BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/03/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI S.A(MD)No.1295 of 2004 and C.M.P.(MD)No.9566 of 2004 K.Arumugham ... Appellant/ Appellant/ Defendant Vs 1.M.Saraswathi ... 1st Respondent/ Respondent/ Plaintiff 2.S.Murugaih ... Respondents/ 2nd Respondent/ 2nd Defendant PRAYER The appeal is filed under Section 100 of C.P.C. against the judgment and decree dated 30.04.2003 in A.S.No.44 of 2001 on the file of the Additional Sub Court, Tenkasi, confirming the judgment and decree dated 01.06.2001 in O.S.No.80 of 1996 on the file of the Principal District Munsif Court, Tenkasi. !For Appellant ... Mr.R.Subramanian ^For Respondents ... Mr.A.Sankarasubramanian for R1 :JUDGMENT
The appeal preferred against the judgment and decree dated 30.04.2003 in
A.S.No.44 of 2001 on the file of the Additional Sub Judge, Tenkasi, confirming
the judgment and decree passed in A.S.No.80 of 1996 of on the file of the
Principal District Court, Tenaksi.
2.The first defendant is the appellant. The suit was filed for
declaration, recovery of possession and for mesne profits.
3.The facts for the case is as follows:-
The suit property originally belonged to one Kali and his brother Mookan.
Under an oral partition, the suit property was allotted to the said Kali, who is
the father of the plaintiff. By a registered settlement deed dated 22.03.1995,
the property was given to the plaintiff by her father and she is in possession
and enjoyment of the same. The first defendant trespassed into the property
04.11.1995 and claiming rights in the property therefore, the suit is filed for
the above relief.
4.The suit was resisted by the first defendant by filing the written
statement. According to the defendant, the suit property is the joint family
property of the defendant and his brother Kandasamy and their father Kali. In
an oral partition, the suit property was allotted to the first defendant and he
is in possession and enjoyment. The allotted settlement deed is a fraudulent
document and not acted upon.
5.Based on the above brief averments, the learned Principal District
Munsif, Tenkasi, framed triable issues and found that the property is the
absolute property of the said Kali and he had executed the settlement deed in
favour of the plaintiff and has decreed the suit. Aggrieved by which the first
defendant has preferred an appeal in A.S.No.44 of 2001 before the Sub Court
Tenakasi, and the learned Sub Judge also concurred to the findings of the Trial
Court and has dismissed the appeal Aggrieved by which the first appellant has
preferred the present appeal on various grounds.
6.On admission this Court framed the following substantial questions of
law:-
“a. Whether in law the courts below are right in failing to see that Ex.A.2 gift
was not proved by examining an independent attesting witness and that it was not
accepted and acted upon as mandated under Sec.122 of the Transfer of Property
Act?
b. Whether in law the courts below are right in overlooking that when
admittedly there was joint family ancestral necleus yielding income, the burden
shifted on the plaintiff to prove that the suit properties were purchased out of
separate income as laid down in 1998(3) MLJ 167 and that the plaintiff had
neither pleaded nor proved independent income?
c. Whether in law the courts below are right in ignoring the admissions of
the plaintiff as P.W.1 regarding the gift (that she never took possession and
that her father, the donor, continued in possession) thus inviting interference
under Section 100 C.P.C.?”
7.According to the appellant, the suit property is a joint family property
of Kali the Father, the defendant and one of his brother Kandasamy. According
to him, there was a oral partition between the male members of the joint family
and the suit property was allotted to him and he is in possession and enjoyment
of the property.
8.On the contrary, the case of the plaintiff is that the property belonged
to the said Kali who purchased the property under a registration sale deed dated
6.9.1958 and settled the property in favour of the plaintiff.
9.Mr.R.Subramanian, the learned counsel appearing for the appellant would
submit that the presence of the joint family ancestor nucleus yielding income
has been admitted by the plaintiff and the presumption has to be drawn that the
property was purchased by a member of the joint family is also a property
belonged to the joint family unless the contrary is proved. The learned
counsel pointed out that once the defendant is discharged from the burden of
proving existence of ancestral nucleus yielding income the burden shifts on the
plaintiff to prove that the property was purchased from the separate income of
the joint family members. The learned counsel also pointed out that the gift
deed was not proved by examining independent attesting witnesses and was not
acted upon. The learned counsel pointed out that the husband of the plaintiff
was examined as attesting witnesses and no independent witnesses was examined to
prove the gift deed.
10.On the contrary, Mr.A.Sankarasubramanian the learned counsel for the
Respondents would submit that both the courts below have concurrently found on
facts that the plaintiff is entitled for the property and has decreed the suit
and there is no substantial question of law raised in the second appeal and the
same is liable to be dismissed.
