In the High Court of Judicature at Madras Dated: 08.10.2010 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal No.1984 of 2004 and C.M.P.Nos.1201, 3138 and 7089 of 2005 Arumugham ..Appellant ..vs.. 1. Kuppammal 2. Kannan ..Respondents Second Appeal under section 100 of Civil Procedure Code, filed against the judgment and decree dated 30.06.2004 in A.S.No.126 of 2003 on the file of Principal Sub Judge, Villupuram, confirming the judgment and decree dated 03.10.2001 in O.S.No.287 of 1999 on the file of I Additional District Munsif Court, Thirukoilur. For Appellant : Mr.N.Suresh For Respondent : Mrs.Chitra Sampath for R1 No appearance for R2 JUDGMENT
The unsuccessful defendant in both the courts below is the appellant, who filed this Second Appeal aggrieved over the decree and judgment dated 30.06.2004 passed by the learned Principal Sub Judge, Villupuram, in A.S.No.126 of 2003, whereby the decree and judgment dated 03.10.2001 passed by the learned I Additional District Munsif, Thirukoilur, in O.S.No.287 of 1999 were affirmed.
2. The 1st respondent herein is the plaintiff, who filed O.S.No.287 of 1999 on the file of I Additional District Munsif Court, Thirukoilur, against the appellant as well as the 2nd respondent, for a partition and separate possession of her 3/6th share in the suit properties and also for mesne profits.
3. The above appeal on hand for consideration is a follow-up action of an earlier lis consigning the same property involved both in the earlier and the present suit. In order to have a clear understanding of the entire events, which gave rise to the law suits in both the cases, this Court would like to give a brief summary of the facts and the bone of contentions raised by the parties claiming their respective rights, which are as follows:
(a) There was one Srinivasa Konar, who was the ancestor, owning the entire properties mentioned in the suit schedule and whose legal heirs, in dispute, are as follows:
Srinivasa Konar (died in 1962)
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| | Chinnakannu Ammal (1st wife) Pattammal(2nd wife) (died pending the earlier suit) (died in 1998) | | | | Arumugam (son) Kuppammal(daughter) = Kannan Konar (Kuppammal's husband)
(b) Srianivasa Konar settled some items of the properties by a Settlement Deed dated 21.01.1944 in favour of his second wife Pattammal, out of love and affection. The properties settled do not form part of the family property; but they are the self-acquired properties of Srinivasa Konar. While his first wife Chinnakannu Ammal was alive, Srinivasa Konar married Pattammal as his second wife in the year 1944 i.e. before the Madras Hindu (Bigamy Prevention and Divorce) Act VI, 1949, coming into force on 09.03.1949.
(c) In order to have an enlighten of the legal position regarding the validity of the second marriage, it is pertinent to note that even before the said Act VI, 1949 came into force on 09.03.1949, the second marriage of Srinivasa Konar with Pattammal took place in the year 1944 and, hence, the second marriage was the legally valid marriage and its legality cannot be questioned and in fact, there is no such dispute about the validity of the second marriage. Subsequently, the Act VI of 1949, viz., Madras Hindu (Bigamy Prevention and Divorce), Act, had been repealed under the authority of section 30 of the Hindu Marriage Act (Act 25 of 1955) under the caption “Repealing and Amendment Act, 1960 (Act 58 of 1960)” in exercise of the power embodied under Section 2 and the First Schedule thereunder in the Act 25 of 1955 with effect from 16.12.1960 but, at the same time, retaining the legal intendment of the Act VI of 1949, as borne out under Section 17 of the Act 25 of 1955 reading “any marriage between two Hindus solemnized after the commencement of this Act is void, if at the time of such marriage either party had a husband or wife living and the provision of sections 494 and 495 I.P.C., shall apply accordingly. To say in other words, the combined effect of section 17 of the Hindu Marriage Act and the Act VI of 1949 validates the second marriage between two Hindus solemnized before 1949. In this connection, it is note-worthy to point out the saving provision of section 29 of the Act 25 of 1955 conveys the same effect of Act VI of 1949 reading “a marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid shall not be deemed to be invalid….”.
