THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN Rev.A.No.34 of 2017 in SA.No.315 of 2011 and Cross Objection No.54 of 2014 and WP.No.39462 of 2016 and WMP.Nos.33746 and 33747 of 2016 Mayilasalam Petitioner Vs
1. Jayalkshmi @ Chinnammal
2. Saraswathi
3. Boomadevi Respondents Prayer:- This Review application is filed to review the judgement and decree dated 17.12.2014 in SA.No.315 of 2011 and Cross Objection No.54 of 2014 on the file of this court.
For Petitioner : Mrs.Hema Sampath, SC For Respondents : Mr.L.Chandrakumar ORDER This Review Application has been filed, seeking to review the judgement and decree, dated 17.12.2014, passed in SA.No.315 of 2011 and Cross Objection No.54 of 2014.
2. The Petitioner in cross objection is the Review Petitioner herein.
The Respondents in the cross objection are his sisters. They had filed SA.No.315 of 2011.
3. The 1st Appellant in SA.No.315 of 2011, Jayalakshmi @ Chinnammal, was the Plaintiff in OS.No.90 of 2002, on the file of the District Munsif cum Judicial Magistrate, Vanoor. She had filed the suit seeking preliminary decree for partition of the suit properties into four equal shares and for allotment of one such share to her. In the Schedule of the properties, there were seven items of properties. By judgement and decree dated 26.8.2009, the District Munsif Cum Judicial Magistrate, Vanoor, had partly decreed the suit and had held that the Plaintiff was entitled to an undivided 1/8th share in items (1) and (7) and further granted an undivided 1/4th share in item (4) of the suit properties and dismissed the suit as against items (2), (3), (5) and (6) of the suit properties. As against the said judgement and decree, the 3rd Defendant Mayilasalam had filed AS.No.12 of 2010 before the Principal Sub Court, Dindivanam. By judgement, dated 29.10.2010, the learned Sub Judge had dismissed the suit, with respect to grant of undivided 1/8th share in items (1)/ and (7) of the suit properties. However, the appeal was dismissed with respect to the challenge to the grant of undivided 1/4th share to the Plaintiff in item (4) of the suit property. The judgement and decree of the Trial Court declining any share to the Plaintiff in items (2), (3), (5) and (6) of the suit properties was confirmed. As against the said judgement of the first appellate court, the Plaintiff, Jayalakshmi @ Chinnammal and the 1st and 2nd Defendants, Saraswathi and Boomadevi, filed SA.No.315 of 2011 and the 3rd Defendant Mayilasalam filed Cross Objection 54 of 2014.
4. The arguments in the second appeal were focussed with respect to item (4) of the suit properties. In the second appeal, this court, by judgement dated 17.12.2014, had allowed the plea of the Appellants and decreed the suit as held by the Trial Court in respect of items (1), (4) and (7). It had been stated that the Appellants were entitled to undivided 1/8th share in the items (1) and (7) and undivided 1/4th share in item (4) of the plaint Schedule property and the cross objection with respect to item (4) was dismissed. As against the said judgement, the Petitioner in Cross Objection No.54 of 2014 had filed SLP(C) Nos.17149-17150 of 2015 before the Honourable Supreme Court and by judgement dated 9.7.2015, the Honourable Supreme Court had held as follows:-
“Liberty is reserved to the Petitioner to file a review petition only in so far as the schedule item no.4 regarding quantum of assign of share in respect of property to the parties to the suit is concerned.”
Consequently, this Review Application has been filed.
5. The Plaintiff in the suit was Jayalakshmi @ Chinnammal. The 1st Defendant was Saraswathi and the 2nd Defendant was Boomadevi and the 3rd Defendant was Mayilasalam. They are sisters and brother. As stated above, the suit was filed, seeking partition and separate possession of 1/4th share in seven items of the suit properties. Since at this stage the facts cannot be reopened, the findings of the Trial Court in the suit and first appellate court in the appeal alone are mentioned .
6. It was held that items (2), (3), (5) and (6) are exclusive properties of the 3rd Defendant, Mayilasalam and consequently, the other parties to the suit were denied any share in the suit properties. This left items (1), (4) and (7) for consideration. It was held that items (1) and (7) were joint family properties and consequently, during the period when the father of the parties was alive, he and Mayilasalam formed a coparcenery and they were both entitled to an undivided one half share. Subsequent to the death of the father, his one half share further devolved among his legal representatives, who are the parties herein and consequently, the three sisters were held to be entitled to an undivided 1/8th share each and Mayilasalam was held to be entitled to an undivided 5/8th share in the items (1) and (7) of the suit properties.
7. With respect to item (4), it was held that it was self acquired property of the father of the parties and consequently, after his death, as legal representatives, his three daughters and one son were held to be entitled to an undivided 1/4th share. This item (4) is now the bone of contention. According to the review petitioner, this should also have been considered as an ancestral property and therefore, the sisters should be held to be entitled to only 1/8th share each. Grant of 1/4th share to them has been challenged up to the Honourable Supreme Court and the Honourable Supreme Court had, as aforesaid, directed filing of a Review Application and further directed this court to examine the assignment of the shares in respect of the said property.
