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2014 DIGILAW 3256 (MAD)

Arumugham v. Saminathan

2014-09-11

PUSHPA SATHYANARAYANA

body2014
Judgment : 1. The defendants in O.S. No. 69 of 2005 before the Additional District Judge, (Fast Track Court No. I) Salem, are the appellants in A.S. No. 277 of 2007 and the plaintiff, who filed O.S. No. 69 of 2005, has filed Cross Appeal in A.S. No. 938 of 2009 against the judgment and decree dated 30.6.2006. 2. Since the issued involved in these appeals is inter-connected, they are disposed of by this common judgment. 3. For the sake of convenience, the parties will be referred to by their description before the trial Court. 4. This is a case of partition wherein the plaintiff and the second defendant are the brothers. The first defendant and the third defendant are the father and mother respectively. According to the plaintiff, they constituted a Hindu undivided joint family. The case of the plaintiff is that the suit properties were inherited by the joint family from his grand father Dharmalinga Gounder by way of partition among his family members, viz., Dharmalinga Gounder, first defendant and his brother Adhimoolam while the other properties were purchased in the name of the first defendant being the kartha of the joint family and also in the name of the third defendant, who is the mother of the plaintiff and the second defendant. The first item of the suit properties was said to have been purchased out of the joint family income from one Allimuthu in the name of the third defendant under sale deed dated 25.3.1964. Thereafter, another 1/3rdshare of the property was purchased from Adhimoolam under registered sale deed dated 09.02.1974. Another portion of the first item of the suit properties was purchased in the name of the first defendant from one Alamelu Ammal and her son under sale deed dated 12.6.1974. According to the plaintiff, all these purchases were made out of joint family funds. It is stated that there were also two others sales in favour of the third defendant on 05.10.1987 and also on 06.9.1988. Thus, according to the plaintiff, the entire properties were purchased out of joint family nucleus and the suit properties are joint family properties. According to the plaintiff, all these purchases were made out of joint family funds. It is stated that there were also two others sales in favour of the third defendant on 05.10.1987 and also on 06.9.1988. Thus, according to the plaintiff, the entire properties were purchased out of joint family nucleus and the suit properties are joint family properties. The further case of the plaintiff is that though some of the properties stand in the name of his mother, viz., third defendant, and a few properties are standing in the name of the second defendant, who is his brother, they cannot claim individual right over the same as they are purchased from and out of the joint family nucleus. The plaintiff had further stated that the family was doing only agricultural operations and excepting the agricultural income, there was no other income. As the third defendant was a house wife not having any individual income to purchase the property, according to the plaintiff, the entire properties are joint family in nature the plaintiff claims 1/3rdshare in the suit properties and the first and second defendants are entitled to remaining 2/3rd share. It is also averred that despite the fact that the properties are joint family properties though purchased in the names of the defendants 2 and 3, they are treating them as their individual property not allotting a share to the plaintiff and that in view of the claim made by the plaintiff, the defendants are taking emergent steps to sell the properties to third parties. The plaintiffs have further contended that there are also jwelleries and cash in the custody of the defendants 2 and 3. Therefore, the plaintiff has sought for partition of 1/3rdof the share of the suit properties and for mesne profits. 5. Denying the facts supporting the cause of action in the plaint, the first defendant had filed the written statement which was adopted by the defendants 2 and 3. The defendants denied the fact that the properties were not partitioned earlier and that they were joint family properties. Most of the properties mentioned in the plaint belonged to the plaintiff's grandfather Dharmalinga Gounder, the first defendant and one Adhimoolam. The other properties mentioned in the plaint were not joint family properties and the allegation of the plaintiff that the family had jewels and cash were also denied by the defendants. Most of the properties mentioned in the plaint belonged to the plaintiff's grandfather Dharmalinga Gounder, the first defendant and one Adhimoolam. The other properties mentioned in the plaint were not joint family properties and the allegation of the plaintiff that the family had jewels and cash were also denied by the defendants. The purchases alleged to have been made under sale deeds dated 25.3.1964 and 09.02.1974 in the name of the third defendant and the sale in favour of the first defendant under sale deed dated 12.6.1974 are all denied. The panchayat convened as alleged by the plaintiff on 12.3.2005 and 13.3.2005 in the presence of the panchayat President and others for an amicable partition, was also denied by the defendants. The first defendant had further alleged that the suit properties were purchased by him out of his own earnings and the sale in favour of the third defendant were purchased through D Card and from her sridhana properties and her small savings. The first defendant had been doing agricultural activities in others' lands as well as on the lands taken by him on lease and earn money. The joint family comprising of the first defendant, his father did not have sufficient income. Therefore, they were individually earning money by doing agricultural operations. The first defendant