(d) At this juncture, it may be added that the repealing Act has been enacted by virtue of the power under section 30 of the Act 1955 under the caption “Repeals” (see the commentaries of Mulla’s Hindu Law at page 747 and also in the Meyne’s Hindu Law, 12th Edition at page 316 under item 17 of the list enumerated). Hence, the second marriage of Srinivasa Konar was a valid marriage. In short, Chinnakannu Ammal, the first wife and Pattammal, the second wife were the legally married wives of Srinivasa Konar. Indeed, there is no dispute about the relationship of the parties. It seems that all of them lived in a joint family with their children and Chinnakannu Ammal had given birth to a son by name Arumugam, i.e.the appellant in the present second appeal. After Srinivasa Konar died intestate in 1962 and after his demise, both the widows, viz., Chinnakannu Ammal and Pattammal and Arumugam, the son of Chinnakannu Ammal, were said to have entitled to 1/3rd share in the suit properties. In fact, a Village Panchayat was held, which also affirmed the alleged allotment of the properties as 1/3rd share for each of the parties.
(e) In the meantime, some misunderstanding arose between the parties, which resulted in the institution of a suit in O.S.No.120 of 1986 on the file of the District Munsif Court of Tirukoilur, which was filed by Arumugam, not only against Pattammal, her daughter Kuppammal and Kuppammal’s husband Kannan Konar but also his mother Chinnakannu Ammal arraying her as the 4th defendant in the suit, pleading that his father Srinivasa Konar had bequeathed all his properties under a Will dated 11.10.1961 in his favour. This suit was dismissed by the learned District Munsif, holding that the alleged Will of the year 1961 was not a valid one. However, notwithstanding the above finding, the learned District Munsif, considering the nature of the case, has declared that the plaintiff Arumugam is entitled to the suit properties. Being aggrieved by the said judgment, defendants 1 to 3 therein filed a first appeal in A.S.No.90 of 1992, which was partly allowed. Aggrieved by the judgment in A.S.No.90 of 1992, a second appeal was filed in S.A.No.615 of 1995 by the defendants in O.S.No.120 of 1986. This Court allowed the second appeal by its judgment dated 12.12.1997, wherein I would like to extract the finding portion of the second appeal as under:
“10. In view of the circumstances that the validity of the marriage of Srinivasa Konar with the first defendant cannot be said to be illegal and similarly the second defendant cannot be said to be the illegitimate child. The first and second defendants will have to be treated as legal heirs of the deceased Srinivasa Konar. The third defendant as the son is also entitled to a share. Similarly the fourth defendant who has died pending suit, is also entitled to a share as per law on the date of death of Srinivasa Konar. Since the suit has been filed only for declaration and possession and has been prosecuted only on that basis. I do not think that I can convert it to a suit for partition and allot the share due to the parties. However I give liberty to the parties in this suit to file a separate suit for partition and claim their shares. With this observation the second appeal is allowed. The judgment and decrees of the Courts below are set aside. However there will be no order as to costs. Consequently C.M.P.Nos.7111 and 8285 of 1995 are dismissed as unnecessary.
(f) It was in the situation of the prolonged litigation and the direction given by the High Court in S.A.No.615 of 1995 giving option to Pattammal and others to file a separate civil suit. In the meantime, Pattammal died intestate in the year 1998. Thereafter, Kuppammal, the daughter born to the second wife of Srinivasa Konar, as plaintiff, has filed the suit in O.S.No.287 of 1999, impleading Arumugam, son of Srinivasa Konar through Chinnakannu Ammal and Kannan, her husband, arrayed them as defendants 1 and 2, stating that she would be entitled to 3/6th share and the 1st defendant Arumugam would be entitled to 3/6th share and sought for the relief as prayed for. It is the further case of Kuppammal that her mother Pattammal had executed a settlement deed in favour of Kannan, in respect of the property belonging to her.
(g) Both the defendants filed their written statements separately. According to the 1st defendant Arumugam, he is entitled to have a half share of the properties and after the death of his father, he, as his legal, heir is entitled to be the exclusive owner of the entire property and even assuming that Kuppammal has a share in the property of his father, the plaintiff would be entitled at the maximum share of 3/12 and this defendant alone would be entitled to the remaining 9/12th share.
(h) The second defendant, the husband of Kuppammal (Kannan) filed a separate written statement supporting the case of the plaintiff. According to him, the plaintiff and the 1st defendant each would be entitled to 3/6th share in the entire property and Arumugam would be entitled to another 3/6th share. He further stated that notwithstanding the settlement deed executed in his favour by his mother-in-law Pattammal, he is not claiming any share in the properties on the date of the settlement.
