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2009 DIGILAW 5811 (MAD)

Sangodai Ammal & Others v. Arumugha Kone & Others

2009-12-21

B.RAJENDRAN

body2009
Judgment 1. The unsuccessful Plaintiffs in O.S.No.30 of 1986 on the file of Sub-Court, Tiruvannamalai are the Appellants in this Appeal. 2. For the sake of convenience, the parties shall be referred to as they were arrayed before the Court below. 3. The case of the Plaintiffs, as contained in the Plaint is as follows: One Vedi Kone was the father and kartha of the joint family and he had five sons namely (i) Chinnasamy Kone (ii) Chinnapillai Kone (iii) Gopal Kone (iv) Ponnusamy Kone, and (v) Arumuga Kone, the First Defendant in the Suit. By such constitution of joint family, the said Vedi Kone along with his sons, including the Plaintiff, was in possession and enjoyment of 400 sheep and 30 cows. The said Vedi Kone died leaving behind his five sons to own and possess the aforesaid cattles. Even after the death of Vedi Kone, his five sons, had been living jointly, working jointly and tending the sheep and cows jointly under the managership of Chinnasamy Kone, the eldest son. They were also cultivating the lands of third parties on waram basis. By utilising the income earned by the joint exertion of First Defendant and his brothers, certain items of lands were purchased in the name of Chinnasamy Kone for the benefit of all the members of the joint family. In or abou5t 1945, the First Defendant and his brothers orally divided the joint family properties in which item Nos. 1 to 5 of the lands, 100 sheeps and 10 cows were allotted to the share of the First Defendant. Similarly, the other brothers were also allotted properties, sheeps and cows as their shares. Pursuant to such partition, the respective shares were enjoyed by the respective allottees and were in possession of the same. 4. According to the Plaintiffs, except agriculture, the First Defendant has no other source of income. The First Defendant, utilising the surplus income derived from the joint family properties, purchased item No.1 of the property set out in B Schedule of the Plaint under a registered Sale Deed dated 111. 1959 in the capacity of Manager or Kartha of the joint family. Similarly, item Nos.2 to 8 in the B Schedule property were also purchased from and out of the joint family funds by the First Defendant as well as the income derived from the sons of the First Defendant. 1959 in the capacity of Manager or Kartha of the joint family. Similarly, item Nos.2 to 8 in the B Schedule property were also purchased from and out of the joint family funds by the First Defendant as well as the income derived from the sons of the First Defendant. The First Defendant, by selling the ancestral joint family sheep, constructed the terraced house which is set out as item Nos.4 and 5 in the A Schedule of the property. Thus, all the properties, which are set out in the A, B and C Schedule of the Plaint were joint family properties belonged to the First Defendant and his two sons Gopalakrishnan and Elumalai. The First Defendant and his two sons were jointly enjoying all the suit properties by treating them as their joint family properties. Therefore, the First Defendant and his two sons became entitled to 1/3rd share each in all the suit properties in their own right by birth. 5. According to the Plaintiffs, the son of the First Defendant namely Gopalakrishnan married the First Plaintiff herein according to Hindu rites and customs ten years before institution of the Suit and out of the wedlock, three children have born, however, one son namely Sivakumar, who was born on 12. 1977 died on 08.07.1983. The other two children are arrayed as Plaintiffs 2 and 3 in the Suit. Since the said Sivakumar was the then only son of the First Defendant, on his death, his 1/2 share out of 1/3rd share has to be diveded into 1/6 share among the Plaintiffs. The said Gopalakrishnan died intestate on 21.01.1984 leaving behind his undivided 1/6th share in the Suit A, B and C schedule properties to be equally inherited by Kannu Ammal, Second Defendant; Sangothai Ammal, First Plaintiff; Minor Malar, Second Plaintiff and Minor Kalaichelvi, Third Plaintiff, being the wife, daughters and mother of Gopalakrishnan respectively. Thus, each of them succeeded to 1/24 share in the suit properties. Therefore, the Plaintiff put together are entitled to 7/24 share in all the suit properties. Similarly, the First Defendant is entitled to 1/3rd share (8/24 share) and the Third Defendant is also entitled to 1/3rd share (8/24 share) in all the Suit properties. .6. Thus, each of them succeeded to 1/24 share in the suit properties. Therefore, the Plaintiff put together are entitled to 7/24 share in all the suit properties. Similarly, the First Defendant is entitled to 1/3rd share (8/24 share) and the Third Defendant is also entitled to 1/3rd share (8/24 share) in all the Suit properties. .6. According to the Plaintiffs, one month prior to the death of Gopalakrishnan on 21.01.1984, the Defendants 1 to 3 have developed enemical attitude towards them and driven them away from the joint family house and thereafter, the Plaintiffs have been living in the house of the mother of the First Plaintiff at Melapunjalai Village itself. They were driven out from the suit property because they demanded partition in the suit property. With a view to deprive the legitimate share of the Plaintiffs, the First Defendant has brought a sham and nominal Sale Deed dated 01.09.1984 relating to items 7 and 8 of the B schedule property in favour of the Forth Defendant for alleged sale consideration of Rs.15,700/-. The Plaintiffs are not parties to the Sale Deed dated 01.09.1984 and therefore, the sale is not binding on them. In any event, on the date of demise of Gopalakrishnan, on 21.01.1984, division in status took place. Therefore, for binding and effective adjudication, the Fourth Defendant is also impleaded in the Suit. Under those circumstances, the Plaintiffs issued a lawyer notice dated 30.09.1984 to the Defendants setting out the above facts and called upon them to effect partition of the joint family properties by metes and bounds and to allot 7 such shares to them. On receipt of the notice, a reply notice dated 010. 