11.The admitted facts are as follows:
One Kali and Mookan were brothers. The suit properties of the three
items and some other properties were purchased by the said brothers under a sale
deed dated 06.09.1958 under Ex.A3. One of the brother Kali had executed a
settlement deed dated 22.03.1995 under Ex.A2 in favour of the plaintiff in
respect of the suit properties. The recital would show that the suit properties
were allotted to him in an oral partition. This settlement was executed at the
time of the plaintiff’s marriage with P.W.2. The said P.W.2 is an attesting
witness in this document. The first defendant and one Kandasamy are the sons of
the said Kali. Though the settlement was executed by the said Kali he continued
to be in possession. Meanwhile the plaintiff has filed the present suit on
14.02.1996 for recovery of possession of the suit property from the first
defendant. The second defendant is the grandson of the above said Mookaiyan who
is the brother of Kali.
12.The disputed fact is that the suit property and other properties of
Kali are the joint family properties in which, the said Kali and his two sons
are co-sharers. According to the first defendant there was a oral partition
between the father and sons and the suit property was allotted in favour of the
first defendant and he is in possession and enjoyment. The settlement was denied
as not genuine and was accepted and acted upon.
13.Both the courts below have found that the burden is upon the first
defendant to prove that the suit property is the joint family property and he
has failed. Both the courts below have also found that the plaintiff is
entitled for the suit property and decreed the suit as prayed for.
14.It is settled law that the burden of proof is on the person who claims
the existence of joint family and the availability of the joint family
properties. It is also settled law that once a joint family nucleus yielding
income is proved then the burden shifts upon the plaintiff to prove that the
properties were purchased out of separate income of the member of the joint
family. Therefore, the burden is upon the first defendant to prove that a joint
family and a joint family nucleus.
15.The first defendant would state that his father Kali and his brother
Mookan lived as joint family and they have purchased properties in their name.
He would also state that the suit properties were purchased from the income of
the joint family property. It is further stated that the said Kali and his
brother Mookan partitioned the properties among themselves and the suit property
and some other properties were allotted to the share of the said Kali. It is
the further case of the first defendant that in 1988 the father and the two sons
effected a partition between themselves and the suit property was allotted to
the first defendant. To prove that there was a joint family nucleus available
for the original joint family members namely Kali and Mookan except the oral
evidence of the first defendants there is no other evidence available.
16.Ex.A3 is a sale deed in favour of the said Kali and Mookan and the
property was purchased for a sum of Rs.3,000/- and the payments were also
recorded in the sale deed by stating that a sum of Rs.1,400/- received as loan
and balance sum of Rs.1,600/- was paid in the presence of the Sub Registrar.
Under Ex.A2, the properties purchased under Ex.A3 was given in settlement in
favour of the plaintiffs on 22.03.1995. The recitals would show that the
possession was also given to her.
17.It is elicited that the said Kali has having other properties of his
own which were enjoyed by the first defendant and his brother one Kandasamy.
There is no evidence to show that these properties are the ancestral properties
of the said Kali and his two sons. Therefore, it cannot be said that an
availability of ancestral nucleus is proved by the first defendant to draw a
presumption that the property purchased by the members of the joint family was
from the income from the nucleus. Therefore, the principle that once such
nucleus is proved the burden shifts on the plaintiff to prove that the property
was purchased from the separate income of the member of the joint family is not
applicable. As per the documentary evidences, the suit properties were
purchased by two brothers under Ex.A3 and one of the brother has settled the
property in favour of his daughter stating that he had acquired the property
under a partition. Therefore, the existence of the joint family and the
availability of the joint family properties and income from such properties as
source money for purchase of the suit property is not proved by the first
defendant who claimed the joint family status. What was admitted by the
plaintiff is that there are some other properties of the father which are being
enjoyed by the brothers and such admission will not go to show that those
properties are the ancestral properties to draw a presumption.
18.Ex.A2 is a registered settlement deed. P.W.1 and 2 had spoken about
the settlement deed. There is nothing to show that it was not accepted and
acted upon. Merely because one of the attesting witness happened to be the
husband of the settlee the settlement deed cannot be disregarded. Therefore,
both the courts below have found on fact that the settlement deed are proved
accepted and acted upon and the first defendant had not proved the existence of
the joint family and the availability of the joint family property. The
recitals in the settlement deed would show that the settler has given possession
to the plaintiff but in her evidence the plaintiff would state that her father
continued to be in possession and was cultivating the same. The settlement deed
was effected in March 1995 and the suit was filed in 1996 and the plaintiff
would state that her father was alive when the suit was filed. On the date of
filing of the suit, the property was under the possession of the first
defendant. That being so, the donor has not handed over possession is
untenable. The person who is in possession at the time of filing of the suit
has no right in the property and he has to hand over possession to the rightful
owner. The substantial questions of law are answered accordingly.
In the result, the second appeal fails and the same is dismissed. No
costs. Consequently, connected C.M.P.is closed.
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