4. On the said pleadings of the parties, the trial court framed four issues and on the side of the plaintiff, she examined herself as P.W.1 and marked Exs.A-1 to A-33 and on the side of the defendants, the 1st defendant examined himself as P.W.1 and marked Exs.B-1 to B-6 and the report and the plan submitted by the Advocate Commissioner were marked as Exs.C-1 and C-2. The trial court, considering the evidence, both oral and documentary, had decreed the suit on a finding that the plaintiff was entitled to a half share in the suit properties with a direction to the plaintiff to file separate proceedings under Order 20 Rule 12 C.P.C.with regard to the mesne profits. Aggrieved over the same, the 1st defendant filed A.S.No.126 of 2003 before the Principal Sub Court, Villupuram. Pending appeal, the 1st defendant also took out two applications in I.A.Nos.107 and 109 of 2004 under Order 41 Rule 27 to receive certain documents as additional evidence in order to prove the defence of the 1st defendant that the suit properties were purchased by Srinivasa Konar from the income derived from the joint family properties and hence, the suit properties cannot be treated as the self-acquired properties of Srinivasa Konar. But, the appellate court dismissed the said applications as well as the appeal by separate orders. Against the said judgment, the 1st defendant has filed the present second appeal.
5. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration:
1) Whether the action of the court below in dismissing the appeal can be sustained in law as on the one hand the appeal is dismissed on the aground of absence of documentary evidence and on the other hand, the application to receive additional documents which would prove the case, is also dismissed ?
2) Whether the order of the court below in I.A.107 & 109/2004 can be sustained in law in the face of the object and purpose of Order 41 Rule 27 C.P.C. ?
3) Whether the order of the court below in I.A.107 & 109/2004 can be sustained in law as the same is contrary to the judgment of this Hon’ble Court in 2001-1 L.W.1967 ?
4) Whether the court below was justified in law in going into the sufficiency and relevancy of the documents in detail at the time of hearing the applications itself, when the same could be established at the time of examination and evidence ?
5) Whether the judgment of the court below can be sustained in law when the same has been rendered by misreading the judgment of this Court in the earlier proceedings ?
6) Whether the court below was right in law in dismissing the appeal by relying on an alleged admission of the appellant herein in the earlier proceedings, which is factually incorrect and when in the very same proceeding the very same court found the property as that of joint family ?
7) Whether the courts below were justified in placing the burden of proof on the defendant, when admittedly documents were available to show that the appellant’s father got proportion through partition, which in turn indicates the nature of the family property ?
6. Learned counsel for the appellant/1st defendant submitted that the suit properties are the joint family properties and the appellant and his father had a half share each in the suit properties and after the demise of his father, the appellant is entitled to 1/3rd share in the half share of Srinivasa Konar and if at all the 1st respondent/ plaintiff had any right, at the maximum, she can get only half share in her father’s half share. Hence, the appellant is entitled to 3/4th share and the 1st respondent is entitled to 1/4th share. Right from the earlier suit, the defence of the appellant had been that the suit properties are the joint family properties. But the trial court has come to an erroneous conclusion, by relying upon various sale deeds marked as Exs.A-11 to A-33, that the said documents would show that the suit properties were purchased by Srinivasa Konar in his name and as such, they were the self acquired properties of Srinivasa Konar and therefore, the appellant as well as the 1st respondent being the legal heirs of Srinivasa Konar were entitled to half share each in the same. In this regard, the learned counsel for the appellant relied on the following averments in the written statement, which reads as follows:
VERNACULAR (TAMIL) PORTION DELETED
and submitted that the said averments would show that Srinivasa Konar had purchased the properties from the income derived from the joint family properties. That apart, in Exs.B-1 to B-5 i.e.the settlement deeds and the sale deeds executed by Srinivasa Konar in favour of his two wives and third parties, it had been clearly stated that Srinivasa Konar had conveyed the property, which he inherited as his share. The recitals
VERNACULAR (TAMIL) PORTION DELETED
would show that there was an ancestral property and Srinivasa Konar might have derived income from and out of which and he ought to have purchased the suit properties. But the trial court came to an erroneous conclusion that in the absence of any documents to show that there was an ancestral property to Srinivasa Konar, the recitals found in Exs.B-1 to B-5 had to be construed that Srinivasa Konar and his brother might have possessed joint family properties and that there should have been some partition between themselves.