1985 was sent by the Defendants containing untenable averments, especially denying the joint family status or joint family property. On receipt of the notice, a reply notice dated 010. 1985 was sent by the Defendants containing untenable averments, especially denying the joint family status or joint family property. Thereafter, the Plaintiffs have filed the Suit for partition of the A, B and C schedule properties and to divide it into 24 equal shares taking good and bad soil into consideration and to allot 7 such shares to them; appoint an Advocate-Commissiner for division of the property; directing the Defendants to put the Plaintiffs in possession of their shares in the suit properties, failing which, the suit property may be delivered to them free from any encumbrance; directing the Defendants to render the income derived by them from the Plaintiffs’ share of the suit properties from February 1984 till the date of filing the Suit and direct them to pay the share of the income derived by them from the Plaintiffs’ share of properties; directing the Defendants to render accounts of the income derived by them from the Plaintiff’s share of the suit properties from the date of Plaint; ordering an enquiry to ascertain the past and future income derived by the Defendants from the Plaintiff’s share of the suit properties under Order 20, Rule 12, C.P.C. and for costs. .7. the First Defendant Arumugha Kone had filed a detailed Written Statement denying that there was ever a joint family existed under the managership of Chinnasamy Kone and they were jointly working together to earn the money. He would contend that the allegation that they were cultivating the lands of third parties on warram basis is false. In .other words, there was no joint family between the First Defendant and his brothers in which Chinnasamy was not the Manager. 8. According to the First Defendant, even before the death of his father 25 years ago, the First Defendant and his brothers have been living separately, earning separately and having mess separately. In view of the fact that the First Defendant’s father did not leave any cattle to be inherited, the question of joint family constitution does not arise. Consequently, this Defendant has not utilised the joint family income to purchase the Schedule mentioned properties. In view of the fact that the First Defendant’s father did not leave any cattle to be inherited, the question of joint family constitution does not arise. Consequently, this Defendant has not utilised the joint family income to purchase the Schedule mentioned properties. In fact, the mother of the first Defendant purchased items 4 and 5 of the A schedule under a registered Sale Deed dated 17.06.1927 out of her own funds, further, she purchased land to an extent of 3.09 cents in S. No.53/1 from the funds which she got from her father under a registered Settlement Deed dated 011. 1930. In or about 1945, there was a family arrangement and in the said family arrangement, the land in Survey No.53/1 to an extent of 3.09 cents and the self-acquired properties of Chinnasamy were divided between the brothers in which item No.1 to 3, a half share in the house and vacant land purchased by this Defendants mother in Survey No.53/1 were allotted to him. Thus, A Schedule property is the separate and self-acquired property of the First Defendant. There was no division of imaginary sheep and cows. After such family arrangement, the First Defendant has been enjoying his property as his won. The income from A Schedule property are not even sufficient to maintain the family, therefore, the question of purchasing the B and C schedule properties out of the income derived from A Schedule property does not arise. The First Defendant, by his dint and hardwork, cultivated lands of third parties on ‘warram basis’ by borrowings and by sale of jewels of the Second Defendant, thereby he purchased B Schedule property, thus, B schedule property is his separate property. The allegation that by selling the ancestral sheep, the First Defendant constructed the terraced house is false. The fact remains that the income from the lands owned by the First Defendant’s mother was utilised for such construction and also through private borrowings. .9. As far as C schedule property is concerned, except item No.5 of the C schedule property, the other items do not exist. Item No.5 was pledged in co-operative Urban Bank, Tiruvannamalai in the name of the First Defendant’s son and it was later redeemed. The said item No.5 was later handed over to the First Defendant so as to be used for marriage of her daughter in future. Item No.5 was pledged in co-operative Urban Bank, Tiruvannamalai in the name of the First Defendant’s son and it was later redeemed. The said item No.5 was later handed over to the First Defendant so as to be used for marriage of her daughter in future. In fact, the First Defendant and her father have executed a letter of undertaking on 29.04.1985 admitting the receipt of item No.5 of the C schedule. Apart from this, the First Plaintiff is in possession of one sovereign gold ring and one sovereign gold kappu belonging to the joint family. This Defendant did not show any hostile attitude towards the Plaintiffs or driven them out of the joint family as alleged. The legal notice sent by the Plaintiffs was properly replied by setting out the correct facts. In any event, the Suit filed by the Plaintiffs is not maintainable and it has to be dismissed. 