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2024 DIGILAW 1099 (MAD)

Nallara Gounder (died) v. Jayagandhi Ammal

2024-04-18

C.KUMARAPPAN

body2024
JUDGMENT : C. KUMARAPPAN, J. 1. The defendants are the appellants. The suit property originally belonged to one Kuppusamy Gounder. He got three sons by name Sadhasiva Gounder, Mottaiya Gounder and Nallara Gounder. The suit has been filed by one Mottaiya Gounder against his brother Nallara Gounder in O.S.No.379 of 1982. Similarly the defendants in O.S.No.379 of 1982 have also filed another suit in O.S.No.199 of 1982 against Mottaiya Gounder namely, the plaintiff in O.S.No.379 of 1982. Since both the suits were in respect of the same property and between the same parties, both the suits were tried together and the suit filed by Mottaiya Gounder was dismissed. However, the suit filed by Nallara Gounder was allowed by common judgement dated 30.06.1987. Against which, two separate appeals have been filed in A.S.Nos.3 of 2007 and 32 of 2006, wherein, the common judgment has been passed on 15.03.2008 by allowing the appeal. The present appeals have been filed against the said common judgment. Therefore, both the appeals are taken up together for disposal. 2. For the sake of convenience, the parties will be referred according to their litigative status in O.S.No.379 of 1982. 3. The brief facts, which give rise to the instant second appeals are as follows: The plaintiff and the first defendant are brothers. The second defendant is wife of the first defendant and the defendants 3 and 4 are the subsequent purchasers who purchased the property from the first defendant. According to the plaintiff, the suit property was the joint family property and that, during 1959 there was a partition in the family. Since the plaintiff was minor then while dividing the family property, after allotting separate share to Sadhasiva Gounder, the plaintiff and the first defendant were jointly allotted share. The same has been maintained by the first defendant on his behalf and on behalf of plaintiff and the said property has been referred as 'A' schedule property. 4. It is also the submission of the plaintiff that, out of the income derived from the joint family property, the first defendant has purchased the 'B' schedule property. Therefore, 'B' schedule property also has to be construed as a joint family property. Since 1981, there was no cordiality between the plaintiff's wife and the first defendant's wife, therefore, the plaintiff has come forward with the suit for partition and separate possession. 5. Therefore, 'B' schedule property also has to be construed as a joint family property. Since 1981, there was no cordiality between the plaintiff's wife and the first defendant's wife, therefore, the plaintiff has come forward with the suit for partition and separate possession. 5. It is also the contention of the plaintiff that, the first defendant has executed the settlement deed in favour of his wife/second defendant, and also sold certain property to the defendants 3 and 4. According to the plaintiff, since the properties are the joint family property, such subsequent transfer made by the first defendant will not affect the plaintiff's right to have a share in the suit property. Hence, he prayed to decree the suit. 6. The said suit was resisted by the first defendant contending that there was no partition during 1959 and a partition had happened only during 1962. The suit 'A' schedule property was allotted as his separate share from the joint family property, and 'B' schedule property was purchased by him from the borrowals from his father-in-law and also from outside sources such the property referred to in 'B' schedule property is also his absolute property. Therefore, it is the submission of the defendants that, he has got every right to alienate the property. The defendants further submitted that they also borrowed a sum of Rs.35,000/- from various parties so as to purchase the 'B' schedule property. Therefore, it is the defendants submission that the plaintiff cannot have any right over the suit property. Similarly, the plaint pleading in O.S.No.99 of 1982 is nothing but the pleading of the written statement in O.S.No.379 of 1982. Likewise, the written statement pleading in O.S.No.379 of 1982 is nothing but pleading containing in the plaint in O.S.No.379 of 1982. 7. Evidence and findings before the Trial Court: Before, the trial Court, the plaintiff examined four witnesses as PWs.1 to 4 and marked as many as eight documents as Exs.A1 to A8. On behalf of the defendants, two witnesses were examined and as many as thirty eight documents have been marked as Exs.B1 to B38. 7. Evidence and findings before the Trial Court: Before, the trial Court, the plaintiff examined four witnesses as PWs.1 to 4 and marked as many as eight documents as Exs.A1 to A8. On behalf of the defendants, two witnesses were examined and as many as thirty eight documents have been marked as Exs.B1 to B38. The trial Court after having considered oral and documentary evidence arrived at a conclusion that the suit 'A' and 'B' schedule property is the absolute property of Nallara Gounder and therefore held that the plaintiff in O.S.No.379 of 1982 qua Mottaiya Gounder has no right to seek partition to the suit property and ultimately dismissed the suit in O.S.No.379 of 1982. However decreed the suit in O.S.No.199 of 1982 by holding that the Nallara Gounder is the absolute owner of the suit 'A' and 'B' schedule property. 