7. Attacking the said finding, the learned counsel submitted that when it had been specifically stated in the recitals Exs.B-1 to B-5 that he conveyed the property which he inherited as his share, would normallay refer to the ancestral properties. Hence, the finding arrived at by the trial court is perverse. However, before the appellate court, the appellant had taken out two applications in I.A.Nos.107 and 109 of 2004 to mark some documents,namely, mortgage deeds and sale deeds of the years 1913, 1914, 1925 etc., and to examine one Venkatachala Konar, a nonagenarian and the Tahsildar of Thirukoilur, to prove that Srinivasa Konar had ancestral properties; but the appellate court had dismissed both the applications as well as the appeal by separate order on 30.06.2004 observing that the appellant had not have filed any document to prove that his father had ancestral properties. Attacking the said finding of the lower appellate court, the learned counsel submitted that had the said applications been allowed, the appellant might have had an opportunity to prove that his father had purchased the properties from the income derived from the ancestral properties. Moreover, as per the dictum laid down by the Hon’ble Apex Court in various judgments, the applications filed under Order 41 Rule 27 had to be heard and disposed of along with the main appeal. But, in the instant case, it had not been done so. Therefore, it could be construed that the appellate court had passed the judgment without taking into consideration the relevant materials and on this ground also, the decree and judgment of the appellate court have to be set aside and the matter has to be remitted to the appellate court to consider the applications filed by the appellant to receive the documents as additional evidence. That apart, the learned counsel has also submitted that there are several infirmities found in the judgment, which would show the non-application of mind of the lower appellate court and hence, the findings are perverse. In support of his contention, the learned counsel has relied on the judgments reported in the case of AYYASWAMI ..vs.. S.P.GANESAN (1994-2-L.W.376), RAMLAL ..vs.. PHAGUA (CDJ 2005 SC 800), EASTERN EQUIPMENT & SALES LTD., ..vs.. ING.YASH KUMAR KHANNA (2008) 12 SCC 739), KASHMIR SINGH ..vs.. HARNAM SINGH (2008) 12 SCC 796) and HAKAM SINGH ..vs.. STATE OF HARYANA (2008) 12 SCC 762).
8. Per contra, the learned counsel for the 1st respondent/ plaintiff submitted that the documents Exs.A-11 to A-33 marked on her side would show that the suit properties were the self acquired properties of Srinivasa Konar. This court in the earlier proceedings in S.A.No.615 of 1995 had come to the conclusion that the appellant and the 1st respondent are the legitimate children of Srinivasa Konar and under such circumstances, each of them is entitled to a share in the suit properties. When the appellant claims that the suit properties are his ancestral properties, he ought to have pleaded in the written statement that there was an ancestral property and the ancestral property had fetched income and from and out of which, the suit properties had been purchased. But, absolutely, there was no specific pleading made to that effect. Therefore, the appellant cannot now say that the suit properties were purchased from the income derived from the ancestral properties. By inviting the attention of this Court to the cross-examination of D.W.1, the learned counsel submitted that the appellant had admitted that he had no document to show that after the demise of his grandfather Muthu Narayana Konar, there was a partition between his father and his paternal uncle Ramasamy Konar. By relying upon that piece of evidence made by D.W.1 in his cross examination, the learned counsel contended that absolutely, there was no ancestral nucleus, which yielded income and from and out of which, the father of the plaintiff had purchased the properties. Hence, in the absence of any pleading or any documentary proof to show that the suit properties were purchased from the income derived from the ancestral properties of Srinivasa Konar, the finding arrived at by the courts below cannot be found fault with. Though there were certain alleged infirmities, the reasoning given by the lower appellate court cannot be said to be perverse because there is a prima facie duty on the part of the appellant to prove his case that the suit properties were the joint family properties; but he miserably failed to establish the same.
