JUDGMENT
Abdul Hadi, J.
1. Plaintiffs are the appellants in this second appeal. They lost in both the courts below. The suit is for declaration of plaintiffs’ title and consequential injunction in respect of the suit property or in the alternative for possession thereof. Though in the plaint schedule, initially the suit property is stated to be comprised in S. No. 124/2, Rettakulam Village, measuring 2.42 acres, later in the said schedule, it is mentioned as follows:
P.S. Present enquiry on the part of the plaintiffs reveal that the suit property is included in S. No. 124/2 as well as 124/3 as a result of some recent measurements.
2. Regarding the relationship between the parties, there is no dispute. One Veeran had two sons, Kathan and Semban. Kathan’s son is the 1st plaintiff and Kathan’s daughter is 3rd plaintiff, 2nd plaintiff is the son of the 1st plaintiff. Semban’s son is Thannah. Thannah’s wife is Kalli (D.W.2), Thannah’s sons are Sivankali and Kathan (junior). Among these, all but Kalli, Kathan (junior) and the plaintiffs, are dead.
3. According to the defendant, he is the purchaser of the suit property under Ex.B-1 dated 11.10.1975 from the abovesaid Kathan (junior). The plaint is dated 27.6.1976.
4. According to the plaintiffs, the suit property was purchased under Ex.A-1 dated 30.5.1944 for Rs. 500 by Kathan as his exclusive property, and it devolved on the plaintiffs on his death. But, according to the defendant, the said Kathan so purchased in his name for the joint family of his branch and the branch of the defendant’s vendor Kathan (junior) since even then Semban and Thennah were dead, and Kathan, as the senior male member, was managing the entire family. Further, according to the defendant, there was a partition in the said family, whereby the present S. No. 124/2, measuring 1.29 acres was allotted to Semban’s branch, while the present S. No. 124/3 lying just east of present S. No. 124/2 was allotted to Kathan’s branch and then under Ex.B-1, the property allotted to Semban’s branch was sold to the defendant.
5. Thus, the defendant concedes that the present S. No. 124/3 is that of the plaintiffs. The dispute, therefore, is only with reference to the present S. No. 124/2 measuring 1.29 acres.
6. The Courts below have accepted the case of the defendant and granted decree for declaration and injunction only in respect of the present S. No. 124/ 3 and dismissed the suit in respect of the present S. No. 124/2.
7. So, the only two questions argued before me are, (1) whether the properties under Ex.A-1 (viz. the alleged old S. No. 124/2, measuring 2.42 acres) was purchased by Kathan as his self-acquired property, or, as the property of joint family of Kathan and Semban’s branches, and (2) whether subsequently there was a partition between the said two branches.
8. I have considered the rival submissions. First of all, admittedly the property purchased under Ex.A-1 was in the name of Kathan. So, even assuming that there was a joint family of the abovesaid both the branches, it is for the defendant to plead and prove that the abovesaid purchase under Ex.A-1 was for the family of the said two branches. In other words, even assuming that Kathan remained a member of the said family, there is no presumption in law that Ex.A-1 property purchased exclusively in Kathan’s name was only purchased by the family of the said two branches. It is settled law that there is no presumption that any property standing in the name of the Kartha or a member of the family is a joint family property. The person who wants to set up the case that the property purchased in the name of a coparcener is that of the family, must plead and prove the existence of a joint family nucleus with sufficient surplus income on the date of purchase. (Vide: Kannika Parameswari Devasthanam v. Sadasivam Chettiar , Kanadaswami Chettiar v. Gopal Chettiar and Mudigowda v. Ramachandra .
