ORDER
Maruthamuthu, J.
1. There are two suits between the parties, one filed by the appellant as O.S. No. 13 of 1983 (formerly O.S. No. 1474 of 1981 on the file of the District Munsif s Court, Namakkal) and the other filed by the respondent as O.S. No. 56 of 1982 in the Sub-Court, Namakkal. The plaintiff in one suit is the defendant in
the other and vice versa. They are brother and sister. The plaintiff Nallappa Gounder in O.S. No. 13 1983 who is the defendant in O.S. No. 56 of 1982 has been unsuccessful in both the suits in the trial Court and has preferred both the present appeal suits against his sister Lakshmi. A.S. No. 495 of 1983 relates to O.S. No. 56 of 1982. The transferred A.S. No. 539 of 1989 relates to O.S. No. 13 of 1983. (We may refer to the plaintiff in O.S. No. 13 of 1983 and the defendant in O.S. No. 56 of 1982 as the appellant. The defendant in O.S. No. 13 of 1983 and the plaintiff in O.S. No. 56 of 1982 may be referred to as the respondent in the course of this judgment).
2. The appellant filed the suit O.S. No. 1474 of 1981 on the file of the District Munsifs Court, Namakkal, against the respondent, his sister, seeking the relief of permanent injunction restraining the respondent from interfering with his possession of the suit properties. He averred in the plaint that the suit properties belong to him absolutely and that he has been in possession and enjoyment of the suit properties accordingly by having the patta in his name and paying the kist in his own right for 14 years and that none else including the respondent has got right, interest or possession to the suit properties. He stated that he installed the electric motor and oil engine in Cauvery to irrigate his lands with the permission of the District Collector, Salem, and has improved the lands. He added that he is residing with his family in the house constructed by him in S. No. 174/15 and has been paying the house-tax. Since the respondent threatened to interfere in the cultivation of the lands by the appellant, the suit for injunction is said to have been filed by the appellant. (This suit was transferred from the District Munsif’s Court, Namakkal and numbered as O.S. No. 13 of 1983 later in the Sub-Court).
3. The respondent resisted the suit and denied in her written statement that the suit properties belong to the appellant (defendant) absolutely and that he is in possession of those properties for 14 years. The respondent stated that all the suit properties are the joint family properties belonging to Ramana Gounder
(the father of the appellant and the respondent) and the appellant and that some of the properties have been purchased in the name of Ramana Gounder and some in the name of the appellant. She, however, asserted that all the properties are the joint family properties of Ramana Gounder and the appellant. She stated that the improvement said to have been made by the appellant in respect of the suit lands is for the benefit of the joint family and that the house situate in S. No. 174/15 is also the joint family house. She further stated that on 13-10-1981, Ramana Gounder had sold away his half share in the suit properties for a proper consideration of Rs. 62,500/- in her favour and has given possession of the same to her. She contended that the claim of the appellant as if all the suit properties belong to him absolutely and the relief of injunction prayed for against the respondent is not sustainable. She added that the appellant should have asked for the relief of partition instead of bare injunction against her and that the suit should be dismissed.
4. The appellant filed a reply statement alleging that he could not state certain facts expressly in the plaint and that the real facts are that the sale deed executed by Ramana Gounder in favour of the respondent is a collusive, sham and nominal transaction which has been brought into existence by the respondent to grab at the properties of the appellant. He pleaded that he did everything of his own for the improvement of the lands at his cost apart from his spending for the marriage of the respondent, his sister. He further alleged that about 15 years ago Ramana Gounder had orally relinquished his right in respect of his half share in the joint family properties in favour of the appellant in the presence of Chengappa Gounder (father-in-law of the appellant), Chinnappa Gounder (neighbouring land owner), Palaniappa Gounder, son of Subba Gounder and one Krishnaswamy Gounder and that thereby the entire suit properties belong to the appellant himself absolutely. He also pleaded that Ramana Gounder, his father, has been ousted from possession and enjoyment of the properties for over the statutory period. He denied that Ramana Gounder is in the position of co-
parcener or co-owner. He reiterated his claim that he is entitled to the relief of permanent injunction against the respondent.
