The defendants 2, 4 and 5 who were non-suited both by the Trial Court as well as by the First Appellate Court have preferred the present second appeal.
2. The first respondent/plaintiff filed the suit for partition of 'A', 'B', 'C', 'D', 'E', 'F' and 'G' Schedule properties into 64 equal shares by metes and bounds and allot 20 such shares to the plaintiff. The plaintiff also prayed for delivery of possession of his divided share and for mesne profits. The second respondent remained absent. As no steps were taken for respondents 3 and 4, the appeal was dismissed as against them.
3. The plaintiff has contended in the plaint that Murugesa Mudaliyar, the paternal grandfather of the plaintiff and his sons Krishnasamy Mudaliyar, Subramania Mudaliyar and Srinivasa Mudaliyar constituted a joint Hindu family. The property described in the 'A' Schedule are the ancestral joint family properties. 'A' Schedule properties are income yielding. There is an annual income of Rs.7000/- from the joint family property. Out of the income from the joint family ancestral nucleus, 'B' Schedule property was purchased by the joint family in the name of the sixth defendant, who is the widow of Murugesa Mudaliyar, 'C' Schedule property in the name of the second defendant, who is the son of Murugesa Mudaliyar, 'D' Schedule property in the name of the third defendant, who is the other son of Murugesa Mudaliyar, 'E' Schedule property in the name of fourth defendant, who is the wife of the said Subramania Mudaliyar and 'F' and 'G' Schedule properties in the name of the fifth defendant, who is the son of Subramania Mudaliyar. The joint family alone has been in possession and enjoyment of the said properties. The defendants 2 to 6 had no independent means to purchase the aforesaid properties. They were never in possession of the said properties in their individual capacities. The eighth defendant, is the purchaser of the joint family property. Therefore, the plaintiff pray for partition of the joint family properties and allot 20/64 shares to the plaintiff.
4. D2 filed written statement. D4 and D5 adopted the same. It is their contention in the written statement that Murugesa Mudaliyar and his sons were the members of the joint Hindu family and the said family had properties. The joint Hindu family got divided in the year 1959 and the joint Hindu family properties were also divided by the father amongst his three sons under a koorchit dated 09.04.1959. It was agreed by the sons that they should enjoy the properties that fell to their respective shares absolutely after the demise of their father. The said division was accepted by the sons by subscribing their respective signature to the said document. Each brother is enjoying his respective shares allotted under the koorchit exactly and absolutely. Each brother acquired assets independently out of their own funds. The properties acquired by them after the koorchit were treated as their separate and self acquired properties. Murugesa Mudaliyar died in March 1976. The patta remained in the name of their father till his death. The first defendant, constructed a house at Madras. The second defendant purchased lands in his name and in the name of his wife and son out of his earnings and the funds provided by his wife and his father-in-law. The third defendant also purchased properties in his name out of his own earnings. The defendants 2 and 3 augmented their respective income by doing warram cultivation also. The sixth defendant similarly purchased lands in her own name with her funds. The defendants 2, 4 and 5 deny that the properties detailed in 'B' to 'F' Schedules were purchased out of the joint family ancestral nucleus. The plaintiff has supressed the acquisition of the house property at Madras by the first defendant. The defendants 2, 4 and 5 have been in exclusive possession of the properties purchased by them with their own earnings. After the demise of Pattammal during the pendency of the suit, her properties alone have to be divided. In other respects, the defendants pray for dismissal of the suit.
5. On the side of the plaintiff the plaintiff was examined as P.W.1 and a witness hailing from Chennai was examined as P.W.2 and as many as 12 documents were marked. On the side of the defendants the second defendant was examined as D.W.1 and the fifth defendant was examined as D.W.2 and as many as 27 documents were marked.
6. The Trial Court having adverted to the evidence on record returned a finding that Ex.B2 koorchit was not acted upon and that there was no division of the family properties as per the terms of Ex.B2. The compromise memorandum Ex.B1 signed by both the parties recites that, the partition deed should be executed and registered to give effect to the compromise clinched by both the parties. As no partition deed was executed and registered as contemplated under Ex.B1, the Trial Court observed that Ex.B1 also did not come into effect. On a careful perusal of the evidence on record, the Trial Court returned a finding that there was no proof to show that D2, D4 and D5 had individual earnings to purchase the properties in their names. The Trial Court having held that the joint family had no other income except the agricultural income which yielded surplus of income. The properties in the individual names of the joint family members were purchased only out of the said surplus of the joint family. Having thus found the Trial Court chose to decree the suit. Considering the fact that the sixth defendant had died during the pendency of the suit, the Trial Court chose to divide the suit properties and allot one-third share to the plaintiff.
