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Madras High Court · body

2010 DIGILAW 7 (MAD)

Jayalakshmi & Others v. Dhanasekaran

2010-01-01

R.MALA

body2010
Judgment : 1. The Second Appeal is filed against the judgment and decree dated 16.04.2002 in A.S. No.12 of 2001 on the file of the Sub-Court, Ponneri, reversing the judgment and decree dated 30.03.2001 in O.S. No.556 of 1996 on the file of the District Munsif Court, Ponneri. 2. The averments in the Plaint are as follows: (i) The First Plaintiff is the mother of Plaintiffs 2 to 4 and Defendant. The Defendant is the eldest son and kartha of the family. The First Plaintiff’s husband is Thangavelu. Both of them stayed at Bandikavanoor Village. The said Thangavelu died in 1980. After his death, the First Plaintiff along with Plaintiffs 2 to 4 and Defendant had purchased a house site in the Village and constructed a thatched house and living thee as joint family. (ii) In 1991, they purchased the suit property, which is a vacant site out of the joint family fund through the registered Sale Deed dated 20.02.1991. They constructed a Pucca brick built house out of the joint nucleus. All the Plaintiffs and Defendant are residing in the property. No partition is effected so far. Since, the Defendant is the eldest male member of the family and kartha of the family, the property has been purchased in his name. He has no other independent source of income. The brick building was constructed in the year 1992. All the Plaintiffs are having equal rights in the suit property. They reserve their right to file a Suit for partition. (iii) Now, the Defendant attempted to alienate the property, so the Plaintiffs are constrained to file a Suit for permanent injunction restraining the Defendant from alienating in any manner or assigning in favour of the third parties, without the knowledge and consent of the Plaintiffs and they prayed for a decree. 3. The gist and essence of written statement filed by the Defendant is as follows: (i) The Plaintiffs have no right over the property. There is no joint Undivided Hindu Family consisting of the Plaintiffs and Defendant. The relationship is correct. There is no such joint family at all. The Defendant’s father Thangavelu died in or about 1978. The family consisting of Thangavelu and his wife and sons did not own any property, either ancestral or self-acquired. Thangavelu was a beedi worker and the income earned by him was not even sufficient to make both ends meet. The relationship is correct. There is no such joint family at all. The Defendant’s father Thangavelu died in or about 1978. The family consisting of Thangavelu and his wife and sons did not own any property, either ancestral or self-acquired. Thangavelu was a beedi worker and the income earned by him was not even sufficient to make both ends meet. The other members of the family were not employed at all. (ii) After the death of Thangavelu, the family condition became very miserable. At that time only the Defendant was able to secure an employment as a turner in Majestic Enterprises Private Limited at Alinjivakkam Village. Out of his income only, be acquired a small manaicut for putting up a residential hut therein. No other member of the family had contributed anything. Later on, this Defendant with the help of the savings effected out of his income purchased the suit property for his own use for Rs.5,000/-from the previous owner by means of a registered Sale Deed dated 20.02.1991. He purchased the property in his own capacity and not as Manager of the joint family. There is no ancestral property or ancestral nucleus. No contribution either physical or monetary was made by any of the Plaintiffs either for the purpose of the site or for the construction of the house. In fact, he has obtained loan from L.I.C. of India and out of his own funds, earnings and borrowings, he has made a construction. He has also obtained Building Plan from Panchayat Union, Sholavaram. The Patta for the site and the Electric Service connections, stands in his name. So, he is the absolute owner of the property. The Defendant herein had sometime permitted one of his younger brother, byname, Devendran to live in a portion of the suit house on purely humanitarian and compassionate ground. Taking undue advantage of the indulgence shown by this Defendant, the Devendran had ganged up with the other Plaintiffs and put forward a false claim to the suit property. Hence, he prayed for the dismissal of the Suit. 4. The Trial Court after considering the averments both in the Plaint and Written Statement had framed two points for consideration and considering the oral evidence of PWs 1 and 2, DWs 1 and 2 and Exs.A1 to A9, Exs.B1 to B13, granted an injunction and decreed the Suit, without costs. Hence, he prayed for the dismissal of the Suit. 4. The Trial Court after considering the averments both in the Plaint and Written Statement had framed two points for consideration and considering the oral evidence of PWs 1 and 2, DWs 1 and 2 and Exs.A1 to A9, Exs.B1 to B13, granted an injunction and decreed the Suit, without costs. Against that, the Defendant preferred an Appeal. The First Appellate Court after hearing the arguments of both counsels had framed two points for consideration and set aside the decree and judgment passed by the Trial Curt and allowed the Appeal and dismissed the Suit. Against that, the present Second Appeal has been preferred by the Plaintiffs. 