5. On the above pleadings, the following issues were framed by the trial Court ;
1) Whether the plaintiff is entitled to the entire suit properties?
2) Whether the defendant is a co-owner of the suit properties?
3) Whether the obstruction alleged is true?
4) Whether the suit for bare injunction is not maintainable?
5) Whether the suit as framed is not maintainable?
6) To what relief, if any, is the plaintiff
entitled?
6. In O.S. No. 56 of 1982 filed by the respondent as the plaintiff against the appellant (defendant), the respondent prayed for the relief of partition of the suit properties into two halves and allotment of one such share to her. Her averments in the plaint are almost the same as her pleadings in the written statement filed in O.S. No. 13 of 1983. She claimed that the entire suit properties belonged to the joint family consisting of Ramana Gounder and the appellant and that as Ramana Gounder became old and weak and unable to cultivate the lands, he had sold away his 1/2 share in the suit properties in favour of the respondent for due consideration of Rs. 62,500/- on 13-10-1981 and has given possession of the same also to her. She denied that the suit properties belong to the appellant absolutely as claimed by him and contended that she had to file the suit for partition in view of the fact that the appellant had sought an order of permanent injunction against the respondent by filing the suit O.S. No. 13 of 1983 (formerly O.S. No. 1474 of 1981).
7. The appellant, who is the defendant in the suit, filed his written statement raising almost the same contentions which he has raised in his plaint in O.S. No. 13 of 1983 and the reply statement filed by him in that suit.
He alleged that the sale dated 13-10-1981 relied on by the respondent is a collusive, sham and nominal transaction brought about without payment of consideration to Ramana Gounder and that the respondent will derive no right, title or interest thereunder. He alleged that the respondent is living with her husband in a different village and is not in possession of any of the suit properties. He ultimately contended that the respondent is not entitled to seek the relief of partition in respect of the suit properties.
8. On the above pleadings, the following issues were framed by the trial Court :
1) Whether all the suit properties are the joint family properties?
2) Whether the sale deed is true, valid and for consideration?
3) Whether possession was delivered to the plaintiff by the vendor?
4) Whether the plaintiff is entitled to partition and possession?
5) Whether the suit has been properly valued for purpose of Court-fees and jurisdiction?
6) To what relief, if any, is the plaintiff entitled?
9. Both the suits were tried together by the learned Subordinate Judge, Namakkal, as the parties to both the actions are the same and the claims and contentions of the parties are the same. Evidence was recorded in O.S. No. 56 of 1982 as evidence for O.S. No. 13 of 1983 also and a common judgment was rendered. The learned Sub-Judge found that the entire suit properties belong to the joint family consisting of Ramana Gounder and the appellant and that the land of 13 cents situate in S. Ho. 174/15 and purchased under Ex. B-2 in the name of the appellant does not belong to him as his self-acquisition and that on the other hand, the said property also forms part of the joint family properties. He held that the sale deed (Ex. A-1) executed by Ramana Gounder in favour of the respondent on 13-10-1981 in respect of his half share is true, valid and supported by consideration
and that the respondent is entitled to the said property and seek the relief of partition. He rejected the claim of the appellant that Ex. A1 is collusive, sham and nominal transaction. He observed that the appellant has filed the suit O.S. No. 13 of 1983 and sought the relief of permanent injunction against the respondent suppressing material facts. He also found that the plea of the appellant that Ramana Gounder had orally relinquished his right in the suit properties in favour of the appellant in the presence of the panchayat-dars is neither true nor valid as the same has not been executed and registered according to law. In the result, the learned Subordinate Judge granted a preliminary decree for partition and allotment of half share in the suit properties in favour of the respondent as prayed for by her in O.S. No. 56 of 1982 and dismissed the suit O.S. No. 13 of 1983 filed by the appellant holding that the appellant is not entitled to the relief of permanent injunction against the respondent. He directed the parties to bear their respective costs.