had purchased the properties from his brother and his paternal uncle's wife out of his own individual income. The other properties mentioned in the first item were purchased in the name of the third defendant through D Card and her sridhana. It is stated that on the date of acquisition of the above said lands, the plaintiff and the second defendant were studying in school. The first defendant has alleged that the plaintiff was not having a cordial relationship with his wife and, therefore, had proceeded against her in the Court and that he had helped him out in obtaining a divorce and also cancelled the arrest warrant issued against the plaintiff for non-payment of the maintenance by him to his wife. It is further averred that though the plaintiff was a Teacher, he was leading a wayward life. The defendants further denied the possession of the jewellery and the cash as alleged in the plaint. According to the defendants, the plaintiff had not established the character of the properties as joint family properties and hence, prayed for dismissal of the suit. 6. The defendants further denied the possession of the jewellery and the cash as alleged in the plaint. According to the defendants, the plaintiff had not established the character of the properties as joint family properties and hence, prayed for dismissal of the suit. 6. Before the trial Court, the plaintiff examined himself as P.W.1 and marked Exs. P.1 to P.7. To nullify the evidence of the plaintiff, the first defendant examined himself as D.W.1 besides marking Exs. B.1 to B.12. 7. The trial Court, after analysing the oral and documentary evidence available on record, finding that the item No. 1 of the suit properties are the joint family properties, came to the conclusion that the plaintiff is entitled to 1/3rdshare in the first item of the plaint schedule property and for the relief of permanent injunction against the defendants. Accordingly, the learned trial Judge decreed the suit in respect of item No. 1 of the plaint schedule property and while dismissing the suit in respect of item Nos. 2 and 3 of the plaint schedule properties. Aggrieved by the decree granted in respect of item No. 1 of the plaint schedule property, the defendants preferred A.S. No. 277 of 2007 and challenging the dismissal of the suit in respect of item Nos. 2 and 3 of the plaint schedule property, the plaintiff has come up with Appeal No. 938 of 2009. 8. The suit being one for partition filed by the plaintiff basing his claim that the properties are joint family in nature and since the relationship between the parties is not disputed, the question needs to be discussed in these appeals is whether the suit properties are joint family properties. 9. At the outset, it is to be noted that the first defendants have denied the claim of the plaintiff stating that there was no joint family property and the suit mentioned properties were all self-acquired properties purchased from out of their own individual income. The patta stands in the name of the first defendant in respect of S. No. 81/1 for an extent of 3 Hectares and oddis filed under Ex. A.1. Similarly, Ex. A.2 is the patta standing in the name of the third defendant, who is the mother of the plaintiff, regarding second item of the suit properties in S. Nos. 42/2A and 86/5. Patta under Ex. A.1. Similarly, Ex. A.2 is the patta standing in the name of the third defendant, who is the mother of the plaintiff, regarding second item of the suit properties in S. Nos. 42/2A and 86/5. Patta under Ex. A.3 in respect of item No. 3 of the suit properties in S. Nos. 86/6 and 86/8 stands in the name of the defendants 1 and 3. The sale deed dated 25.3.1964 in favour of the third defendant in respect of S. Nos. 86/6 and 86/8 is marked as Ex. B.1. 10. The only contention of the plaintiff is that the suit properties originally belonged to his grandfather Dharmalinga Gounder and the same were inherited by their family by way of partition. The case of the plaintiff is that the properties under sale deeds Exs. B.1 to B.5 standing in the name of the defendants 1 as well as 3, were all joint family in nature having been purchased the same in the name of the first defendant as the kartha of the family and the third defendant as the wife of the kartha of the family. 11. From a perusal of Ex. B.1 dated 25.3.1964, it can be seen that the property in item No. 3 has been sold to the third defendant by one Allimuthu Gounder. Ex. B.2 dated 09.02.1974 has been purchased in the name of the first defendant from one Adhimoolam which is in S. No. 84/1 relating to item number 1 of the suit properties. Ex. B.3 is again standing in the name of the first defendant. Ex. B.4 sale deed is dated 05.10.1987 which is in favour of the third defendant with respect to the property situate in S. Nos. 86/2A and 86/4. Further, it is contended by the learned counsel for the defendants that it is not available for partition as the same has been sold long back. Ex. B.5 dated 06.9.1988 is also in the name of the third defendant. 12. Before the trial Court, the first defendant, who examined himself as D.W.1, subjected himself to cross-examination. The evidence of the first defendant, being the father of the plaintiff and the second defendant, assumes importance in deciding the character of the property sought to be partitioned. In this regard, it would be appropriate to refer to his deposition during his cross-examination and the relevant statements made by him are extracted below:- “TAMIL” 13. The evidence of the first defendant, being the father of the plaintiff and the second defendant, assumes importance in deciding the character of the property sought to be partitioned. In this regard, it would be appropriate to refer to his deposition during his cross-examination and the relevant statements made by him are extracted below:- “TAMIL” 13. From the above evidence of D.W.1, it is clear that the father of the