9. With regard to the orders passed in I.A.Nos.107 and 109 of 2004, the learned counsel for the 1st respondent submitted that first of all, the appellant had not given any valid reason for non-production of the documents sought to be marked before the trial court. Since no valid reason was given, the lower appellate court had correctly dismissed those applications. Moreover, the documents sought to be marked by the appellant will not be helpful to prove the case that the suit properties were purchased from the income derived from the joint family properties. The arguments in the main appeal as well as the applications were heard at the same time and the orders were passed on the same day i.e.30.06.2004. Therefore, it cannot be said that the orders were not pronounced along with the main appeal. Under such circumstances, no necessity of remand arises. In support of his submissions, the learned counsel has also relied on the decisions reported in the case of DEVARAJ ..vs.. RADHAKRISHNAN (2002 (I) CTC 44), RAJGOPAL ..vs.. KISHAN GOPAL (2003) 10 SCC 653), NARASIMHAN, THE DEPUTY REGISTRAR OF CO-OP.SOCIETIES (2003(I) CTC 327), CHENNI ..vs.. CHELLAMMAL (2004) 4 M.L.J.172) and DEIVANAI AMMAL (DIED) AND ANOTHER ..vs.. MEENAKSHI AMMAL (2004(4) CTC 208).
10. By way of reply, the learned counsel for the appellant would submit that it is not correct to state that the arguments in the appeal and the applications were heard on the same day, but on different dates. Under such circumstances, it is evident that the applications were not disposed of along with the appeal. The method adopted by the lower appellate court in disposing of the applications is against the principles laid down by the Hon’ble Supreme court in various judgments.
11. Heard the learned counsel for the parties and perused the materials available on record.
12. It is not in controversy that the appellant and the 1st respondent are the children of one Srinivasa Konar born through the 1st and 2nd wives respectively. In the earlier round of litigation initiated by the appellant, the dispute with regard to the validity of the second marriage of Srinivasa Konar and the legitimacy of the 1st respondent had been decided by this Court stating that the second marriage was a valid one because the marriage was prior to 1949 and the 1st respondent was the legitimate legal heir of Srinivasa Konar and it had reached its finality since there was no challenge against the same. Therefore, there is no need to deal with those aspects in this appeal.
13. The subject suit was filed by the 1st respondent pursuant to the liberty given in the earlier second appeal, as follows:
“10. …I do not think that I can convert it to a suit for partition and allot the share due to the parties. However, I give liberty to the parties in this suit to file a separate suit for partition and claim their shares..”
Hence, the 1st respondent had filed the present suit claiming a half share in the suit properties stating that the suit properties were the self-acquired properties of Srinivasa Konar. Per contra, it is the case of the appellant that the suit properties were the joint family properties and the appellant and his father had equal shares in the suit properties and after the demise of his father Srinivasa Konar in the year 1962, he was entitled to a half share in the suit properties and the 1st respondent was entitled to 1/3rd share in her father’s half share. In that way, the 1st respondent was entitled to only 1/4th share and he is entitled to 3/4th share. Since the case put forth by the appellant was that the suit properties were the joint family properties, now it is for the appellant to establish that the suit properties were the joint family properties. But, a perusal of the documents Exs.A-11 to A-33 shows that all the properties were purchased independently by Srinivasa Konar in his name and as such, prima facie there is no difficulty to come to the conclusion that the suit
properties should be the self acquired properties of Srinivasa Konar.
14. Now it is the submission of the learned counsel for the appellant that the suit properties were purchased from the income derived from the ancestral properties and, therefore, the suit properties were only the joint family properties of Srinivasa Konar and the appellant. In view of the submission made by the learned counsel for the appellant, now it has to be seen as to whether the appellant has proved before the courts below that he had ancestral properties, which yielded income and from and out of which, Srinivasa Konar had purchased the suit properties.