10. Heard both parties. The point for consideration in the Appeal is whether the First Defendant is the absolute owner of the Suit properties, if so, whether the Plaintiffs are not entitled for any partition? .11. The learned Counsel for the Plaintiffs/Appellant strenuously argued that the Vedi kone, the original owner was in possession of lot of catties and sheeps, particularly, he had more than 400 sheeps and 30 cows. From and out of the income and by joint exertion of his sons, the first Defendant purchased the suit properties and it was in joint possession. The first son was managing the properties and the properties were purchased in the name of the first son. Therefore, the property which has been allotted to the share of Arumugha Kone from out of the property in the name of the first son Chinnasamy would be a joint family property and the same, after the partition would automatically devolved upon his sons and daughters. Admittedly, the First Plaintiff being the wife of the deceased son of the First Defendant and minor child as legal heirs of Gopalakrishnan are entitled for the partition. She contended that by examining the witnesses PW 2 to 4 it has been clearly established that the properties are purchased from and out of the income of the sale of the cattle and sheep and also they were purchased in the name of the First Defendant. She contended that by examining the witnesses PW 2 to 4 it has been clearly established that the properties are purchased from and out of the income of the sale of the cattle and sheep and also they were purchased in the name of the First Defendant. If really the properties have been purchased by the First Defendant’s eldest brother Chinnasamy in his own name, unless there is a joint exertion, there is no need for any partition and the fact that the Chinnasamy elder son has given the property to Arumuga Kone clearly indicate that they had the joint family status. Under those circumstances the Plaintiffs are entitled for the partition. She would also contend that there is no need or necessity for the sale of the portion of the property and the fact that they pleaded that the property was sold for family necessity by itself would constitute that there is a joint family status, otherwise they would not state that the property is their own property. Lastly she would also contend that the evidence of the parties would clearly indicate that there has been a joint family status and therefore, the Plaintiff is entitled for a partition. The Court below has not properly analysed the evidence on record and erroneously dismissed the Suit. 12. The learned Counsel for the Plaintiffs/Appellants would rely upon the documents namely Exs.A17 to A20, Permission obtained from the Government in the name of the First Defendant to permit the sheeps to grass in the forest, which would indicate the First Defendant was in possession of sheeps and cows, which was originally owned by Vedi Kone and after the death of Vedi Kone, the sheeps and cows become the joint family property. .13. Per contra, the learned Senior Counsel appearing for the Defendants/ Respondents 1 and 2 would specifically contend that there was never a joint family and the question of owning the schedule mentioned properties in the Plaint jointly does not arise at all. In fact in the pleadings, the Plaintiffs would only contend that from our of the income derived from the cattle and the income earned out of the property, which was acquired in partition by Chinnasamy, the brother, the properties have been purchased. In fact in the pleadings, the Plaintiffs would only contend that from our of the income derived from the cattle and the income earned out of the property, which was acquired in partition by Chinnasamy, the brother, the properties have been purchased. But, it is clearly stated that the properties was purchased in the name of Chinnasamy, who is the eldest member in the family but it does not mean that it is a joint family property. Even otherwise, the properties in question were purchased from out of the income derived out of the earnings from the land of the First Defendant-mother, which was allotted to him. The First Defendant was earning money from and out of the lands in his favour, which was originally owned by his mother, the First Defendant himself was cultivating the land from third parties and finally the amount from out of the sale proceeds and by pledging the gold jewelry of the Second Defendant, wife of the First Defendant, the properties were purchased. Therefore, the Plaintiffs have failed to establish either by oral evidence or documentary evidence to show that there was either a joint family nucleus status or a joint family status. In fact the documents produced by the Appellants/Plaintiffs are all only Sale Deeds, which would categorically indicate that the properties were purchased in the name of the First Defendant, especially Exs.A5 to A11 would categorically recite in unequivocal terms that it was purchased by the individual in his own name and there was anything to establish that there was any joint family nucleus or joint family status. The learned Senior Counsel would also contend that mearly because Armuga Kone’s name find place in the register of the Forest Department for permission to permit the cattle to graze the land, it will