7. In the First Appeal preferred by the defendants 2, 4 and 5, the First Appellate Court largely concurred with the decision of the Trial Court and upheld the verdict of the Trial Court.
8. During the course of admission of the present second appeal the following substantial questions of law were formulated by this Court:
1. Whether the decisions of the Courts below that the suit properties are joint family properties, in the absence of any evidence, regarding the joint nucleus of the family are correct and sustainable in law.
2. Whether the findings of the Courts below regarding the koorchit in the family which records the earlier oral partition of the family is correct.
3. In any event whether the interpretation by the Courts below of the koorchit is correct and sustainable.
4. Whether the findings of the Courts below that the family is joint and the properties are joint family properties in the absence of legal and acceptable evidence regarding joint system and properties are correct.
9. The learned counsel appearing for the appellants/D2, D4 and D5 would vehemently submit that the koorchit Ex.B2, would go to show that Murugesa Mudaliyar got 'A' Schedule property under the partition that took place in the family. As Murugesa Mudaliyar got the said property under the partition, those properties were only the individual properties of Murugesa Mudaliyar. Referring to the koorchit Ex.B2, the learned counsel appearing for the defendants 2, 4 and 5 would submit that Murugesa Mudaliyar had dealt with the 'A' Schedule property as his individual properties. It is her further submission that when there is no ancestral property in the joint Hindu family, the acquisition made by D2, D4 and D5 will have to be held as their individual acquisitions. The plaintiff who has filed the suit for partition has not let in evidence to establish that there was sufficient earnings from out of the 'A' Schedule property and that there was also a surplus in the earnings of the joint family which was used by the members of the joint family for acquisition of property in their individual names. There was no reason for the family members to purchase the properties in their individual name using the surplus of the joint family nucleus when Murugesa Mudaliyar was very much alive. The reasons assigned by the plaintiff for acquisition of the properties in the names of D2, D4 and D5 are found to be quite artificial. The third defendant has joined hands with the plaintiff and as a result of which he remained exparte through out the proceedings. The very fact that the plaintiff chose to clinch a compromise during the pendency of the suit under Ex.B1 to divide only the 'A' Schedule property would go to show that the properties in the individual names do not form part of the joint family properties. Both the Courts below failed to advert to the pattas issued in the name of D2 to D5 in their individual names. Referring to the evidence of P.W.1 she would submit that P.W.1 has categorically admitted that Pattammal, the grand mother of the plaintiff, had milk-vending business. Pattammal who had got independent source of income had purchased properties in her individual name. Therefore she would submit that the plaintiff who failed to establish that there was an ancestral nucleus which provided funds for purchasing properties in the individual names should be non-suited.
10. The learned counsel appearing for the first respondent/plaintiff would submit that Ex.B2 koorchit was not proved by the defendants 2, 4 and 5 who set up a claim that 'A' Schedule properties were divided way back in the year 1959 itself. Even assuming for the sake of arguments Ex.B2 koorchit was executed by the family members it would not have come into effect till the death of Murugesa Mudaliyar in the year 1976. Referring to the evidence of D.W.1 the learned counsel appearing for the plaintiff would submit that he has categorically admitted that the suit 'A' Schedule property also generated part of the funds to purchase the properties in his name and also in the name of his wife and his son. Inasmuch as the joint family nucleus which provided funds has been established by the plaintiff, it is the burden of the defendants 2, 4 and 5 to establish that the acquisition was made in their individual names, only out of their independent source of income. Referring to the evidence of D.W.1, he would submit that there was virtually no evidence to show that he got any income from warram cultivation. The person who inducted the second defendant for warram cultivation was not even referred to by D.W.2 in his evidence. He would also submit that there was a rider in Ex.B1 to the effect that a separate partition deed should be executed and registered failing which the memorandum of compromise Ex.B1 would lose its effect. As it is the admitted of case of both the parties that no partition deed was executed and registered in terms of Ex.B1, Ex.B1 lost its effect. Referring to the contents of Ex.B1 he would submit that D2, D4 and D5 would not have given consent for partition of A Schedule property, if at all there had been a division of the property way back in the year 1959 itself. Therefore, he would submit that the plaintiff who has established that the joint family had ancestral property which generated income is entitled to partition of the properties purchased in the individual names of the joint family members from out of the income derived from the joint family nucleus. He defended the concurrent findings of the Courts below.