5. At the time of admission of the Second Appeal the following substantial questions of law have been framed for consideration: i. Whether a property purchased in the name of the Kartha of a Hindu Undivided Family can be claimed to be the absolute property of the Kartha? ii. Whether the Kartha of a Hindu Undivided Family has the primary duty and burden of proof cast upon him to show that the property standing in his name is not the Joint Family property, but his own absolute property? iii. Whether the Lower Appellate Court was right in not considering the effect of Section 101 and Section 114 of the Indian Evidence Act, with regard to the burden of proof and the presumption to be drawn in favour of the Appellant? 6. Substantial Question of Law Nos.i to iii: The Appellants as Plaintiffs filed a suit for bare injunction, to restrain the Respondent/Defendant from alienating the suit property stating that the suit property is a joint family property and they are having a share in the suit property. Since, the Respondent/Defendant attempted to alienate the property, the Plaintiffs have come forward with the Suit. The Defendant resisted the Suit contending that out of his own earnings, he had purchased the suit property. There is no joint family ancestral nucleus. Hence, it is his separate property. The Defendants further pleaded that he made a construction out of his own earnings and borrowings and from the loan obtained from L.I.C. of India and therefore, he prayed for the dismissal of the Suit. The Trial Court after framing necessary issues and considering the oral and documentary evidence, granted an injunction. Hence, it is his separate property. The Defendants further pleaded that he made a construction out of his own earnings and borrowings and from the loan obtained from L.I.C. of India and therefore, he prayed for the dismissal of the Suit. The Trial Court after framing necessary issues and considering the oral and documentary evidence, granted an injunction. Against that, the Defendant had preferred an Appeal, which was allowed. Against that, the present Second Appeal has been filed by the Plaintiffs. 7. The learned counsel for the Appellants would contend that since the Defendant/Respondent herein is the eldest male member of their family, he is the kartha of the family and therefore, the property has been purchased in his name and so, it is a joint family property. The learned counsel would further submits that the Defendant/Respondent has not pleaded how he had the financial status to purchase the property as well as to make constructions by spending a huge sum of Rs.1,00,000/-. The Defendant/Respondent had taken a loan of Rs.25,000/-only from L.I.C. of India and his monthly income is also Rs.1,000/- to Rs.1,5000/- in the year 1989 and Ex.A3-Pass Book has also not proved the same. The learned counsel further submits that the Trial Court had considered these aspects in a proper perspective and come to the correct conclusion, but whereas the First Appellate Court had not considered all the aspects in a proper perspective and hence, he prayed for the allowing of the Second Appeal. To substantiate his claim, he relied upon the decision reported in Kulwant Singh v. Makhan Singh (deceased) by L.Rs., AIR 2003 P & H 142. 8. Per contra, the learned counsel for the Respondent would contend that a person, who plead that the property is a joint family property must prove the same. The Trial Court had not considered the same, but, the First Appellate Court had considered the same and came to the correct conclusion. The presumption is that the Respondent is not the kartha of the family. The First Appellate Court had considered this aspect in a proper perspective and came to the correct conclusion. The Trial Court had not considered the same, but, the First Appellate Court had considered the same and came to the correct conclusion. The presumption is that the Respondent is not the kartha of the family. The First Appellate Court had considered this aspect in a proper perspective and came to the correct conclusion. To substantiate his claim, he relied upon the decision reported on K.S. Santhalingam v. Meenakshi Ammal and another, 1970 (2) MLJ 86, and would submit that it is the duty of the Plaintiffs to prove that the suit property is a joint family property, but, they miserably failed to prove the same and hence, the First Appellate Court had come to the correct conclusion and there is no infirmity or illegality in the judgment passed by the First Appellate Court and hence, he prayed for the dismissal of the Second Appeal. 