not confer any evidentiary value to show that the sheeps and cows belonged to the joint family. Furthermore, before the Court below, the Defendants also produced Exs.D6 and D7 to establish that there are many Arumuga kone in the village and therefore, the claim made by the Plaintiffs based on Exs.A15 to A19 are unsustainable. Under those circumstances as there was no oral evidence or documentary evidence to prove that the property in question is the joint family property, the Plaintiffs are not entitled to claim for any partition in the property. .14. Under those circumstances as there was no oral evidence or documentary evidence to prove that the property in question is the joint family property, the Plaintiffs are not entitled to claim for any partition in the property. .14. I have considered the argument of both sides. In order to determine the issues involved in this Appeal, it is necessary to look into the evidence of the witnesses as well as documentary evidence. The First Plaintiff, who was examined as PW1, in her cross-examination has stated as follows: .“TAMIL” .15. PW2 who is a resident in the village would go to the extent of stating even in the chief-examination as follows: .“TAMIL” 16. PW2 in his evidence has stated that Pachayammal is the wife of Vedi Kone, who had lands and that was allotted to the shares of her children. Such an evidence is contrary to the evidence of PW1. .17. PW4 is the father of the First Plaintiff. He would admit in the chief-examination that Vedi Kone, apart from the cattle, did not have any property at all and is not having any other avocation. He would also admit that “TAMIL” Therefore, without a shed for the so called 100 cattle and sheep it is not known how he would maintain them, which also emphasize the fact that there was no sheep and cattle owned by the said Vedi kone. Admittedly DW4, the father of the First Plaintiff also has given instruction to the Plaintiff for filing the Plaint. He also would admit that the gold jewelry was received by him and executed the document namely receipt along with his daughter, First Plaintiff. Therefore, from the over all evidence of the Plaintiffs along with the other witnesses, it is clear that .there is no link established to prove whether the suit properties were joint family properties of the First Defendant and it was owned jointly and enjoyed jointly. .18. The First Defendant, who was examined as DW1 in his evidence has stated that his father Vedi Kone was struggling to meet both ends and he does not own any property. His grant father settled some of his property in favour of his mother under Ex.D3 and out of the income from that property, her mother had purchased lands having an extent of 3 acres and 9 cents. Precisely, in his evidence, he would depose as follows: .“TAMIL” .19. His grant father settled some of his property in favour of his mother under Ex.D3 and out of the income from that property, her mother had purchased lands having an extent of 3 acres and 9 cents. Precisely, in his evidence, he would depose as follows: .“TAMIL” .19. On behalf of the Defendants, DW2, Ponnusamy, who is the another brother of the First Defendant, would also say that Vedi kone did not have any property in the form of cattle or sheep. He would specifically state that .“TAMIL” 20. The Fourth Defendant, who was examined as DW3 has stated that he purchased property for a valuable consideration and it is a genuine Sale Deed. 21. In this background, it is necessary to analyse the merits of the case. The learned Counsel for the Appellants relied upon the decision reported in Madanlal (Dead) by LRs. and others v. Yoga Bai (Dead) by LRs., AIR 2003 SC 188 for the proposition that when the property in question is raised and developed by the joint efforts of father and his sons, it is a joint family property and it is amenable for partition among father and his sons. But in that case the family settlement pleaded by the parties were not proved by any documentary evidence. In that case, the parties to the dispute were carrying on number of business under different names and by constituting different branches. Considering the finding of fact recorded by the Court below, the Honourble Supreme Court has categorically held that when it is proved that there was a joint exertion between the parties, definitely the property is available for division. Whereas, in the case onhand, the Plaintiffs failed to establish the factum of joint family nucleus or the factum of joint family enjoyment at any point time. Under those circumstances, the above said decision will not be applicable to the fact of the present case. 22. The learned Counsel for the Plaintiffs also relied upon Gunna J. Krishnan and others v. V.G.K. Rengachari and others, AIR 1965 Mad. 340 , wherein the Division Bench of this Court following the decision of the Supreme Court held that if the members of the joint family, who was joint in status and carrying on business and acquiring property by the joint labour and exertion, the presumption is that the property so acquired by them would be joint family property. 