BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:30/06/2009 CORAM THE HONOURABLE MS.JUSTICE R.MALA S.A(MD)No.1066 of 2006 and S.A(MD)No.102 of 2007 and M.P(MD)No.1 of 2006 S.A.No.1066 of 2006 V.Ayyanar .. Appellant/Defendant vs. 1. Rajendran 2. Muthuselvam 3. Mrs. Jeya .. Respondents/plaintiffs
S.A.No.102 of 2007
1. Rajendran
2. Muthuselvam
3. Mrs. Jeya ..Appellants/Plaintiffs
vs.
V.Ayyanar ..Respondent/Defendant PRAYER IN S.A.NO.1066 OF 2006 Second Appeal filed under Section 100 of the Code
of Civil Procedure, against against the decree and judgement made in A.S.No.27
of 2005, dated 28.6.2006 on the file of the District Judge,Srivilliputhur,
Virudhunagar District by partly allowing and confirming the decree and judgement
made in O.S.No.6 of 2003, dated 21.02.2005, on the file of the Subordinate
Court, Aruppukkottai.
PRAYER IN S.A.NO.102 OF 2007
Second Appeal filed under Section 100 of the Code
of Civil Procedure, against against the decree and judgement made in A.S.No.27
of 2005,dated 28.6.2006 on the file of the District Judge,Srivilliputhur,
Virudhunagar District by modifying and confirming the decree and judgement made
in O.S.No.6 of 2003, dated 21.02.2005, on the file of the Subordinate Court,
Aruppukkottai.
!For Appellant in S.A.No.1066/06 …Mr.K.Chelladurai
and defendant in S.A.No.102/2007
^For Respondents in S.A.No.1066/06 …Mr.S.Parthasarathy
and appellants in S.A.No.102/07
:COMMON JUDGEMENT
The averments of the plaint is as follows:
The plaintiffs are brothers and sister. The defendant is the father
of the plaintiffs. Suit properties are as a joint family properties. So far,
no partition has been effected. The properties were in joint possession and
enjoyment of the plaintiffs and defendant. The income from the joint family
properties has been divided by the plaintiffs and defendant. The Government
kist have been paid jointly by the plaintiffs and defendant. The defendant is
the Kartha of the family. The suit properties are standing in his name and kist
was also paid in his name, he alone managed the property, but of the income from
these joint family properties the defendant/Father had purchased some properties
in his name i.e. item Nos. 7 to 9. So it also joint family properties. The
defendant is now leading wayward life not disclosed the income from the suit
properties. The plaintiffs demanded partition through Advocates’ notice, dated
29.7.2002. But the defendant refused to give share to the plaintiffs. The
defandant gave a reply, dated 09.12.2002. Since the defendant has refused to
give the share to the plaintiffs in the suit properties, hence,the plaintiffs
are constrained to file a suit for partition of 3/4 share in the suit property,
they pray for the preliminary decree of partition.
2. The gist and essence of the written statement is as follows:
The plaintiffs are defendant’s children. As a father, the defendant has
properly maintained them as a Kartha of the family. The defendant is a
Headmaster in Panchayat Union Primary School and he retired from service. The
Suit items 2,3,4 and 6 are the ancestral joint family properties. The 6th item
of the suit properties is a dry land and it is not a wet land. 1 and . acre land
is only a punja land. The nanja land is only to the extent of 90 cents. During
the normal monsoon only, they can cultivate paddy. If there is a failure in the
monsoon, he is not in a position to raise any crops. During the season, the
income from the ancestral property is only Rs.8,000/- per annum. The paddy
harvested from nanja land is not sufficient to maintain the family. So, they
purchased paddy from outside. Since the defendant is a Teacher, he also used his
salary for the benefit of the family. After met out the family expenses, the
remaining portion of the salary has been utilised for his personal expenses and
save the same and thus he purchased item Nos.1, 5,7 of the suit properties in
his own name and enjoyed the same as his separate property. So, the plaintiffs
are not entitled for the share in item Nos.1,5 and 7.
3. It is false to contend that out of income from this ancestral joint
family properties, item Nos. 1, 5 and 7 are purchased. Item 8 and 9 are not
joint family properties and item No.8 belongs to one Thanam, Item No.1 was
belonged to one Maheswari. So the plaintiff and defendant have no right over
the property. They are necessary party to the suit, since they are not
impleaded, the suit is bad in non-joinder of necessary parties.