8. This court heard Mrs.Hema Sampath, learned senior counsel for the review petitioner and Mr.L.Chandrakumar, the learned counsel for the Respondents.
9. In the mean while, WP.No.39462 of 2016 had been filed by the three sisters against the Inspector General of Registration and other Revenue Authorities for the following reliefs:-
“”To issue of Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the 3rd Respondent in his proceedings in AthiMu.No.Illai/2016, dated 01.11.2016 and quash the same as illegal and consequently, direct the 3rd Defendant to register the sale agreement dated 31.10.2016 and subsequent sale deed of the same properties comprised in New survey Nos.79/1, 155/9, 127/3 (Old Survey Nos.42/7, 113/6, 7 and 11/11), Kottakuppam Village, Vanoor Taluk, in the light of the order passed by this court in SA.No.315 of 2011, dated 17.12.2014.”
10. Since the property involved was item (4) of the suit properties and since the title to the said property would be decided in course of the Review Application, the said Writ Petition has also been posted before this court for consideration.
11. The learned senior counsel for the Review Petitioner placed reliance on 1989 2 LW 227 (Ponnuswamy Vs. Meenakshi Ammal and others) wherein the Division Bench of this court had held as follows:-
“8. It is urged on behalf of the appellant that merely because the sale deed, in respect of the site on which the house was built, stands in the name of the father Kuppuswami Gounder it is not enough to prove that it was his self-acquired property and that it did not form part of the joint family property. In this connection, learned counsel for the appellant would urge, that when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions, then a presumption arises that the acquisitions standing in the name of the persons who were in the management of the family properties, are family acquisition. In support of this position, he relies upon a decision of the Supreme Court in B.N. Pramanik (1972 (II) SCWR 406).
9. 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 property 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. Relying on this principle, learned counsel for the respondents urges that in order to give rise to the presumption, the nucleus must be such that with its help the property claimed to be joint could have been acquired. In support of the said contention, he relies upon the ruling of the Supreme Court in Srinivas v. Narayan (AIR 1954 SC 379), which lays down the following principle.
“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”.
He also relies upon the decision of this Court in Srinivasan v. Sundaramurthi (1972 (I) MLJ 141) and Ranganayaki Ammal v. Srinivasan (1978 I MLJ 56) in support of his contention that if the property stands in the name of a co-parcener of a joint family, mere proof of the existence of the joint family owning some joint family property does not give rise to any presumption and that it must be established that there was sufficient nucleus of the joint family for purchasing the property which stands in the name of the co-parcener. In so far the principles laid down in all these cases are concerned there cannot be any difference of opinion.
10. In order to give rise to the presumption, the nucleus must be such that with its help the property claimed to be joint could have been acquired. Whether the evidence adduced by a party is 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 extent of the nucleus. What is to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made. Alternatively, this may be shown from the nature and relative value of the nucleus itself. It is to be noted that this question of presumption differs from case to case and there cannot be a principle which will apply to all the cases. Even though the initial burden is on the plaintiff in case to prove that the house property, which is the subject matter of the present appeal, was purchased out of the joint family nucleus, when there is intrinsic evidence in the case to show that there was sufficient income from the admitted joint family properties, an inference can be drawn that the said property was purchased out of the joint family funds. Peculiarly in this case, the respondents have not pleaded that the late Kuppuswami Gounder had any other source of income excepting the income from the joint family lands. Learned Counsel for the respondents relied upon a passage from Mulla's Hindu-Fifteenth Edition at pages 304 and 305. The very - same author at page 306 observes as follows:— “Where, however, the existence of the nucleus is shown and no other source of income is disclosed, the presumption may be made that the nucleus was sufficient to enable the property to be acquired. Such being the presumption, if any member of the family claims any portion of the property, the burden lies upon him in any such case to show that it was acquired by him in circumstances which would constitute it his separate property”
The said view was based upon the principles laid down by the Supreme Court. Therefore, it is clear on the facts of the present case that there is absolutely no evidence to show that the late Kuppuswami Gounder had any other source of income excepting the income from the joint family properties, namely agricultural lands. The description of property and the evidence regarding the income show that there was sufficient income from the lands and it was possible for the late Kuppuswami Gounder to purchase the house property out of the joint family income derived from the lands. In the absence of an allegation to the effect that he had other separate source of income, it cannot be presumed that the property was acquired out of his separate funds.”
12. It must be kept in mind that the said judgement was delivered in the first appeal where there was a possibility of reviewing the entire evidence on record. In the second appeal, only a point of law has to be decided.
13. According to the learned senior counsel, when items (1) and (7) were decided to be joint family properties, no reason had been given to declare that item (4) alone is a self acquired property of the father of the parties.
However, I disagree. There is evidence.
14. Ex.A1 is the sale deed, in which item (4) was purchased. This court had called upon the Trial Court to forward a copy of Ex.A1 to determine the issue whether the property was actually purchased out of the sources from the joint family nucleus or by the father of the parties from his own sources.