15. On going through the documents, I find that absolutely, no direct evidence was available to prove that Srinivasa Konar had the ancestral properties. Though the learned counsel for the appellant, by reading the recitals in Exs.B-3 to B-5 submitted that the same would show that Srinivasa Konar might have had ancestral properties, in my considered opinion, in the absence of any direct and tangible proof, by reading the recitals in a piecemeal manner, it is not possible to come to a conclusion that Srinivasa Konar had ancestral properties. Moreover, as contended by the learned counsel for the 1st respondent, in the written statement, no specific pleading was taken that there was an ancestral nucleus, which yielded sufficient income, from which, his father Srinivasa Konar had purchased the suit properties. Though the learned counsel for the appellant submitted that there was a pleading to that effect, on a perusal of the same, I find that only a general statement was made and there was no specific pleading to that effect. In this regard, a reference could be placed on the decision relied on by the learned counsel for the respondent reported in 2004(4) CTC 208 (supra), wherein it has been observed as follows:
“20. As far as the claim of joint nucleus left by the father or grandfather of Ganapathy Moopanar is concerned, there is no iota of evidence, except the oral evidence of D.W.1. It is further seen that Ganapathy Moopanar purchased other two properties for Rs.600 and Rs.1,000 respectively under Ex.A-2 dated 17.1.1954 and Ex.A-3 dated 5.12.1954. All the said properties were purchased by Ganapathy Moopanar in his name out of his earnings. As said earlier, though D.W.1 has stated that all the properties under Exs.A-1 to A-3 were purchased in the name of Ganapathy Moopanar from and out of the family nucleus and from the earnings of all the three, admittedly, at that time D.W.1 was aged about 10 years and studying in fourth Standard. It is evident that when he deposed as D.W.1 on 12.02.1987 before the Sub Court, it is noted that he was aged about 45 years. The properties under Exs.A-2 and A-3 were purchased in 1954. If that is so, at that time D.W.1 would not have crossed 12 years and his brother would be below 10 years. In such a circumstance, it cannot be accepted that D.W.1 and his brother contributed for the purchase of properties under Exs.A-2 and A-3. The other two witnesses, namely, D.Ws.2 and 3 have not spoken to about the properties purchased under Exs.A-1 to A-3 and they were examined only to speak about “athakshi”.
21. The defendants have also pressed into service Exs.B-13 to B-24 Cards issued for supply of yarn to the family of Ganapathy Moopanar. We have verified those documents. First of all, no one has explained the contents of those documents. Secondly, merely because the name of Ganapathy Moopanar finds a place in those Cards, we are of the view that those documents do not improve the case of the defendants to show that there was a joint family nucleus at the time of purchase of Exs.A-1, A-2 and A-3 properties that were purchased from and out of the joint earnings of Ganapathy Moopanar and defendants 2 and 3. On the other hand, in the light of the principles referred to above, in the absence of acceptable evidence regarding joint family nucleus, considering the age of defendants 2 and 3 at the relevant time, namely, purchase of properties under Exs.A-1, A-2 and A-3, we hold that no joint family nucleus was available and the properties purchased under Exs.A-1 to A-3 were self acquired properties of Ganapathy Moopanar”.
16. In (2003) 10 SCC 653 (supra), it has been held that in the absence of any specific pleadings in the plaint, no lis exists thereon and the Courts are precluded from taking cognizance on mere evidence. It is, therefore, clear from the aforesaid decision that there should be a specific pleading in the written statement and in the absence of the same, based on mere evidence, the Courts are precluded from taking cognizance of the case put forth by the appellant/1st defendant. Further, I find that in the present case, apart from the absence of any specific pleading, no tangible evidence was also available to come to a conclusion that the suit properties were purchased from the ancestral nucleus, which yielded income.
17. Learned counsel for the appellant has relied on some judgments and submitted that the lower appellate court has not considered the oral and documentary evidence properly and if the lower appellate court did not consider the legal effect of the documents, an interference could be made in the second appeal. But I am of the opinion that prima facie there is a duty cast upon the appellant to establish his case that the suit properties were the joint family properties; more so, in the present case, umpteen documents were filed by the 1st respondent to substantiate her case that the suit properties were the self-acquired properties of Srinivasa Konar. Under such circumstances, the dictum laid down in the judgments cannot be made applicable to the facts of the case on hand. In this regard, a reference could be placed on the judgment reported in 2003(1) CTC 327 (supra), where it has been held as follows:
“10. … Now, respondents 1 and 2 had taken a plea that the appellant purchased the property in his capacity as Head of the family and both of them are living under one and the same roof. It is only when there are ancestral nucleus, then it can be presumed that the appellant could have purchased the property out of the said funds and hence, the entire property can be construed as a joint family property. If there are no ancestral nucleus and if the property was purchased out of the exclusive funds of the appellant, then it becomes the separate and self acquired property and under the circumstance, the department is not entitled to attach the property of the appellant for the debts payable by the 3rd defendant. The question relating to joint family or ancestral nucleus and all these details cannot be gone into by the authorities constituted under the Act. Necessarily the question of title relating to the property can be gone into only by a Civil Court. Further, a reading of Rule 137 would itself indicate that only the property of the judgment debtor is liable for attachment and not the property of a third party”.