4. Plaintiffs 1 and 2 are in possession of items 5 and 6. The defendant
is ready to give share to this plaintiffs in item Nos.2,3,4 and 6. The
plaintiffs are entitled share only in the ancestral joint family properties.
This defendant is having two houses at Nedungulam Village and also they own one
acre 2 cents in S.No.32/3B. So that property was also to be included. The
defendant has no objection to give the share in item Nos. 2,3, 4 and 6 and he
prays for the dismissal of the suit in respect of item 1,3,5, 7 and 8.
5. The learned Subordinate Judge, Aruppukottai after considering the
averments both in the plaint and written statement, framed six issues and
considering the evidence of P.Ws.1 to 5 and D.W.1 and Exs.A1 to 6 and Ex.B1,
came to the conclusion that the suit is bad for non-joinder of necessary
properties, item Nos.7, 8 and 9 are not joint family properties and accordingly,
preliminary decree of partition of “rd share in item Nos.1 to 6 is passed and
dismiss the suit in respect of 7 to 9. Against that, the plaintiffs preferred
an appeal in A.S.No.27 of 2005 and the same is partly allowed granting ” share
in item No.7 and modified the decree that the plaintiffs and appellant are
entitled to ” share in item No.7 and dismissed the appeal in respect of item
Nos.8 and 9. Against the allowing of the appeal, the defendant preferred an
appeal in S.A.No.1066 of 2006 in respect of item No.7 and for the dismissal of
the appeal in respect of item Nos. 8 and 9, the plaintiffs preferred this appeal
S.A.No.102 of 2007.
6. This Court after perusing the entire material records, admitted
S.A.No.1066 of 2006, on the following Substantial questions of law:
1. Whether the findings of the first appellate court reversing the
findings of the Trial court by stating that the plaint schedule item No.7 is
also one of the joint family properties though the same has been purchased in
the name of this appellant, is legally correct and sustainable in the absence of
any proof as provided under Sections 101 to 104 of the Indian Evidence Act,
1872?
2. Whether the decree and judgement of the first appellate court that the
respondents/plaintiffs are entitled to get 3/4th share in Item No.7 of the
plaint schedule property also by treating the same as one of the ancestral
joint family properties is legally correct and sustainable when the property has
been purchased by this appellant/defendant in his name from and out of his own
earnings of salary as a Teacher?
7. This Court after perusing the entire material records, admitted
S.A.No.102 of 2007, on the following substantial questions of law:
1. Are the courts below correct and justified in not granting a decree
with regard to items 8 and 9 when the presumption is that the family is joint
and the properties are joint family properties?
2. When the properties are purchased from and out of the joint family
income or funds in the name of the third parties whether it loses the character
of joint family property?
3. Are the Courts below ought to have drawn adverse inference as against
the defendant when the defendant has not come to court with clean hands?
8. For the convenient, parties are called as it is in trial Court since
both parties preferred the appeal.
9. The plaintiffs filed a suit for partition in respect of 9 items of the
properties stating that the suit properties are joint family properties of the
defendant their father and themselves. Iyyanar/defendant is having two sons and
one daughter. They are the plaintiffs. The defendant herein raised a plea that
item Nos.1,5 and 7 are his separate properties and item no.8 and 9 are not
belonging to their family. The trial court after considering the oral and
documentary evidence, a preliminary decree has been passed in respect of item
Nos. 1 to 6 and suit was dismissed in respect of 7 to 9. Against that,
A.S.No.27/2005 was preferred by the plaintiffs. An appeal was preferred before
the District Judge, Srivilliputhur and that appeal has been partly allowed
stating that item No.7 of the suit properties is a joint family property. So the
Plaintiffs are entitled to 3/4 share and dismissed the suit in respect of item
No.8 and 9 is confirmed. Against the allowing of appeal in respect of item No.7
of the suit property, the defendant preferred S.A.No.1066/2006, the plaintiff
preferred an appeal S.A.No.102/2007 for dismissal of the appeal in respect of
suit properties.