8. Aggrieved by the said finding, the plaintiff has filed the First Appeal. The First Appellate Court on re-appreciation of evidence has reversed the finding and found that the suit property is the joint family property. Further, the First Appellate Court found that Nallara Gounder has no right to execute the settlement deed to his wife and sale deed in favour of defendants 3 and 4, and ultimately held that the plaintiff / Mottaiya Gounder is entitled to have the share in the suit property, thereby, reversed the findings of the trial Court. 9. Not satisfying with the order of the First Appellate Court, the 1 st defendant (Nallara Gounder) and others in O.S.No.379 of 1982 have preferred this Second Appeal No.986 of 2008. Similarly, the plaintiff (Nallara Gounder) in O.S.No.199 of 1982 preferred Second Appeal No.987 of 2008. 10. At the time of admission, this Court formulated the following common substantial question of law in both the second appeals by order dated17.10.2008: “Whether the Lower Appellate Court is right in holding that even after the partition in the family when admitted one brother got separated, the joint family continued among the other members namely plaintiff and 1 st defendant, overlooking that there is no proof of an agreement between plaintiff and 1 st defendant to remain united or to reunite as Joint Family Members? 11. The learned counsel appearing for the appellant would vehemently contend that even according to the plaint averment there was a partition during 1959. 11. The learned counsel appearing for the appellant would vehemently contend that even according to the plaint averment there was a partition during 1959. Therefore, when the plaintiff himself admits that there was a partition, burden is upon the plaintiff to establish that such partition was partial partition and still he can have right over the suit property. It is also contention of the learned counsel for the appellant that even if there were any joint family properties, the mere existence of joint family property is not sufficient to hold that the property purchased by the member of the joint family in his personal name to be construed the joint family property and what is essential is to prove the availability of the surplus fund to purchase such property. Whereas the plaintiff did not establish any existence of the surplus fund. Therefore, it is the contention of the learned counsel for the appellants that the findings recorded by the First Appellate Court are without any evidence and contrary to law. Hence, would submit that the same is perverse and liable to be interfered by this Court. 12. Despite the respondent counsel name printed, the counsel did not appear before this Court on 16.04.2024 and again this matter is posted today. Even today, there is no representation on behalf of the respondents. Therefore, without any other option, this Court proceeded with the matter based upon the submissions made by the learned counsel for the appellants and based upon the material available before this Court. 13. The sum and substance of the submission made by the learned counsel for the appellants is that, even for arguments, sake if the plaintiffs contention that there was oral partition during 1959 is accepted, when the plaintiff has come up with the specific case of oral partition, the joint allotment of 'A' schedule property between the plaintiff and defendants has to be established by producing relevant records. 14. The trial Court has relied upon the judgment of this Court in Kumara Chetti and others Vs. Muthuvijaya Raghunatha Muthukumara Vanagamudi Valuvatti Thevar (dead ) and others reported in AIR 1932 Madras 207 (ii) Nadiammal Achi and another Vs. Mariyappa Thevar reported in AIR 38 1951 Madras 625 . These judgments which have also been referred by the First Appellate Court. Muthuvijaya Raghunatha Muthukumara Vanagamudi Valuvatti Thevar (dead ) and others reported in AIR 1932 Madras 207 (ii) Nadiammal Achi and another Vs. Mariyappa Thevar reported in AIR 38 1951 Madras 625 . These judgments which have also been referred by the First Appellate Court. As per the above judgment whenever a party admits about the existence of the partition, there is a presumption that such partition is complete in nature. Here, in this case, though the plaintiff contends that there was a oral partition during 1959, he still says that as against him, there was no partition, and the property was jointly allotted between the first defendant and plaintiff. 