340 , wherein the Division Bench of this Court following the decision of the Supreme Court held that if the members of the joint family, who was joint in status and carrying on business and acquiring property by the joint labour and exertion, the presumption is that the property so acquired by them would be joint family property. It is very clear from this decision that even if there is no joint family nucleus, there should be clear pleading and proof of the joint exertion of all the persons and from the out of the joint exertion the property should have been purchased. Contra, in this case, there was no evidence at all that the properties have been purchased in the name of the First Defendant on behalf of the joint family, from and out of the income derived by joint exertion. Contra, the First Defendant proved that by engaging himself in agricultural activities as well as sale of the jewels of his wife, he acquired the property. Even some of the properties were settled in his name by his mother and therefore, it I can be never be construed as a joint family property. Under those circumstances, this decision is also not applicable to this case. 23. Lastly, the learned Counsel for the Plaintiffs relied upon Srinivas Krishnarao Kango v. Devji Kango and others, AIR 1954 SC 379 (1) for the proposition that 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. As stated supra when there is no joint family nucleus and the property in question was purchased out of the income derived by the property belonged to the mother of the First Defendant, such property cannot be said to be a joint family property. 24. The learned Senior Counsel appearing for the Respondents 1 and 2 would rely upon the judgment of the Supreme Court reported in D.S. Lakshmaiah & anr. V. L. Balasubramanyam & Anr, 2004 (3) LW 49 for the proposition that there is no presumption of a property being joint family property only on account of existence of a Joint Hindu Family. The learned Senior Counsel appearing for the Respondents 1 and 2 would rely upon the judgment of the Supreme Court reported in D.S. Lakshmaiah & anr. V. L. Balasubramanyam & Anr, 2004 (3) LW 49 for the proposition that there is no presumption of a property being joint family property only on account of existence of a Joint Hindu Family. It was further contended that one who asserts that the property is amenable for partition property as being joint family property has to prove that it is a joint family property. The learned Senior Counsel further relied the decision reported in Ramaswamy and another v. R. Murugan, 2001 (1) CTC 132 for the proposition that the initial burden of proof is on such person to prove that suit properties are not self-acquired properties. Therefore, the burden of proof cannot be shifted to Defendants, as Defendants cannot be directed to prove that the properties are not joint family properties and it was only self-acquired properties. The learned Senior Counsel further relied upon the decision reported in Puthiavinayagam Pillai v. Sivasankaran Pillai, 1997 (1) LW 482 , for the proposition that burden of proof rests on the person who assets to that effect the presumption as to joint family acquisition would arise where the acquisition is with help of a nucleus. Purchase in the name of “individual member out of his own earnings and the claim of purchase on behalf of joint family has to be negatived. Unless there was a joint family nucleus alleged and proved, there cannot be a joint family property for division. The learned Senior Counsel also relied upon the decision reported in The Vijaya College Trust v. The Kumta Co-operative Arecanut Sales Society Limited and another, AIR 1995 Kar. 35 for the proposition that the ancestral property must have been inherited by a male Hindu from his father, father’s father, etc. and not ancestral property gifted and inherited be constituted as ancestral property. 35 for the proposition that the ancestral property must have been inherited by a male Hindu from his father, father’s father, etc. and not ancestral property gifted and inherited be constituted as ancestral property. 25.By applying the principles enunciated in the above decision to this case, where the First Defendant has established that the property was originally owned by his mother, which is also admitted by all the parties and Vedi Kone, father of the First Defendant has no immovable properties of his own and even for the ownership of the cattle, no proper legal evidence has been produced by the Plaintiffs, it has to be held that the properties have been purchased by First Defendant from and out of his earnings as well as the earnings from the land acquired form his mother. Therefore, it is very clear that the properties in question are the absolute property of the First Defendant and when once it held to be his self acquired property, the Plaintiffs have no legal right to compel the Defendants to come forward to partition the same by metes and bounds. 26. The Court below has properly appreciated the evidence on record and gave a clear finding to come to a correct conclusion that the property in question is the absolute property of the First Defendant and hence there is no need for partition as claimed by the Plaintiffs. The parties have not made out any case to interfere with the well considered decree and judgment of the Court below. At this length of time, both the Counsel fairly submitted that pending Appeal, the First Defendant died, the First and Second Plaintiff in the Suit also died and their Legal Representatives are already on record. Since the First Defendant died during the pendency of Appeal, whatever rights the First Defendant had would automatically devolve upon the legal heirs as per the testamentary succession. Since, both the Counsel could not say in what manner, after the demise of the First Defendant, the parties with be entitled to a share in the property, this Court need not go into the details of the rights of the parties to share the property after the demise of the First Defendant inasmuch as it was held that the suit properties are the absolute property of the First Defendant. 27. 27. In the result, the decree and judgment passed by the Court below is confirmed and the First Appeal is dismissed. No costs.