10. The defeated appellant has preferred the present appeals, i.e. A.S. No. 495 of 1983 against O.S. No. 56 of 1982 (partition suit) and Tr.A.S. No. 539 of 1989 against O.S. No. 13 of 1983 (suit for injunction). The appellant would contend that the trial Court has not properly considered the claim of the appellant that the suit properties belong to him absolutely but that it has wrongly held that they are the joint family properties of Ramana Gounder and the appellant and that Ramana Gouder is entitled to sell away his half share in the suit properties in favour of the respondent. He would allege that the evidence adduced by him with regard to the release of the right by Ramana Gounder in the suit properties in favour of the appellant has not been considered properly and that if the said plea is accepted, there is no question of the respondent claiming herself as co-owner to seek partition. He would reiterate that the entire suit properties belong to him absolutely as claimed by him in his plaint in O.S. No. 13 of 1983 and written statement in O.S. No. 56 of 1982 and that even assuming that the respondent is entitled to a half share, the appellant will be entitled to an order of
injunction in respect of the properties which are in his possession until they are partitioned by metes and bounds. He would also attack the truth and validity of the sale said to have been obtained by the respondent from her father, Ramana Gounder, under Ex. A1 and contend that it confers no right on the respondent as it is a sham and nominal transaction and as Ramana Gounder, the vendor himself has admitted in his evidence that he had given back the sate consideration from the respondent to the respondent herself. He would ultimately contend that he is entitled to the relief of injunction against the respondent and that no decree for partition should be passed in favour of the respondent.
11. In view of the above claims and contentions of the parties, the following points will arise for consideration in the present appeals :–
1) Whether all the suit properties belong to the joint family consisting of Ramana Gounder (P.W. 1) and the appellant, his son?
2) Whether the property of 13 cents (7 cents in S. No. 174/15 and 6 cents in S. No. 174/16) purchased under the sale deed dated 27-5-1959 (Ex. B2) in the name of the appellant and which is shown as item No. 3 in O.S. No. 56 of 1982 and which is also shown as one among hem No. 2 in O.S. No. 13 of 1983 is the self-acquisition of the appellant absolutely belonging to him?
3) Whether the oral release said to have been made by P.W. 1 in favour of the appellant and relied on by the appellant is true and valid?
4) Whether the sale made by P.W. I in favour of the respondent in respect of his half share in the suit properties on 13-10-1981 is collusive, sham and nominal transaction conferring no right on the respondent?
5) Whether P.W. 1 has lost his right in the suit properties by ouster and possession of the same by the appellant over the statutory period?
6) Whether the appellant is entitled to the relief of permanent injunction against the respondent?
7) Whether the respondent is entitled to the partition of the suit properties and allotment of her half share therein?
12. Ramana Gounder and the appellant are respectively father and son of a Hindu family. The respondent is the daughter of Ramana Gounder and sister of the appellant. It appears that the appellant and the respondent are the only two issues of Ramana Gounder. The respondent as the daughter of Ramana Gounder and sister of the appellant, cannot claim and has not claimed herself in he present proceedings to be a member of the joint family of Ramana Gounder and the appellant. She has come forward with a prayer for partition in respect of the suit properties only on the basis that she has purchased the half share in the joint family properties under the sale deed dated 13-10-1981 (Ex. A1) from Ramana Gounder. So far as the appellant is concerned, he has not disputed the fact that he and Ramana Gounder, his father, had constituted a Hindu oint family and he has not pleaded here that a partition had taken place between him and Ramana Gounder and that a divided status had already taken place. It has to be said that the joint family is the normal condition of Hindu society and every such family is ordinarly joint not only in estate, but in food and worship. Hence, a Hindu family must be presumed to remain joint and the burden of proving separation is upon the person alleging it. Since the appellant in the present case has neither denied the joint family status nor alleged separate status on partition between himself and Ramana Gounder and as he has not pleaded fairly and in a straight forward manner that all the suit properties belong to the joint family of himself and Ramana Gounder or that all the properties are his separate and absolute properties, the necessity of deciding the question whether all the suit properties are the joint family properties of Ramana Gounder and the appellant and whether all or any of the suit properties and particularly 13 cents covered by Ex. B2. (item No. 3) in O.S. No. 56 of 1982 are the self-acquisitions and separate properties of the appellant. The other points also have arisen for determination as incidental to the pleadings made by the respondent and the
contentions set up by the appellant in the two suits.