10 Admitted facts of the case is that the defendant Iyyanar is the father.
Children are plaintiffs. He is having two sons and one daughter and each having
1/4 share in the suit property. Even though the defendant/father raised a plea
that item Nos.1,5 and 7 are his separate property and item Nos.8 and 9 is not
belonging to the family, the trial court has granted a decree in respect of item
Nos. 1 to 6 and dismissed the suit in respect of item Nos.7 to 9. The defendant
has not filed any appeal against item Nos.1 and 5. But the plaintiffs alone
preferred an appeal claiming 3/4th share in item Nos.7 to 9. The finding of
trial Court that the items 1 and 5 are joint family properties is final.
11. Now, the present appeal is filed by the defendant stating that item
No.7 is his separate property. He purchased the item No.7 from one Mayandi
under Ex.B1 on 15.04.1985. Admittedly, it is a vacant site. Now three houses has
been constructed in the place and two were in occupation of the plaintiffs 1 and
2 and one house is in possession and enjoyment of the defendant.
12. The main contention raised by the defendant is that item No.7 of suit
property is his separate property. Even though the family is having ancestral
property there is no surplus income from the ancestral nucleus. The 7th item of
suit property purchased out of his personal income since he is a Headmaster by
profession. Moreover, he has deposed that the income from the family is not
sufficient to meet out the family expenses. In some time, he met out the family
expenses out of his salary. Besides these, P.W.1 is the first plaintiff P.W.2
is the second plaintiff and P.W.3 is the third plaintiff. P.W.1 has deposed that
each and every year income from the joint family properties has been divided
among themselves. The income from the joint family property is sufficient for
the maintenance of the family. He himself stated that since he is working as a
Noon-Meal Organizer his monthly salary is Rs.1000/- He is utilizing his salary
for his own purpose. His brother who is a road worker has also utilized his
salary for his own purpose. His candid admission that his father has utilised
his salary for his own purpose. In that evidence, he has stated as follows:
tUkhdj;ij me;j me;j tUlk; gphpj;J mDgtpg;Bghk;. jhthr; brhj;jpy; nUe;J
tUk; tUkhdBk vd; FLk;g guhkhpg;g[f;F BghJkhdjhf nUf;Fk;. ehd; rk;ghjpf;Fk;
:U.1000/-$ ehd; jdpf;Foj;jdk; te;j gpwF jdpahf jhd; bryt[ bra;Btd;. mJBghy;
jhd; vd; jk;gpa[k; mtuth;f;Fs;s tUkhdj;ij jdpj;jdpahf bryt[ bra;thh;fs;. vd;
jfg;gdhh; Mrphpah; bjhHpy; :Kyk; tUk; tUkhdj;ij mth; brhe;j bryt[f;F
itj;Jf;bfhs;thh;.”
13. P.W.2 in his evidence has stated as follows:
g{h;tPf brhj;Jf;fspypUe;J tUk; tUkhdj;ij me;je;j Mz;L gphpj;J mDgtpj;J
tUtjhf TwpapUg;gJ rhpjhd;. ehDk; me;j brhj;Jf;fspypUe;J tUk; tUkhdj;ij thA’fp
mDgtpj;jpUf;fpBwd;.
So the plaintiffs themselves admitted that the income from the joint family
properties has been divided every year. In the above circumstances, evidently
there is no surplus ancestral nucleus for purchasing 7th item of suit property.
Moreover, D.W.1 in his evidence stated that due to monsoon failure he has not
get sufficient income from the joint family ancestral properties. At that time
he utilised his salary for maintaining the family. In his chief-examination, he
has stated that he joined as a Teacher in the year 1957 and in the year 1985 his
monthly salary is Rs.4000/- Out of his personal earning he purchased item No.7
of the suit property in the year 1983 and at that time it is only a vacant site.
The learned counsel for the defendant would rely upon a decision in Gowri Ammal
and another .vs. Vaithilingam (deceased) and 10 others reported in 2001 3 CTC
577, which reads as follows:
” Person who claims that property in such managers or Kartas names is
joint family property should establish that joint family property has nucleus
and also that surplus funds of such joint family from nucleus was available
during time of purchase of property”.