18. In (2004) 4 M.L.J.172 (supra), it has been observed as follows:
“6.5. The family of Veeran had not owned and ancestral property, admittedly. The father of Veeran, by name Siddhan, admittedly, had not left any property to be inherited by his son Veeran or by his grandsons, viz., the sons of Veeran. As aforementioned, all the properties are standing, as per the title deeds, only in the name of Veeran. Therefore, the general presumption is, that the person in whose name the documents stand is the owner of the property. If any contra view is to be taken, it is for the person who asserts so, to plead and prove the same. It is the trite law that there may be presumption that there is a Hindu joint family. But there can be no presumption, that the joint family possesses joint family properties, as ruled by the Apex Court in K.Obul Reddy v. B.Venkata Narayana Reddy, A.I.R.1984 SC 1171, wherein it is held:
“There may be presumption that there is a Hindu Joint Family but there can be no presumption that the joint family possess joint family properties”.
The Hindu Law permits, members of a joint family, even co-parceners, to acquire separate property, without disturbing the status of the joint family, by running independent business even living within the joint family without partition. The only criterion is that for the acquisition of the property, no amount should have been emanated from the income of the joint family property, if any. Thus, it is evident, a property acquired by the members of a joint family independently, without reference to joint family income, would not come within the meaning of the joint family property, unless, it is stated that the property so acquired was thrown into the common stock or enjoyed by the family, thereby extinguishing the individual right said to have been acquired”.
19. A reading of the above judgments would show that there is a burden cast on the part of the appellant to prove that there was a joint family nucleus at the time of purchase of the suit properties and that the properties were purchased from the earnings emanated from the joint family nucleus. Though the learned counsel for the appellant submitted that if the documents, to be marked, namely, mortgage deed, sale deed, etc. should be taken into consideration, in my considered opinion, that even if the documents are received as additional evidence, at the maximum, they will be helpful to come to the conclusion that the father Srinivasa Konar had some properties and not beyond that; whereas the appellant has to prove that the ancestral properties yielded income and from the said income only, the suit properties were purchased. Therefore, in my considered opinion, even if the additional documents are received, it will not improve the case of the appellant in any way.
20. Coming to the submission of the learned counsel for the appellant, by relying upon the decision reported in (2008) 12 SCC 739 (supra), that the appellate court ought to have taken up the appeal along with the applications filed under Order 41 Rule 27 C.P.C., for additional evidence and that the applications and the appeal were heard on different dates and the orders were also passed separately, which is evident that the applications were not disposed of along with the appeal and that as per the dictum laid down by the Hon’ble Apex Court in various judgments, the judgment of the appellate court has to be set aside and the matter has to be remitted to the appellate court for fresh consideration, I am not in agreement with the said submission. On going through the notes paper, I find that for hearing the arguments in the main appeal, the matter was posted to 02.01.2004 and the same was adjourned on several dates and finally the arguments were heard on 28.06.2004 and the judgment was pronounced on 30.06.2004. When the appeal was heard, the arguments in the applications also were heard simultaneously and the orders were passed in the applications on the same day by two separate orders. Therefore, I am of the view that the lower appellate court had decided the appeal along with the applications and instead of passing one order, the lower appellate court has passed two separate orders on the same day. Under such circumstances, I do not find any infirmity in disposing of the appeal and the application by way of two separate orders. Had the applications been decided first and the appeal later on the different dates, then this Court could understand that there is some substance in the submission made by the learned counsel for the appellant. But, in the instant case, the applications were posted for hearing when the appeal was listed and the applications were disposed of only along with the appeal by way of two separate orders.
21. A conspectus of all circumstances in this case, has paved way to conclude that the 1st respondent/plaintiff had proved and established her claim for partition and separate possession in respect of the suit properties. Both the courts below have thoroughly analysed the facts and arrived at the correct finding, which is based on legal evidence and under such circumstances, this Court is of the view that there is no valid ground to interfere with the judgment and decree passed by the courts below, more so when no question of law much less a substantial one was involved.
For the reasons stated above, the second appeal fails and is dismissed and the decree and judgment passed by the courts below are confirmed. No costs. Consequently, connected C.M.Ps.are closed.
gl
To
1) The Principal Subordinate Judge,
Villupuram.
2) The Additional District Munsif,
Thirukoilur.
Copy to:
The Section Officer,
V.R.Section,
High Court,
Madras