13. We may state even at the outset that the respondent has greatly proved by evidence and circumstances that all the suit properties in respect of which the respondent seeks partition and the appellant seeks an order of injunction are the joint family properties and that Ramana Gounder was lawfully entitled to sell away his half share in the suit properties in favour of the respondent. It makes little difference if Ramana Gounder had chosen to sell away his half share in favour of the respondent, his own daughter, in preference to a stranger. Ramana Gounder himself who has given evidence as P.W. 1, has deposed that all the suit properties are the joint family properties belonging to him and the appellant, his son, and that they remain undivided between them. He has added that he duly sold away his half share in the suit properties under Ex. A1 in favour of the respondent when the properties remained undivided and that now the respondent is entitled to the said share conveyed to her. He has denied that any of the suit properties belongs to the appellant. This aspect of P.W. 1’s evidence is rendered probable and true by the supporting admissions of the appellant and other circumstances. Though the appellant had asserted in the injunction suit (O.S. No. 13 of 1983) which was filed by him earlier to the partition suit (O.S. No. 56 of 1982) of the respondent, on 26-10-1981 that all the suit properties belong to him absolutely as his separate properties and that he remains in possession of the properties in that right and sought an order of injunction against the respondent on that ground, he has admitted in his written statement filed in the partition suit on 24-9-1982 which is long after the filing of the written statement by the respondent on 10-3-1982 in the injunction suit, that the suit properties belong to the joint family of himself and his father, Ramana Gounder. His evidence is that Ramana Gounder had orally relinquished his right in respect of the half share in the suit properties in favour of the appellant in the presence of some respectable persons mentioned in his reply statement filed by him in the injunction
suit. The words that have come from the mouth of the appellant are, “(vernacular matter omitted).”
Of course he has alleged in the same written statement filed by him in the partition suit that some of the suit properties were acquired by the appellant with his own funds. Thereby, he has sought to allege that all the suit properties are not the joint family properties of himself and his father Ramana Gounder. But, it has to be noted that the appellant who would plead that some of the properties are his self-acquisitions absolutely belonging to him and that some of the properties are the acquisitions of the joint family has not stated specifically what are the items of properties in the present suit which are his self-acquisitions and what are the items which arc the joint family properties. His plea as such is as vague as possible and it will deserve no consideration. If, according to the appellant, he has acquired some of the properties with the funds of himself and his wife and those properties are his self-acquisitions, he ought to have specified what are they in his written statement in the partition suit, though not earlier in his injunction suit. In the reply statement filed by him after the written statement of the respondent in the injunction suit also, the appellant has failed to plead what are the items of properties which are the joint family properties and what are the items which are his self-acquired and absolute properties. His reply statement proceeds as if all the suit properties belong to the joint family of Ramana Gounder and the appellant and that is why he pleads that Ramana Gounder had orally relinquished his share in those properties in favour of the appellant. His reply statement has a drastic change as his plaint proceeds on the basis that the entire suit properties belong to him absolutely. Not even a causal averment has been made by him in his plaint that he ever constituted a joint family with his father Ramana Gounder. He has made pretence as if he did not know anything about the sale made by his father Ramana Gouder to the respondent under Ex. A1 dated 13-10-1981. Ex. A1 has come into existence about a week prior to his filing of that suit. It may be noted that the appellant makes a claim
that 13 cents (item No. 3) covered by Ex. B2 and standing in his name as purchaser belongs to him as his self-acquisition in his evidence only during trial of the suits and not at any stage earlier to that and therefore no credence can be attached to his plea. We have already seen that this plea is quite vague.