14. It is also stated in the same decision in paragraph No.18, that:
18. In view of the above said settled principles of law as held by the
Division Benches of this Court, if the existence of the joint family nucleus is
established, the burden would shift on the manager to establish that he
purchased the property from out of his self-earnings cannot be accepted. So, the
person who claims that the property in the name of the manager of the joint
family is the joint family property, has to establish not only the existence
of nucleus of joint family but also the availability of surplus funds of the
family from the nucleus during the time to purchase of the said property.”
So the burden is upon the person who claim that item No.7 is a joint family
property. So the plaintiffs have to prove that there is surplus ancestral
nucleus for purchase 7th item of property and as already culled out the portion
of evidence would clearly proved that there is no surplus income from joint
family properties and each and every year income from the ancestral property
has been divided between them. In the above circumstances, the burden is upon
the plaintiffs to prove that there is ancestral surplus nucleus for purchase of
7th item of suit property and but they failed to do so.
15. The learned counsel for the defendant relied upon a decision in
P.R.Kannaiyan(died) and others .vs. Ramasamy Mandiri, son of Govinda Mandiri and
others reported in 2005 4 CTC 457 and it reads as follows:
“If the Kartha has some separate and independent income burden of proving
that property is joint family property is on person who claims such acquisition
standing in the name of Kartha is joint family property and that there was
sufficient surplus from joint family property and out of which property in
question could have been acquired by Kartha”
while considering the citation as already stated that the plaintiffs failed to
prove that there is surplus income from the ancestral nucleus. Per contra, the
defendant had proved that he was a Teacher by profession, at that time having
independent income and out of that income he has purchased the property i.e.
item No.7 of suit property. The learned counsel for the defendant also relied
upon a decision in D.S.Lakshmi and another .vs. L.Balasubramaniam and another
reported in 2003 (10) SCC 310 and urged that burden to prove:
“There is no presumption of a property being joint family property only on
account of existence of a joint Hindu family. The one who asserts has to prove
that the property is a joint family property. If, however, the person so
asserting proves that there was nucleus with which the joint family property
could be acquired, there would be presumption of the property being joint and
the onus would shift on the person who claims it to be self acquired property to
prove that he purchased the property with his own funds and not out of joint
family nucleus that was available.”
While considering the decision along with the facts of the present case, here
P.W.1 and P.W.2 plaintiffs had candid admission that each and every year income
from the ancestral property has been divided between themselves. In the above
circumstances, there is no surplus ancestral income for purchase of the
property. The candid admission of P.Ws.1 and 2 that their father/defendant is a
Headmaster and is a earning member. So, he has separate income for purchasing
the property. Hence the plaintiffs failed to prove that there is surplus joint
family nucleus to purchase property since they failed to prove that there is
surplus income from the joint family property, they failed to discharge their
burden to prove that item No.7 of suit property is joint family property.
16. Per contra, the defendant himself proved that he is having separate
income and he purchased the property. He also relied upon a decision in Fagu
Mahanta and others .vs. Raghaba Chandra Mahanta and others reported in 1999 AIHC
4359, which read thus:
“As already observed, there is no material on record to show that there
was any surplus from the joint family property. It is not disputed that the
property was acquired in the name of Sambhu who had also separate source of
income. Thus, there cannot be any presumption that the property in village
podadiha as described in first lot of Schedule-A/1 was the joint family property
even though Sambhu was the Karta as there is some evidence relating to his
separate source of income. Such property should be treated to be the separate
property of Sambhu.”
While considering all the decisions relied upon by the defendant that the
person who assert properties are joint family properties are liable to prove the
same. Merely because the property stands in the name of Kartha, no presumption
be that property is a joint family property. The person who asserts the
property as a joint family property must prove that property has been purchased
out of the surplus income derived from the joint family property. Then only the
burden is shifted to the person who claim to be a self-acquired property. Here,
as per evidence of P.W.1 and P.W.2, their candid admission is each and every
year income from the ancestral properties has been divided and they are
enjoying their share. There is no surplus income. D.W.1 also deposed due to
the monsoon failure if there is no income from the joint family properties, at
that time he maintained the family out of his personal income. So the father
having separate income from his teacher profession and he purchased the property
was proved by defendant. So item No.7 is a self-acquired property of the
defendant. The plaintiffs have failed to prove that item No.7 is purchased out
the surplus income from the joint family properties. Per contra, the defendant
has proved that he has purchased item 7 out of his own salary.