9. The relationship of both parties is admitted. The First Plaintiff’s husband is Thangavelu. The First Plaintiff is the mother of Plaintiffs 2 to 4 viz., Devendran, Venkatesan and Raghu respectively and Defendant-Dhanasekaran. The Defendant is the eldest son and kartha of the family. They are having daughters also. But, they were not impleaded as parties. It is a Suit for bare injunction to restrain the Defendant not to alienate the property, without the consent of the Plaintiffs. As per Ex.A1, on 20.02.1991, the suit property has been purchased in the name of Respondent/Defendant, Admittedly, the family has not owned any property. Thangavelu, who is the father of both parties, is only a beedi worker and he was earning a very substantial income. The presumption of law is, when in a Suit for partition a party claims that any particular item of the property is a joint family property, the burden of proving it rest on the party asserting it. To render the property a joint, the Plaintiff must prove that the family was possessed of some property, with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is a joint family property or that it was purchased with the joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. None of these alternatives is a matter of legal presumption. Even though, the Plaintiffs/Appellants have stated that the property has been purchased in the name of Defendant/Respondent out of their joint income, but, there is no evidence to show that the other Plaintiffs/Appellants were employed. What is their income and what is their contribution for purchase of the suit property, are also not known. At this juncture, it is appropriate to consider Ex.B5-Pay Slip and Ex.B3-Pass Book of State of India, which shows that the Respondent/Defendant was employed in Majestic Enterprises. 10. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the Respondent reported in K.S. Santhalingam v. Meenakshi Ammal and another, 1970 (2) MLJ 86, wherein this Court has held as under: “It is well settled if members of a joint family, who are joint in status and who either carry on business or by their joint efforts, earn and acquire property with such income, even without the aid of any ancestral nucleus, the presumption is that the property so acquired by them is joint family property in which the sons of the acquirers would get right by birth. But this presumption can be rebutted if it is proved that the acquirers intended to own the property as co-owners between themselves, in which case the property would be joint property as distinguished from joint family property. The presumption is in favour of regarding the property as joint family property.” 11. Now, it is appropriate to consider the decision relied upon by the learned counsel appearing for the Appellants reported in Kulwant Singh v. Makhan Singh (deceased) by L.Rs., AIR 2003 P & H 142, wherein, the Punjab and Haryana High Court has held as under: “12. The assertion of the Plaintiff is that the suit property was the individual property of all the four brothers, whereas case of the Defendant is that the above said property was the Joint Hindu Family property of the parties as the Ice Factory was installed and the property was purchased by them from the income of the Joint Hindu Family. The burden to prove that the aforesaid property was Joint Hindu Family property lies upon the Defendant. The burden to prove that the aforesaid property was Joint Hindu Family property lies upon the Defendant. There is presumption that every such family which is joint in food, worship and residence is the Joint Hindu Family, but there is no presumption that the properties owned by members of such Joint Hindu Family are the Joint Hindu Family property or that the family possesses joint property. To prove that a property which is in the name of an individual member of Joint Hindu Family is the4 Joint Hindu Family property, two things have to be established i.e., that there is a nucleus of a Joint Hindu Family property and the said property was purchased by the said individual in his name from the said nucleus of the Joint Family property. The burden to prove that the property owned by a member is Joint Hindu Family rests upon the party, who so asserts.” 12. It is the duty of the Appellants/Plaintiffs to prove that the suit property is a joint family property. Except the ipse dixit of PWs 1 and 2, who are none other that the Plaintiffs 2 and 1, no independent evidence is available. No independent witness has been examined to prove that the Plaintiffs 2 to 4/Appellants 2 to 4 were doing some coolie work and that out of their joint earnings the suit property has been purchased and the ratio of their contribution to the family is also not known. 