11. The plaintiff would contend that 'A' Schedule property is the ancestral property of Krishnasamy Mudaliyar, Subramania Mudaliyar and Srinivasa Mudaliyar which was enjoyed by the Hindu joint family consisting of Murugesa Mudaliyar, Krishnasamy Mudaliyar, Subramania Mudaliyar and Srinivasa Mudaliyar. The defendants 2, 4 and 5 have categorically admitted in their written statement that suit 'A' Schedule property is the joint family property of Krishnasamy Mudaliyar, Subramania Mudaliyar and Srinivasa Mudaliyar. Even during the course of evidence D.W.1, the second defendant herein has categorically admitted that the suit 'A' Schedule property was a joint family property of the family. In view of the above admission made both in the pleadings and also in the evidence, I find that the submission made by the learned counsel appearing for the defendants 2, 4 and 5 that the suit 'A' Schedule property is not the Hindu joint family of Krishnasamy Mudaliyar, Subramania Mudaliyar and Srinivasa Mudaliyar is found not sustainable.
12. On a careful perusal of Ex.B2 the koorchit, it is found that Murugesa Mudaliyar has stated that he got the 'A' Schedule property under the partition that took place in his family in the year 1937 and also under the partition that took place between himself and his brother in the year 1940. As the defendants have categorically admitted that the 'A' Schedule was enjoyed as a joint family property we will have to construe that Murugesa Mudaliyar got the 'A' Schedule property which was the ancestral property of his family under the partition that took place in the family. Therefore, the submission made by the learned counsel appearing for the defendants 2, 4 and 5 quite against the pleadings of the defendants and the evidence on record that the suit 'A' Schedule is not the joint family property of the family stands rejected.
13. Of course, the plaintiff disputes the execution of Ex.B2 by Murugesa Mudaliyar and his three sons. Ex.B2 is found to be a koorchit executed by Murugesa Mudaliyar and signed by Murugesa Mudaliyar and his three sons in token of acceptance of the terms of Ex.B2. It is true that the defendants have not examined any of the witnessess to Ex.B2 or any independent witness, who had the knowledge about the execution of Ex.B2 to establish the same. But it is found that Ex.B2 was executed in the year 1959. As per
Section 90 of the Indian Evidence Act, 1872, the Court can raise a presumption as to the execution of a document of 30 years old. It is found that the plaintiff who was just 7 years old at the time when Ex.B2 was executed has come forward with a denial of the execution Ex.B2. The Courts below have not raised any presumption as to the execution of Ex.B2, which is a 30 years old document. Rising presumption arisen under
Section 90 of the Indian Evidence Act, 1872 as to the execution of the document Ex.B2, I find that Murugesa Mudaliyar, Krishnasamy Mudaliyar, Subramania Mudaliyar and Srinivasa Mudaliyar had exectued Ex.B2.
14. Now the Court will have to find whether there was any partition of the joint family property detailed under A Schedule in the year 1959 itself when Ex.B2 was executed by the family members. On a careful perusal of the recitals found under Ex.B2 it is found that Murugesa Mudaliyar has categorically held that the suit 'A' Schedule properties as divided under Ex.B2 should be enjoyed absolutely by Krishnasamy Mudaliyar, Subramania Mudaliyar and Srinivasa Mudaliyar only after his demise. The fact remains that Murugesa Mudaliyar passed away in the year 1976. Nothing has been produced to establish that against the spirit of Ex.B2 Krishnasamy Mudaliyar, Subramania Mudaliyar and Srinivasa Mudaliyar started enjoying the properties as divided under Ex.B2. Of course there is an admission by the plaintiff that the second defendant is residing in one of the family house and the third defendant is residing in the other family house located opposite to the house in possession of the second defendant. But there is no evidence to show that D2, D3 have been residing in those houses right from the year 1959.
15. As there is a legal presumption as to the execution of Ex.B2 and the said presumption was not rebutted by the plaintiff, I find that Ex.B2 is a true and genuine koorchit executed amongst the family members. But as per the recital found in the said document, 'A' Schedule properties detailed in the plaint were to be enjoyed absolutely by the three sons of Murugesa Mudaliyar only after his demise. The second defendant of course has deposed that he has been enjoying his portion of the property as divided under Ex.B2 right from the year 1959. But there is no document to support his contention. At any rate, the parties would have come into separate possession of the suit 'A' Schedule property after the demise of Murugesa Mudaliyar in the year 1976.