9. But, in the present case, the relevant averments in the written statement are only as follows:
The impression sought to be made therein as if the suit property exclusively belonged to Katha Kudumban is ingenuous but misleading. The defendant is not aware of the fact of the purchase of the suit property by Kathan. The said purchase and his consequent obtaining of a loan from the Government for digging a well etc. could only be under the circumstances narrated below. It is understood that the suit land was originally included in patta No. 136. But the plaintiff purposely suppresses the fact that it is not in the said patta any longer and the suit land is now consisting of two sub divisions… Since Semban and Thannan died prematurely it was Kathan who as the senior male member was managing the entire family. It is only under the said circumstances the document and title deeds ought to have been obtained in his name and the transactions entered into by him… In a partition arrangement that had taken place in the family the western portion of the suit property which is now comprised in S. No. 124/2 measuring 1 acre, 29 cents has been allotted to Semban’s branch while the eastern portion now comprised in S. No. 124/3 has been allotted to Kathan’s branch.
Thus, there is no averment regarding the abovesaid nucleus or the above referred to surplus income therefrom on the date of ExA-1 (30.5.1944). There is also no positive assertion in the written statement that the property purchased in the name of Kathan (under Ex.A-1) was for the abovesaid family and was purchased out of the funds of the said family.
10. Both the courts below have not taken into account the abovesaid principles of law enunciated in the abovesaid decisions and the absence of the abovesaid requisite plea in the written statement. Without doing so, the lower appellate court has tried to interpret the recital found in Ex.A-1 and had drawn an unwarranted inference that the “family consisting of Kathan, Semban and their father Veeran were getting sufficient surplus income from the joint family properties and Ex. A-1 sale deed should have been obtained from the income from the joint family properties” (emphasis supplied). No doubt Ex.A-1 refers to two prior othies, one dated 17.9.1914 and another dated 16.4.1917, for Rs. 100 each in favour of Veeran over the property sold under Ex.A-1. But, as mentioned above, in the absence of the above referred to plea, the courts below erred in drawing the above referred to inference just from the abovesaid recital in Ex A-1 regarding the abovesaid othies.
11. That part, the important factor to be noted is that the abovesaid othies were long prior to Ex. A-1 (30.5.1944), one in 1914 and another in 1917. If at all those othies may prove that the family had some income in 1914 or 1917, as the case may be. But, that will not prove that the family had income at the relevant time when Ex.A-1 was executed. As already indicated, as per the principles laid down in the abovesaid decisions, there must be proof that the family had sufficient surplus income at the time when the abovesaid purchase was made under Ex.A-1. That apart, the abovesaid othies were only for Rs. 100 each. Even assuming that the family was able to lend money to the extent of Rs. 100 once in 1914 and then in 1917, it cannot be concluded that there was sufficient surplus income in the family at the time when Ex.A-1 purchase was made. It has been held in Pattusami Padayachi v. Mullaiammal (1976)2 M.L.J. 225-(D.B.), thus:
The coparcener who challenges such title in the member and pleads that they should also be brought to the hotchpot, ought to establish by eogent and mature evidence that there was enough surplus income which was available in the joint family and which positively could be the foundation for such annexures made by one or the other of the members of the joint family. In the absence of such nexus between the purchase price of the purchased properties and the available surplus of the joint family, the presumption that the properties in the names of the members of a coparcenary should automatically be treated as joint family properties would fail.
[emphasis supplied]
Therefore, there is no scope at all for holding that the suit property was the joint family property.
12. Further, the lower appellate court no doubt points out that the reply statement of the plaintiff does not specifically deny the averment in the written statement that Semban and Thannan died at a very early stage and that Kathan was managing all the family properties as manager of the joint family. But, even assuming so, mere existence of the abovesaid joint family will not go to prove that the property purchased under Ex.A-1 in the name of Kathan was for the said family. The only witness belonging to the abovesaid family is D.W.2, the wife of the abovesaid Thannan. Even she does not speak of any such abovesaid nucleus or surplus income therefrom on the date of Ex.A-1. The courts below also have not taken note of this material fact. Therefore, there is no reason to hold that the property purchased under Ex. A-1 was the joint family property of the abovesaid alleged family of the abovesaid two branches. Hence, the necessary conclusion is that it was only the self-acquired property in the hands of Kathan.