15. Therefore, as rightly found in First Appellate Court, there is a duty cast upon the plaintiff to establish such joint allotment. It is pertinent to mention here that the trial Court did not believe the 1959 partition. However, based upon the evidence, has held that there was a partition only during 1962. But the First Appellate Court has found that even during 1959 there was partition between the Sadhasiva Gounder on the one hand, and plaintiff and the first defendant on the other hand. 16. In order to substantiate such findings, the First Appellate Court has relied on the evidence of PW.1. Wherein, PW.1 has admitted as follows: 17. It was the finding of the First Appellate Court that the reference of would suffice to hold that there was a joint allotment. But this Court is not in a position to agree with the findings recorded by the First Appellate Court. The reference of can also be used in a connotation that the property belongs to the plaintiff and defendants is on the southern side. There is every possibility that even if the property has been divided between plaintiff and defendants, the same could be referred only with such connotation. Therefore, the mere usage of in Ex.A1 cannot be a conclusive proof to show that there was a joint allotment between the plaintiff and the first defendant. 18. The First Appellate Court has also relied upon yet another reference in Ex.B12: 19. Here again, the First Appellate Court relied on the reference of that undivided 2/3 rd share has been construed as there exists a joint family between the plaintiff and the first defendant. 18. The First Appellate Court has also relied upon yet another reference in Ex.B12: 19. Here again, the First Appellate Court relied on the reference of that undivided 2/3 rd share has been construed as there exists a joint family between the plaintiff and the first defendant. But on harmonious and close reading of the above reference, there is a specific mentioning that 2/3 rd undivided share has been mentioned as the property of the first defendant. Therefore, on mere reading of these two references, the findings recorded by the First Appellate Court cannot be countenanced. 20. Apart from these two references, there are no materials available before this Court by way of revenue records or the conduct of the party to show the existence of the joint family. Therefore, this Court is of the firm view that the case put forth by the plaintiff that there was a joint partition between the plaintiff and first defendant cannot be accepted at all. Therefore, once the joint allotment is not accepted then naturally the purchase made by the first defendant in his individual name has to be construed as his absolute property. In this regard, it is relevant to record that, even for arguments if there exists a joint family, the mere existence of joint family is not sufficient to hold that the purchase made by the member of the joint family is the joint family property. In this regard, it is relevant to refer the judgment in 2003 10 SCC 310 reported in D.S.Lakshmaiah and another Vs L.Balasubramanyam which has been referred and followed in (2020) 6 SCC 387 reported in Bhagwath Sharan (dead through legal representatives) Vs Purushottam and others. 21. As per the ratio of the above judgment, the proof of the existence of joint family does not lead to a presumption that the property held by any member of the family is joint family property. As per the above ratio, it is the duty of the person, who claims that the property is the joint family property, to establish that there exists the surplus joint family income to purchase the property. In this regard, the First Appellate Court relied upon the evidence of PW.2, wherein, PW.2 stated that, in the land there would have been a yield of Rs.10,000/-. In this regard, the First Appellate Court relied upon the evidence of PW.2, wherein, PW.2 stated that, in the land there would have been a yield of Rs.10,000/-. But what is essential is not mere yielding of the land, but there should be a proof about the existence of the surplus income. Therefore, even according to the evidence of PW.2, this Court could not find existence of any surplus income, so as to form joint family nucleus to purchase the 'B' schedule property. 22. It is also pertinent to mention that the First Appellate Court has relied upon the Ex.A8 so as to hold that even during 1962, there was a joint purchase by the plaintiff and the first defendant from his brother viz., Sadhasiva Gounder. According to First Appellate Court this would support the case of the plaintiff that there exists a joint allotment. But, this Court respectfully disagrees with the findings recorded by the First Appellate Court on the ground that, if there was a joint purchase during 1962, then the plaintiff would not have permitted the first defendant to purchase the property in his individual name. Therefore, the purchase in the name of the defendants would only indicate and manifest the existence of division of the property between the plaintiff and the defendants. 23. Therefore, this Court is of the firm view that the findings recorded by the First Appellate Court are not based upon the evidence. Therefore, the same is found to be perverse and liable to be interfered with. Thus in view of the above detailed discussion the substantial question of law is answered in favour of the appellants and both the appeals are allowed. 24. In nutshell: a) The Second Appeals are allowed; b) In the facts and circumstances of the case, there shall be no order as to costs;