17. The learned counsel for the defendant would rely upon a decision in
Kothanramappa .vs. Thimmaiah and others reported in 2006 (3) CTC 408 which reads
as follows:
” Property acquired by Manager in his name in course of management of
joint family properties would be treated as joint family properties and onus
lies on Manager to prove that such properties were purchased by him from and out
of his own funds.”
But the above proposition is not relevant because as per decision reported in
2003 10 SCC 310 clearly shows that the person who asserts the property as a
joint family property ought to have proved the same. The burden is upon him
and then only he shifted the person claiming as a separate property.
18. Even the Division Bench of this Court has held that if the Kartha has
separate and independent income, burden of proof is on the person who claims
such acquisition standing in the name of Kartha is joint family property and
that there was sufficient surplus income from the joint family property. So the
single judge judgment is no relevance.
19. As already discussed, the plaintiffs have miserably failed to prove
that item No.7 of the suit property is purchased by the Kartha out of the joint
surplus ancestral nucleus. Per contra, the defendant himself proved that he is a
Teacher by profession and he purchased the property out of his own income. So,
I am of the opinion that item No.7 of the suit suit property is a separate
property of the defendant.
20. The plaintiffs herein has filed S.A.No.102 of 2007 for claiming that
item Nos.8 and 9 is his joint family properties and so they are entitled to
3/4th share in the properties. Both the trial court and the first appellate
court decided that those properties are not belonging to joint family. Moreover,
in the written statement in paragraph 5, it was stated that item No.8 stands in
the name of Dhanam an item No.9 stands in the name of Maheswari. Therefore it is
pleaded that the suit is bad for non-joinder of necessary parties. Three issues
has been raised before the trial court and the trial court comes to the
conclusion that they are necessary parties to the proceeding. But the plaintiffs
have not impleaded them as a party to the proceedings. But they preferred an
appeal.
21. The appeal also dismissed stating that Maheswari and Dhanam were not
impleaded as parties. There is no document to show that the properties are
belonging to these plaintiffs /defendants. The relationship with plaintiffs and
Maheswari and Dhanam has not been proved and hence the first appellate court
has dismissed the appeal. In the above circumstances, there is no document to
show that item Nos.8 and 9 belong to the joint family. The trial court has come
to the correct conclusion that the properties stand in the name of Dhanam and
Maheswari, they are necessary parties and without them the court cannot decide
that the properties are joint family properties. The plaintiffs have failed to
prove that item Nos.8 and 9 are joint family properties. Hence they are not
entitled to any share in the item Nos.8 and 9 properties and the courts below
come to the correct conclusion that the plaintiffs are not entitled to any share
in item No.8 and 9 of the suit properties.
22. As narrated above, the defendant has proved that item No.7 of suit
property is separate property purchased by him out of his earning and he treated
his property as separate property. So the trial Court has correctly held that
item No.7 is separate property of the defendant and dismissed the suit in
respect of item No.7 of suit property. The first appellate Court has committed
an error and come to the conclusion that the item NO.7 of the suit property is
joint family property and hence the judgment and decree of the first appellate
Court is hereby set aside.
23. Both trial Court and first appellate Court have come to the correct
conclusion that item Nos.8 and 9 of suit properties are not belonging to the
joint family of plaintiffs and defendants. Hence, both the Courts dismissed the
suit. Hence, the judgment and decree of the trial Court and first appellate
Court in respect of item Nos.8 and 9 is confirmed.
S.A.No.1066 of 2006
For the foregoing reasons, item No.7 of the suit property is a separate
property of the defendant. Hence the decree and judgement of the first appellate
court is set aside. The decree and judgement of the trial court is restored.
Hence the Second Appeal is allowed. Consequently connected Miscellaneous
Petition is closed. No costs.
S.A.No.102 of 2007
For the foregoing reasons, the trial court has come to the conclusion that
item No.8 and 9 are not joint family properties and hence there is no need to
interfere with the
trial court and first appellate Court judgment and decree. Hence the Second
appeal is dismissed. No costs.
vsn
To
1. The District Judge,
Srivilliputhur,
Virudhunagar District.
2. The Subordinate Judge,
Aruppukkottai.