13. If, thus, the suit property was the self-acquired property of Kathan, it is obvious that the defendant can have no title to it. At any rate, even assuming that the suit property was joint family property of the abovesaid two branches when Kathan purchased it under Ex.A-1, unless the defendant proves his abovesaid alleged plea of subsequent partition, he cannot have exclusive title to the suit property. Here again, I find that the Courts below have erred in holding that there was such a partition. Here too, the error is a substantial error of law since the Courts below have not considered several material features, which I shall presently point out. First of all, there is absolutely no plea as to when this alleged partition took place. As extracted above, the written statement simply says, “in a partition arrangement that had taken place in the family”, without stating as to when actually such a partition arrangement took place. No doubt, D.W.2, who gave evidence in 1977 deposed that the partition took place 15 years ago. But D.W. 1 says differently that the said partition took place 10, 15 years ago. Further, many documents marked by the defendant himself, presumably to prove such partition, do not appear to relate to the suit property at all. For example, Exs.B-5 to B-7 the kist receipts dated 10.2.1961,27.1.1963 and 4.3.1972 respectively do not refer to suit S. No. 124/2 at all. The trial court states that “under Ex.B-5, Kalli has paid the kist for patta No. 136” and “Ex.B-6 is for patta No. 136”. But, patta No. 136 is not at all mentioned in Ex.B-5 or Ex.B-6 or Ex.B-7. The trial court also says Ex.B-7 is the kist receipt paid by Vennilai Othidar D.W.3 in respect of patta No. 406. Even assuming patta No. 136 was the old patta and patta No. 406 or some other patta No. is the new patta, with reference to the suit property, no evidence has been brought to my notice, correlating the two. Even when I put a specific question to the learned Counsel for the respondent, she is unable to point out such a correlation. Therefore, the lower appellate court has erred in stating that Exs.B-5 to B-7 support the abovesaid plea of partition. Even in Ex.B-3, survey notice issued to Sivankali, the brother of the vendor of the defendant, only mentions patta No. 406. Ex.B-4 is also in relation to patta No. 406. Ex.B-8 also only relates to another patta number, viz. patta No. 636. While so, the lower appellate court has erred in stating that Ex.B-8 proves that a partition has taken place and each party is in possession and enjoyment of his respective portion in pursuance of the partition. Further Ex.B-9 survey notice dated 29.11.1972 also relates to some other patta number viz. patta No. 307.
14. That apart, I find Ex.A-15 which is the certified extent of the adangal in relation to the abovesaid suit S. No. 124/2 for fasli 1378 (1968), shows that even in 1968, the suit property was standing in the name of Kathan only. This would also indicate that there was no partition in 1962 or earlier as deposed by D.W.2. Not only what is found in Ex.A-15 has not been considered by the Courts below, but several other documents filed on behalf of the plaintiffs also have not been considered at all by the courts below. Some of them are Exs.A-7 to A-9, kist receipts dated 17.12.1962, 23.3.1967 and 24.3.1967 respectively. These receipts were issued to the abovesaid Kathan for faslis 1371, 1373 to 1376, 1368; 1369 and 1372 to 1376. Some other documents are Exs.A-10 to A-14. These are kist receipts issued in favour of the 1st plaintiff. These are roughly for the period from 1961 to 1981. These documents also would show that there was no partition as alleged by the defendant. In these documents, the abovesaid patta No. 136 is mentioned. Therefore, the decision of both the courts below on the abovesaid two points are certainly perverse, in the light of what I have stated above
15. In the result, the second appeal is allowed, the judgments and decrees of both the courts below are set aside and the suit is decreed for the relief of declaration and injunction prayed for with costs throughout, on the footing that the plaintiffs have established their title to the suit property and their possession thereof.