16. The plaintiff would contend that the suit A Schedule property generated sufficient surplus and the same was used by D2 to D5 to purchase properties in their individual names. D2, D4 and D5 would stoutly deny the contention of the plaintiff that the joint family property generated sufficient funds.
17. D.W.1 has categorically admitted that the properties purchased in his name, and also in the name of his wife and son have been acquired not only out of the funds generated by him out of warram holdings but also from the income generated from the portion 'A' Schedule property which fell to his share. The fact remains that the major portions of the 'A' Schedule properties are wet lands. No wonder, it would have generated sufficient funds. The fact that the joint family property has generated funds was admitted by D.W.1. Inasmuch as the plaintiffs have established through the admission of D.W.1 that the joint family property generated funds, the burden shifts to D2 to D5 to establish that they had independent source of income to purchase the properties in their individual names, as rightly pointed out by the learned counsel appearing for the plaintiff. The defendants have not produced any evidence to show that they generated funds out of warram holdings. Even the persons from whom they had taken the properties on warram basis were not referred to in their evidence. Therefore, it is very difficult to believe the stand of the defendants that sufficient funds were generated out of warram holdings to purchase properties in their individual names.
18. The learned counsel appearing for D2, D4 and D5 refers to a decision of this Court in Thangayal and Others Versus Thangammal and Another (2008) 3 MLJ 1390 wherein the decision of this Court in Amirthalingam V. Uthayathamma and 15 others, (1999) 2 LW 713 was quoted with approval as follows:
"Mere existence of joint family nucleus alone is not enough; it must be proved that there was surplus income for purchase of other properties and the same must be in the hands of the Managing Member of the family".
19. In the instant case not only the joint family nucleus but the surplus fund generated out of the joint family nucleus has been categorically admitted by D.W.1.
20. This Court in Chenni & Others Versus Chellammal & Others CDJ 2004 MHC 1704 has held that there may be presumption that there was a joint family but no presumption would arise that the property is that of the joint family.
21. In the instant case not only the status of the joint family but the nature of the property in the hands of the joint family also was admitted by D.W.1 during the course of evidence.
22. The Supreme Court in D.S.Lakshmaiah and another Vs. L.Balasubramanyam and another AIR 2003 SC 3800 has held that where it is established that the family possessed some joint family 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.
23. In the instant case the joint family nucleus and the surplus fund generated were established by the plaintiff with the admission of the second defendant. The burden which rests on the defendants under such circumstances to establish that the self-acquistion made were out of the individual funds was not established by the defendants in this case.
24. It is held therefore, that 'A' Schedule property is the joint family property of Murugesa Mudaliyar, Krishnasamy Mudaliyar, Subramania Mudaliyar and Srinivasa Mudaliyar and it generated sufficient funds which were largely capitalized for the purpose of purchasing property in the names of the defendants up to the year 1976 when Krishnasamy Mudaliyar, Subramania Mudaliyar and Srinivasa Mudaliyar came to divide and possess their share of property as per the terms of the koorchit Ex.B2 but the acquisition made thereafter by the defendants would not form part of the Hindu joint family consisting of Krishnasamy Mudaliyar, Subramania Mudaliyar and Srinivasa Mudaliyar as they have already divided as per the terms of Ex.B2 in the year 1976 immediately on the demise of Murugesa Mudaliyar. In short the properties acquired by D2, D4 and D5 prior to the year 1976 are held as the joint family properties and the properties acquired by them subsequent to 1976 are held as the properties purchased out of their individual earnings. As D.W.3 Srineevasa Mudaliyar has not contested the suit throughout, the contention of the plaintiff that D Schedule properties standing in the name of D3 were acquired out of the surplus of the joint family property stands accepted.