14. Even if the appellant had adduced his evidence claiming that 13 cents (item No. 3) belongs to him absolutely as his self-acquisition, it is not possible to hold in this case that it is his self-acquisition and not a joint family property. He has not stated in his evidence whether this item of property was acquired by him with the moneys given by D.W. 2, his father-in-law for the sake of his daughter (the appellant’s wife). It is only D.W. 2 who would depose that he gave Rs. 950/- for purchase of 13 cents for the sake of his daughter. But, the sale deed (Ex.B2) has not been taken in the name of the daughter of D.W. 2 (appellant’s wife) though the acquisition is said to be for the benefit of D.W. 2’s daughter. It may be remembered here that the appellant has not whispered anything about his acquisition of 13 cents in his reply statement filed as an averment to the contention of the respondent in her written statement in the injunction suit. Even in his written statement filed in the partition suit which has come into existence long after the written statement of the respondent in the injunction suit, the appellant has generally stated that some of the properties were acquired by him with the moneys of himself and his wife. However, this piece of statement of the appellant will run contradictory to the evidence of D.W. 2, who has deposed that he provided funds for the acquisition of 3 cents. It may be remembered here that the appellant has raised the plea of self-acquisition of some properties among the joint family properties very belatedly in his written statement filed by him on 24-9-1982 in the partition suit. The respondent has filed her written statement on 10-3-1982 in the injunction suit of the appellant which was filed on 26-10-1981 claiming that all the suit properties are the joint family properties of Ramana Gounder and the appellant and that the half share of Ramana Gounder was sold away to the respondent on 13-10-1981.
However, the appellant has admitted during trial all the suit properties are the joint family properties.
15. Even if the land of 13 cents which the appellant would claim as his self-acquisition for the reason that Ex. B2 would stand in his name, it is not possible to hold in this case that it is the self-acquisition of the appellant. The appellant (D.W. 1) virtually admits in his evidence that the family owned three acres of lands. But, he would state that they were punja lands and converted into nanja at a huge cost of Rs. 50,000/-. It is his evidence that an electric motor and an oil motor have been installed to irrigate the lands from Cauvery River and as such they have become nanja lands. The evidence shows that even if the lands of 3 acres of punja were converted into nanja and improved as aforesaid, it ought to have been done from the income of the joint family and not with the money of the appellant. This is evident from the contradiction that the appellant would claim in his evidence that the improvement of the lands was done by him by the sale of his wife’s jewels, while D.W. 2, who is none else than his father-in-law would say that the improvement was done with the family income. D.W. 2 has not stated that the appellant alone spent for the improvement of the lands with his own funds. This aspect of the evidence would make it crystal clear that the 13 cents in dispute ought to have been purchased with the nucleus of the joint family properties and that the appellant cannot claim the same as his self-acquisition for the simple reason that Ex. B2 stands in his name. It might be that Ex. B-2 was taken in the name of the appellant as he is the only son of Raman Gounder and out of affection in him.
16. In this context, we may quote here the principles enunciated by a Division Bench of this High Court in Ponnuswamy v. Meenakshi Ammal, (1989) 2 Mad LJ 506 (2) which is as follows :
“In so far as the presumptions in respect of joint family are concerned, the law is well settled now. There is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition, a party claims that any particular
item of property is joint family property, the burden of proving that it is so rests on the party asserting it. According to the judicial pronouncements, to prove that a particular properly is 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 joint family property or that it was purchased with 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. It is to be noted that in cases where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family.”
Reference has also been made to the ruling of the Supreme Court in Srinivas v. Narayan, which lays down the following principle (Paras 8 and 10, at pp. 382-83 of AIR) :
“Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, 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.
Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the
extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisition could be made, even though it must be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case.”
The learned Judges have referred to earlier judgments of the Supreme Court and High Courts while stating the above principles. In Gangadhar Das v. Gadadhar Das, also, the same view has been expressed. We need not multiply the authorities on this proposition. If we take into consideration the evidence and the nature of the plea raised by the appellant, we may safely hold that 13 cents of lands is also a joint family property along with other properties which are admittedly joint family properties. After all, the land of 13 cents has been purchased for Rs. 950/- which is not much.