15. The father of the parties herein was Natesa Gounder. In Ex.A1, the recitals are as follows:-
“Document No.1610 of 1970 fpuak; U:gh 7000. 1970k; tUlk; $^iy khjk; 7k; njjp jpz;otdk; jhYf;fh nfhl;lf;Fg;gk; kJuh. rpd;dKjypahh; rhto.
Fg;g[rhkp ft[z;lh; Fkhuh; kfd;. 464 bek;gh; F/enlr ft[zlh mth;fSf;F g[Jit uh$;ak; f!;gh g[Jit 12k; bek;gh; ,yyj;jpy trpf;Fk; Kfk;kJ ahrpd; rha[g[ kiz jf$Ptdk; Mizgo / vGjpf;bfhLj;j fpiua rhrdk; ehsJ njjpapy; vd; FLk;gr;bryt[f;F ehd; j'fsplk; buhffk; bgw;Wf;bfhz;l U:gh 2000 gfpw njjpapy; thzh; jpUthsh; cjtpahsh; mthfs;
Kd;dpiyapy; ehd; j';fsplk; buhffk; bgwnghfpw U:gha; 5000 Mf U:gh 7000f;F fH fz;l brhji j j';fSf;Fg; ehsJ njjpapy; nky;fz;l buhffk; bgw;Wf;bfhs;Sfpwgoahy; ehsJ njjpap; fH ;fz;l brhji ja[k; j';fs trk; xg;g[bfhLj;J tpl;nld;/// fH ;fz;l brhji j jh';fns rh;t Rje;jpukha; fpiua thrfg;go jz;L mDgtpj;Jbfhs;tPuhftk; fHfz;l brhj;jpy vt;tpj fyDk; fpilahJ/ mg;go ,Ue;jhy; jd; brhej brytpy jh;j;Jf; bfhLf;f ehd; rkkjpj;J vGjpf;bfhLj;j fpiua rhrdk;/ brhj;Jtpguk;//////////////@
16. It is clearly seen that Natesa Gounder had paid the entire sale consideration. The purchaser had received the sale consideration from Natesa Gounder alone. There is no reference that the consideration had been passed from the joint family nucleus. With respect to items (1) and (7), documents of title have not been produced. With respect to item (4) document of title has been produced. Under Section 91 of the Indian Evidence Act, the document speaks for itself and no amount of oral evidence can be let in as against the said document.
17. Even in the judgement cited by the learned senior counsel, it has been stated that mere proof of the existence of the joint family owning some joint family property does not give rise to any presumption and that it must be established that there was sufficient nucleus of the joint family for purchasing the property which stands in the name of the co-parcener and Whether the evidence adduced by a party is 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 extent of the nucleus. Even though the pleadings are not wholesome, the Review Petitioner as Defendant in a suit for partition had every right to put forth his case in the written statement to establish that even item (4), in spite of recitals in Ex.A1, had been purchased from and out of the joint family nucleus. He had failed to discharge his burden. There cannot be a presumption when document of title, Ex.A1 is produced for consideration of the court.
18. It is clear from Ex.A1 that the property, namely, item (4) is the self acquired property of Natesa Gounder. Once Natesa Gounder is said to have died intestate, the property devolves on to all his legal representatives, who are the Plaintiff and the Defendants. Consequently, each one of them is entitled to 1/4th undivided share. I find no infirmity in the judgement under review and this court had only taken an additional step under Section 103 of CPC by calling for Ex.A1 and examining the recitals therein.
19. The scope of Review Application is also very limited and this court cannot travel beyond the findings available on evidence. Both the courts, who had the benefit of examining the issue, have held that item (4) is the self acquired property of the father of the parties and incidentally, Ex.A1 also establishes the same. I am unable to convince myself to accede to the arguments advanced by the learned senior counsel and accordingly, this Review Application is dismissed.
20. With respect to the Writ Petition, it is seen that the Writ Petition has been filed against the 3rd Defendant to register the agreement of sale dated 31.10.2016 and subsequent sale deeds of the same properties in Vanoor Taluk. These documents were presented for registration pursuant to the judgement of this court in SA.No.315 of 2011 dated 17.12.2014. The registration was objected by Mayilasalam, the Review Petitioner. Since the Review Petition has been dismissed, Rule Nisi has to be issued to the 3rd Respondent as prayed for, subject to payment of stamp duty, registration and other statutory charges.
21. There was also an argument advanced in the Review Application with respect to impleading necessary parties, particularly the purchaser. However, this is of no consequence since the Review Application is dismissed.
22. In the result, this Review Application is dismissed and this Writ Petition is allowed. No costs.
Index:Yes/No Web:Yes/No Srcm 08.11.2017 Pre-Delivery Order in Rev.A.No.34 of 2017 in SA.No.315 of 2011 and Cross Objection No.54 of 2014 and WP.No.39462 of 2016 and WMP.Nos.33746 and 33747 of 2016