13. At this juncture, it is appropriate to incorporate the relevant portion of Sections 101 and 114 of Evidence Act, which reads as under: “Section 101 of Evidence Act, deals with, Whoever desires any Court to give judgment as to which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 114 of Evidence Act, deals with The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” 14. As per the Hindu Law, a person, who asserts the property is a joint family property, the burden of proof is upon him to prove the same. As per the Hindu Law, a person, who asserts the property is a joint family property, the burden of proof is upon him to prove the same. So, as per Section 101 of Evidence Act, the Plaintiffs/Appellants alone are having the burden to prove that the suit property is a joint family property of Appellants/Plaintiffs and Respondent/Defendant. Since, there is no evidence to show that there is a joint family ancestral nucleus or joint exertion, in such circumstances, as per Section 114 of Evidence Act, this Court has to consider the evidence of the parties and has to come to the conclusion, whether the property is a joint family property? 15. On considering the oral evidence of PW 1/Second Plaintiff/second Appellant, it is seen that he has deposed that he has three children and that from 1980 onwards, he is earning Rs.1,000/- to Rs.1,500/- per month. He had also stated that he is doing agricultural work and that he had obtained crop loan from Cholavaram Society and he is also cultivating the lands on lease. Except the ipsi dixit of PW1, there is no document to show that he was cultivating the lands on lease basis and he obtained crop loan. 16. At this juncture, it is appropriate to consider the documents filed by the Appellants/Plaintiffs. Ex.A2 is the Ration Card. Ex.A3 is the Voter’s List. Ex.A4 is the Puberty Invitation Card of Respondent/Defendant’s sister. Exs.A5 to A7 are the Marriage Invitation Cards of the Appellants 2 to 4/Plaintiffs 2 to 4. On considering the documents, I am of the opinion that there is no iota of evidence before this Court to show that the Appellants/Plaintiffs gave money for purchase of property under Ex.A1. Even though, the Appellants/Plaintiffs have not proved that the property is a joint family property, but however, the Respondent/Defendant has filed his Pay Slip-Ex.B5 and Pass Book-Ex.B3. On considering Ex.B5-Pay Slip for November 2000, it is seen that his gross income is Rs.2,755/- and his take home salary is Rs.2,424/-. On considering Ex.B3-Pass Book of State Bank of India, it is seen that the Pass Book stands in the name of one A. Badrinarayanan and T.Dhanasekaran. The account book was closed on 01.07.1990 and a sum of Rs.7,587.95 has been received by him. Ex.A1 is dated 20.02.1991 for Rs.5,000/-, which shows that he is having the habit of saving. On considering Ex.B3-Pass Book of State Bank of India, it is seen that the Pass Book stands in the name of one A. Badrinarayanan and T.Dhanasekaran. The account book was closed on 01.07.1990 and a sum of Rs.7,587.95 has been received by him. Ex.A1 is dated 20.02.1991 for Rs.5,000/-, which shows that he is having the habit of saving. In such circumstances, I am of the opinion that the Respondent herein/Defendant has proved that he has purchased the property out of his own income and by obtaining loan, he had made a construction. The letter received from L.I.C. of India-Ex.B2 dated 01.02.2001 and Receipt for payment of loan-Ex.B6, dated 03.07.2000, shows that he had obtained a loan of Rs.25,000/- for making construction. He has given an explanation that he had sold his wife’s jewels to meet out the construction expenses. Considering the same, I am of the view that even though the burden is not upon the Respondent/Defendant to prove that it is his separate property, since the Appellants/Plaintiffs have not proved that the property has been purchased out of the joint exertion, the Respondent herein/Defendant has proved that it is his separate property. In such circumstances, I am of the opinion that the First Appellate Court had considered these aspects and come to the correct conclusion that the property is not a joint family property of the Plaintiffs/Appellants and Defendant/Respondent, but it is the self-acquired property of the Defendant/Respondent. 17. Considering the facts and circumstances of the case, I am of the view that the Appellants/Plaintiffs have failed to prove that the property is a joint family property. In such circumstances, the First Appellate Court is correct in holding that the suit property is a separate property of the Respondent herein. Hence, the Appellants herein/Plaintiffs are not entitled to injunction as prayed for in the Plaint. Substantial Question of Law Nos. I to iii are answered accordingly. 18. For the foregoing reasons, I do not find any infirmity or illegality in the judgment passed by the First Appellate Court and it is hereby liable to be confirmed. The Second Appeal is liable to be dismissed. 19. In fine, i. the Second Appeal is dismissed. ii. The decree and judgment passed by the First Appellate Court is hereby confirmed. iii. No costs.