17. No doubt, a house has been constructed on the said 13 cents, and the appellant would plead that he put up the construction with his own funds. But, once we hold that the very land of 13 cents is part and parcel of the joint family, the construction put up thereon also must be construed as the joint family property. There is no evidence as to whether the appellant is owing any other properties of his own or was doing any business separately and was deriving income individually so as to construct the house. Even the plea that the construction was put up on the land of 13 cents with his own funds, has been raised by him belatedly during trial and not in the written statement in the partition suit. He has not pleaded in his written statement that the construction was made with the moneys given by D.W. 2, his father-in-law. But, D.W. 2 would say in his evidence that he provided the funds to the appellant for the construction of the house. As already pointed out, the written statement is silent as to
whether the 13 cents of land on which the construction has been put up is his self-acquisition specifically. The appellant has produced a house tax receipt (Ex. B-23) only for the date 6-10-1981 standing in his name and not earlier.
18. If we hold that 13 cents of land with the construction put up thereon is also an item of joint family property, the appellant and his father, Ramana Gounder, will be entitled to the same as they constituted a joint family and they have remained undivided in status. Where a Hindu family was shown to have been once joint, the presumption is that it continues to be joint even afterwards, and hence where property is shown to have been once the property of the joint family, it must be presumed to continue to be joint till the contrary is shown. There can be no legal impediment for Ramana Gounder who was the head and member of a joint family to dispose of his half share in the suit properties by way of sale under Ex. A-1 dated 13-10-1981 as he was entitled to a half share therein.
19. The criticism on behalf of the appellant that the sale made by P.W. 1 under Ex.A-1 is a collusive, sham and nominal transaction and that it confers no right, title or interest in favour of the respondent is not sustainable. A careful scrutiny of Ex. A-1, the evidence of P.W. 1 and other circumstances will apply show that P.W. 1 had really and validly conveyed his half share in the suit properties which are proved to be joint family, properties for proper consideration and that no cricitism can be levelled against the same by the appellant. P.W. 1 who is none else than the father of both the appellant and the respondent has come forward and subscribed his evidence to the effect that he received a consideration of Rs. 62,500/- from the respondent for the sale of his half share in favour of the respondent after negotiation. He has denied the suggestion that he did not receive the sale price from the respondent. He would assert in his evidence that there was a bargain for the sale of his share for Rupees 63,000/- and that ultimately the respondent had agreed to purchase for Rs. 62,500/-. If P.W. 1 would state in his evidence that he
had given back the sum of Rs. 62,500/-which he received as consideration from the respondent, it cannot be construed as a transfer devoid of consideration. It is only after having received the consideration of Rs. 62,500/-from the respondent, P.W. 1 has given back the amount to the respondent. It might be that the amount was given back by P.W. 1 to the respondent, who is none else than his daughter, to be kept safely, as P.W. 1 was staying in the house of the respondent herself after P.W. 1 had left the house of the appellant. The evidence of P.W. I is that he was neglected by the appellant and his wife and that consequently he had to go out and stay with the respondent in her house and have his mess also there. We find no material at all to show that there was collusion between P.W. 1 and the respondent in the execution of Ex. A-1 or that the transaction in Ex.A-1 was a sham and nominal one. It will be significant to note here that the appellant has not at all disputed the capacity of the respondent to pay Rupees 62,500/- as the sale price to P.W. 1.
20. The appellant having pleaded in the partition suit that Ex.A-1 is a collusive, sham and nominal one during trial of the suits, the learned counsel for the appellant sought to argue that what was conveyed under Ex.A-1 must be construed as a gift. This point has been invented on the side of the appellant to show that a gift made by a member of the joint family in respect of the joint family properties is invalid. But, it has to be stated that there are no materials at all to support this plea and the plea of the appellant is to the contrary. It has to be said that the plea that Ex.A-1 is a sham and nominal transaction and the plea that the transaction in Ex. A-1 is a gift will be mutually contradictory.
21. In S. Venkappa Devadiga v. Smt. S. Rangu S. Devadiga , it has been held as follows (para 8, at p. 892 of AIR) :–
“It is well settled that the decision of a case cannot be based on grounds outside the plea of the parties, and that it is the case pleaded which has to be bound,”
Similarly, it has been held in Venkataramana
Devaru v. State of Mysore, as follows (at p. 263 of AIR) :
“The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case. And it would neither be legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence to come to a finding on matter which was not in issue, and decide the rights of parties on the basis of that finding.”