25. It is true that there was a serious attempt to settle the dispute between the parties under Ex.B1. The 'A' Schedule property alone was to be divided between Sankaran representing Krishnasamy Mudaliyar's line, Subramania Mudaliyar and Srinivasa Mudaliyar. But there is a rider found under Ex.B1 that the settlement contemplated thereunder would come into effect only when a separate partition deed was executed and registered. Admittedly no such separate partition deed was executed and registered between the parties. Therefore, Ex.B1 had not come into effect. During the pendency of the suit, parties would come forward to settle their dispute by giving up even their lawful right, in order to purchase peace resolving the dispute amicably. Therefore, concession given by one of the parties and the benefit acrued to the other party under such settlement proposed during the pendency of the suit cannot be relied upon by the parties to make a point that there was some admission by one of the parties to such a compromise.
26. As 'A' Schedule properties were already partitioned the plaintiffs are not entitled to seek for a partition afresh in the 'A' Schedule property. Even if the plaintiff had not taken possession as per the terms of Ex.B2 he is entitled to take possession of his share of property in 'A' Schedule as per the terms of Ex.B2. As far as 'B' Schedule property is concerned, there is no dispute to the fact that the same stands in the name of deceased Pattammal, the sixth defendant herein. The plaintiff, second and third defendant agreed to share the property of Pattammal equally. Coming to the 'D' Schedule property it is already held that 'D' Schedule properties were purchased only out of the surplus of the joint family earnings. Therefore, the plaintiff, D2 and D3 are equally entitled to a share in the said properties.
27. The first item of 'C' Schedule property was purchased by the second defendant under Ex.B10 dated 10.08.1983. The second, third, fifth and sixth items of 'C' Schedule properties were purchased by the second defendant under Ex.B9 dated 01.09.1970. The fourth item of 'C' Schedule property was purchased by the second defendant under Ex.B8 dated 05.09.1966.
28. It is found that except item one in 'C' Schedule properties, the other items of properties had been purchased by the second defendant prior to 1976. It is held that the plaintiff is not entitled to any share in the first item under 'C' Schedule properties but he is entitled to one-third share in other items of 'C' Schedule property as they have been purchased long prior to the partition in the joint family. There are three items in the 'E' Schedule properties. The first item and the fourth item under 'E' Schedule properties were purchased in the name of the fourth defendant under Ex.B15 dated 15.05.1960. The second item and third items were purchased by the fourth defendant under Ex.B16 dated 04.09.1978. As the first item and the fourth item under 'E' Schedule properties had been purchased by the fourth defendant prior to the partition in the joint family, the plaintiff is entitled to one-third share in the first and fourth item in the 'E' Schedule properties. But he is not entitled to any share in the second and third items of 'E' Schedule properties as those properties were purchased by the fourth defendant after the partition was effected in the joint family.
29. 'F' Schedule properties had been purchased by D5 under Ex.B21 dated 25.11.1982 and items 1 to 7 of 'G' Schedule properties had been purchased by the fifth defendant under Ex.B20 dated 22.11.1982. As 'F' Schedule and 'G' Schedule properties in the name of fifth defendant had been purchased subsequent to the partition in the joint family, the plaintiff is not entitled to any share in 'F' and 'G' Schedule properties.
30. The Courts below without adverting to the year in which the actual division of the joint family properties was effected simply concluded ignoring Ex.B2 that all the properties were joint family properties. The Courts below have wrongly concluded that the koorchit Ex.B2 was not true and valid. Though Ex.B2 had not come into effect in the year 1959, it had come into effect in the year 1976 on the demise of Murugesa Mudaliyar. Therefore the interpretation made by the Courts below with regard to the koorchit Ex.B2 is not sustainable.
31. In view of the above findings it is held that the plaintiff is entitled to one-third share in the 'A' Schedule property as per the terms of Ex.B2, one-third share in 'B' Schedule properties, items 2 to 6 of 'C' Schedule properties, entire 'D' Scheduled properties and item 1 and item 4 of 'E' Schedule properties and that he is not entitled to any share in the first item of 'C' Schedule property, items 2 and 3 of 'E' Schedule properties and the entire 'F' Schedule and 'G' Schedule properties. It is made clear that the plaintiff, second defendant and the third defendant are each entitled to one-third share in 'D' Schedule property. Preliminary decree is passed with respect there to and consequently, the suit is decreed in part and the Judgments of the Court below are modified to that extent. The mesne profits sought for by the plaintiff would be decided in a separate petition filed by the plaintiff under Order 20 Rule 12. Considering the relationship of the parties and the nature of suit each party is directed to bare his costs. Consequently, the connected miscellaneous petitions are closed.
ps To
1.The II Additional District Judge, Salem.
2.The learned Sub Judge, Sankagiri