as per the averments of the sale deed, Vellagounder had purchased the land as his selfacquired property out of his own funds and therefore, the burden is upon the appellants to show that the first item of the property was also ancestral property of late Vellagounder. 16. In support of his contention, the learned counsel for the respondents has submitted the following decisions in D. S. Lakshmaiah & Another v. L. Balasubramanyam 2004 (3) LW 1949, wherein the Honourable Supreme Court held that there is no presumption of property being joint property only on account of existence of Joint Hindu Family and that one who asserts has to prove that it is a joint family property. In the aforesaid decision, the Honourable Apex Court held as follows: “ 18. …….. The legal principle, therefore,is that there is no presumption of a property being joint family property only on accountof 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.” 17. As per this ruling, it is clear that merely because there is existence of joint family the property, any property purchased by a member of the joint family need not be presumed as a joint family property and that the person who asserts has to prove that it is a joint family property. However, if there was joint family nucleus establishment then ownus would be shifted on the either side. 18. However, if there was joint family nucleus establishment then ownus would be shifted on the either side. 18. In the decision in Shrinwas Krishnarao Kango v. Narayan Devji Kango Others Shrinwas Krishnarao Kango v. Narayan Devji Kango Others Shrinwas Krishnarao Kango v. Narayan Devji Kango Others (1954) 1 MLJ 630 , (1955) 1 SCR 1 , it has been held as follows at Shrinwas Krishnarao Kango v. Narayan Devji Kango Others Shrinwas Krishnarao Kango v. Narayan Devji Kango Others Shrinwas Krishnarao Kango v. Narayan Devji Kango Others p. 634 of MLJ: “Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that nay item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.” 19. In the decision in Amirthalingam v. Uthayathamma &nd 15 Others Amirthalingam v. Uthayathamma &nd 15 Others Amirthalingam v. Uthayathamma &nd 15 Others (1999) 2 LW 713, this Court has held that mere existence of joint family nucleus alone is not enough it must be proved that there was surplus income for purchase of other properties and the same must be in the hands of the Managing Member of the family. 20. It is clear from the decisions that merely on the fact that there was existence of joint family property, it does not lead to any presumption that the property was acquired by the member of the family from the income of joint family property and that the burden rests upon the person, asserting the same as joint family property. In the case on hand, as per Exhibit A-1, late Vellagounder had purchased item No. 1 of the suit property, an extent of nearly 7 acres of land for the sale consideration of Rs. 3000/- on 24.2.1949. As per the averments of the sale deed, it was only his self-acquired property. In the case on hand, as per Exhibit A-1, late Vellagounder had purchased item No. 1 of the suit property, an extent of nearly 7 acres of land for the sale consideration of Rs. 3000/- on 24.2.1949. As per the averments of the sale deed, it was only his self-acquired property. As per Exhibit B-23, late Raju, husband of the fourth appellant and father of the appellants 5 and 6 had executed the original sale deed in respect of a portion of the property in favour of Mani wife of D.W.2 stating that it was the self acquired property of his father late Vellagounder and was also enjoyed by him independently. Further D.W.2 has categorically admitted that the details for preparation of the said sale deed Exhibit B-23 was given to the scribe only by late Raju and therefore, the admission made by the late Raju is binding on his legal heirs. As contended by the learned counsel for the respondents normally there could be no possibility for purchasing nearly 7 acres of land for a sum of Rs. 3,000/- in the year 1949, from and out of the income derived from 1.5 acres of agricultural land, after meting out the joint family expenses. The trial Court based on the evidence on record has held that the first item of the suit property was only the self-acquired property of Vellagounder. The evidence of D.W.2 that he had obtained witnesses‘ signature in E.B23 from the respondents with a view to prevent them from claiming any right and also his evidence that a portion of the sale consideration received by them from late Raju would also go to show that the first item was the self acquired property of late Vellagounder and not his ancestral property. 21. On the above facts and circumstances, in the light of the 11 decisions of the Honurable Apex Court, referred above, this Court is of the view that the burden is upon the appellants to establish that item No. 1 of the suit property was not the joint family property of Vellagounder. 21. On the above facts and circumstances, in the light of the 11 decisions of the Honurable Apex Court, referred above, this Court is of the view that the burden is upon the appellants to establish that item No. 1 of the suit property was not the joint family property of Vellagounder. It has been established by the respondents, by oral and documentary evidence that the first item of the suit property was only the self-acquired property of the late Vellagounder.Merely because the first appellant is the mother of the second respondent, it cannot be said that her evidence would impeach the document any evidences available of Exhibit A-1 and Exhibit B-23 and further, the first respondent is only the daughter of Vellagounder born through his second wife Paianiammal. In such circumstances, based on theoral evidence of the first appellant/D.W.1, it cannot be decided that there was family arrangement with regard to the item No. 1 of the suit property, without supported byevidence. 22. Therefore this Court isof the view that it has been clearly established by the respondents that item No. 1 of the suit property had been the self acquired property of late Vellagounder and the respondents being the daughters of late Vellagounder are each entitled to 1/6th share in the saidproperty. I could find no error or infirmity in the impugned judgment so as to warrant any Interference of this Court and hence the appeal fails. 23. In the result, confirming the judgment and preliminary decree passed by the Court below, the appeal is dismissed. However, there is no order as to costs. Consequently, the CMP is closed.