In the circumstance, we have to reject the contention of the appellant that the sale under Ex.A-1 is a collusive, sham and nominal one and that on the other hand, it is a true and valid sale conferring right, title and interest on the respondent.
22. The appellant, of course, has raised a plea during trial that P.W. 1 had orally relinquished his half share in the family properties in favour of the appellant and that consequently P.W. 1 was not competent to sell away his half share in favour of the respondent under Ex.A-1 on 13-10-1981. The appellant would allege that the oral release made by P.W. 1 took place 14 or 15 years prior to the present litigations. But, it has to be pointed out that no oral release can be pleaded by the appellant as such, as the properties in respect of which the oral release is said to have been made are immovable properties which exceed the value of Rs. 100/-. In such case, it was mandatory on the part of the appellant to have a release deed executed and registered. Evidently, the appellant has not pleaded specifically in his reply statement filed in the injunction suit and the written statement filed in the partition suit as to what is the date, month and the year in which the alleged release by P.W. 1 took place. He merely alleges that the oral lease was made by P.W. 1 in the presence of D.W. 3 and some others 14 years or 15 years ago. Whatever amount of oral evidence that is adduced in this regard will be of little use. As already pointed out, there must be a document executed and registered evidencing the release claimed by the appellant. In the circumstance, we have to hold that the oral
release set up by the appellant is neither true, nor valid. The learned counsel for the appellant did not press this point seriously during the hearing of these appeals.
23. The contention of the appellant that P.W. 1 had lost his right in the suit properties by reason of ouster and adverse possession of the entire suit properties for over the statutory period is also found to lack substance and merit. Undeniably, P.W. 1 and the appellant had constituted a Hindu joint family and they remained undivided in status till 13-10-1981 when P.W. 1 had executed Ex.A-1 in favour of the respondent and conveyed his half share in the joint family properties to the respondent. Once we disbelieve and reject the contention of the appellant that P.W. 1 had not released his half share in the suit properties in favour of the appellant at any time prior to 13-10-1981, the question of ouster and adverse possession will not arise and it cannot be raised against P.W. 1 and the respondent who claims right under Ex.A-1. We have already seen that if the appellant has made improvement in the lands or put up construction in 13 cents covered by Ex.B-2, they were made by the appellant from out of the income of the joint family and for the benefit of the joint family. The sale made by P.W. 1 under Ex.A-1 has taken place just a year prior to the litigation. Though the appellant would pretend ignorance of the execution of Ex.A-1 by P.W. 1 and has couched his plaint in the injunction suit in that fashion, the evidence makes it clear that he was aware of the same as he had obtained a registration copy of Ex.A-1 even prior to the filing of the injunction suit. The plea of ouster and adverse possession is not seriously pressed on the side of the appellant during the hearing of these appeals.
24. The net result of our findings are that all the suit properties inclusive of 13 cents (item No. 3 comprised in Ex.B-2) belonged to the joint family consisting of Ramana Gounder (P.W. 1) and the appellant, that the said 13 cents of land is not the self-acquisition of the appellant, that the oral release pleaded by the appellant is neither true nor valid, that the sale made by Ramana Gounder (P.W. 1) in
favour of the respondent under Ex.A-1 is true and valid and is not collusive, sham and nominal as contended by the appellant, that P.W. 1 has not lost his right in the suit properties by ouster or by adverse possession, that the appellant is not entitled to the relief of permanent injunction and that the respondent is entitled to the partition and allotment of her half share in the suit properties as prayed for by her. We are in perfect agreement with the findings of the learned Subordinate Judge in all respects in both the suits. Both the appeals are devoid of merits and are liable to be dismissed.
25. In the result, both the appeals are dismissed. The judgment and decree of the Court below in both the suits are confirmed. The parties shall bear their own costs in the circumstances of the case.
26. Appeals dismissed.