first defendant had joint family property and from out of the nucleus, the suit properties have been purchased. It is also admitted by D.W.1 that he belongs to agricultural family and he had engaged his sons also in agricultural activities. From his evidence, it can further be seen that the first defendant had married his sister's daughter. The first defendant has not established that the third defendant had any independent income besides the agricultural income the family had. The first defendant also had not established that he had sufficient income on the dates of purchase under Exs. B.1 to B.5 independent of the family agricultural income. When the third defendant is not proved to be educated or had independent income by earning, it cannot be accepted that she had sufficient means to purchase properties in her name. Though it is alleged by the first defendant that the properties standing in the name of the third defendant were purchased out of her own sridhana properties and with the help of D Card, there is no concrete evidence from the defendants to substantiate his claim. 14. It is settled principle of law that the burden to estalish that the properties are joint family in nature, is on the person who alleges the same. In this regard, it would be useful to advert to the following decisions:- (i) In Kandaswami Chettiar and others vs. Gopal Chettiar and others [1975 (1) MLJ 184 wherein in paragraph 17, this Court has observed as follows:- “.... If a co-parcener desires to establish that la property in the name of a female member of the family or in the name of the manager himself has to be accepted and treated as property acquired from the joint family nucleus, it is absolutely essential that such a co-parcener should not only barely plead the same, but also establish the existence of such joint family funds or nucleus. Even if the joint family nucleus is so established, the presumption that the accretions made by the manager or the purchases made by him should be deemed to be from and out of such a nucleus does not arise, if there is no proof that such nucleus of the joint family is not an income-yielding apparatus. The proof required is very strict and the burden is on the person, who sets up a case that the property in the name of a. female member of the family or in the name of the manager or any other co-parcener is to be treated as joint family property. Such burden could be said to have been discharged and the usual presumption that such acquisitions are attributable to the joint family nucleus and its income would not automatically arise, but would depend upon proof of the availability of such surplus income or joint family nucleus on the date of such acquisition or purchases. The same is the principle even in cases where moneys were advanced on mortgages over immovable properties. That such a presumption would arise only in the above circumstances, are now very well established.” (ii) In D.S. Lakshmaiah and another vs. L. Balasubramanyam and another [2004 – 3 – L.W. 49], while deciding the onus of the person, the Hon'ble Supreme Court, in paragraph 18 of the judgment has held as follows:- “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 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.” (iii) In Appasaheb Peerappa Chamdgade vs. Devendra Peerappa Chamdgade and others [ (2007) 1 SCC 521 ], while dealing with the initial burden of proving, Their Lordships have observed in paragraph 17 as under:- “Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then 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 by cogent and necessary evidence.” In the instant case, the plaintiff had pleaded and proved that either the first defendant or the third defendant had any independent income to purchase the properties whereas the family otherwise, had joint family agricultural income out of which the suit properties were purchased and there is no rebuttal evidence from the side of the defendants to prove that the properties sought to be partitioned were their self-acquired properties. Therefore, this Court is of the opinion that the defendants 1 and 3 have not established their independent income to purchase the suit properties and the plaintiff has discharged the burden that the suit properties are joint family properties. In view of the above discussions, the plaintiff is entitled to partition of his 1/3rdshare along with the defendants 1 and 2. As such, no interference is warranted in this regard and the finding of the Court below is confirmed. 15. Insofar as the second item of the suit properties, viz., jwelleries, belonging to the joint family at the hands defendants 1 to 3 is concerned, there is absolutely no evidence from the plaintiff. As such, no interference is warranted in this regard and the finding of the Court below is confirmed. 15. Insofar as the second item of the suit properties, viz., jwelleries, belonging to the joint family at the hands defendants 1 to 3 is concerned, there is absolutely no evidence from the plaintiff. The claim of cash deposit in the hands of the first defendant being the kartha of the family, viz., a sum of Rs.9,75,000/-, which is described as third item in the suit, has also not been established by the plaintiff to take 1/3rdshare. The trial Court rightly dismissed the claim with regard to the second and third items of the plaint schedule properties, and as such, the same warrants no interference. In light of the above discussion, the appeals fail and the same stand dismissed. Consequently, the judgment and decree dated 30.06.2006 passed by the Additional District Judge (Fast Tract Court No. I), Salem, in O.S. No. 69 of 2005 are affirmed for the reasons assigned by this Court in this appeal. Having regard to the relationship between the parties and in the nature of the case, the parties are directed to suffer their respective costs. Consequently, connected Miscellaneous Petition is closed.