The Second Appeal is filed by the appellant-plaintiff against the judgment and decree dated 27.3.2002 in A.S.No.84 of 2001 on the file of the Principal District Court, Perambalur, reversing the judgment and decree dated 27.3.2001 in O.S.No.455 of 1988 on the file of the District Munsif Court, Perambalur.
2. The averments in the plaint are as follows:
The plaintiff is the absolute owner of the suit properties. His father Ramaswamy Udayar purchased the same on 14.6.1941 under a registered Sale deed. From the date of purchase, he was in possession. Ramaswamy Udayar died intestate, leaving behind the plaintiff as his sole heir. He succeeded the properties. The patta stands in the name of Ramaswamy Udayar. The Patta is No.341. He paid kist. Ramaswamy Udayar got two elder brothers, namely Karuppu Udayar and Annamalai Udayar. The defendant is the son of the said Annamalai Udayar. Neither Karuppu Udayar, nor Annamalai Udayar is the heir or having any right or title or interest over the possession of the suit properties. In the survey, patta was also given in the name of the plaintiff. But the defendant claims patta for some items of the suit properties and claims title and started to give disturbance to the plaintiff's possession and enjoyment of the suit properties. So, the plaintiff was constrained to issue notice through his counsel to the defendant. He received reply from the defendant with frivolous allegations. Hence, the plaintiff was constrained to file the suit for declaration of title in respect of the suit properties and the consequential relief of injunction and also prayed for a decree.
3. The gist and essence of the written statement filed by the defendant are as follows:
The issuance of patta in the name of the plaintiff's father and the patta book are irrelevant and the same are not the exclusive proof of the plaintiff's father as the owner of the properties. The payment of kist by the plaintiff and his father is not with regard to the entirety of the suit properties. The plaintiff's father Ramaswamy Udayar had two brothers, by name Karuppu Udayar and Annamalai Udayar. The properties have been purchased in the name of Ramaswamy Udayar, who made use of the funds provided by the defendant's father and also the plaintiff's father, out of the joint family funds. At the time of purchase, the plaintiff's father has taken the Sale Deed in his name, although he was instructed to take the Sale Deed in the name of his brothers as well. After the purchase on 14.6.1941, the properties covered under the Sale Deed were treated only as joint family properties. In an oral partition which has taken place in the "Tharuna" year in the month of Chitthirai, item Nos.1 to 3 were allotted to the defendant's father. The rest of the items were allotted to the share of the plaintiff's father and other brother Karuppu Udayar was allotted with other properties in the other localities. In the above said oral partition, the properties at Ariyalur Taluk were also divided. After the oral partition, the defendant's father has all along been in peaceful possession and enjoyment of items 1 to 3 of the properties as the absolute owner. The plaintiff's father has been in possession and enjoyment of items 4 to 6 of the properties. Patta No.341 was given in the name of the defendant's father exclusively. The defendant has also paid kist for the very same patta No.341. Neither the defendant nor his father had any other property, except item Nos.1 to 3 of the properties to pay the kist for the same. The plaintiff, taking advantage of the fact that the Sale Deed stands in the name of his father and moreover, the patta has been given in his name, has come forward with the suit with a view to grab the properties of the defendant, i.e. items 1 to 3. In the UDR Survey in respect of item Nos.1 to 3, patta has been issued in the name of the defendant. It was re-numbered as S.F.No.129/8, 129/11, 129/12 in UDR Survey. Item Nos.4 to 6 have been re-numbered as S.No.129/14,15,16 and 17. In accordance with the said division, demarcating ridge between the plaintiff's property and the defendant's property, has already been laid soon after the oral partition, according to which, UDR patta has been issued. Since the plaintiff is not in possession of the properties, he is not entitled for declaration of title and injunction. There is no cause of action for the suit. Subramaniam, son of Karuppu Udayar is necessary party. The defendant prayed for dismissal of the suit.
4. The learned District Munsif, Perambalur, after hearing the arguments of both the counsel and on a perusal of the averments in the plaint and the written statement, had framed four issues and considering the oral evidence of P.W.1, D.W.1 and D.W.2, Exs.A-1 to A-55, Exs.B-1 to B-30 and Exs.C-1 and C-2, decreed the suit as prayed for. Against that, the defendant preferred appeal in A.S.No.84 of 2001 on the file of the Principal District Court, Perambalur. The learned District Judge, after hearing the arguments of both the counsel, had framed two points for determination, and set aside the judgment and decree passed by the trial Court and allowed the appeal, stating that the plaintiff has not proved his title to the properties and dismissed the suit. Against that, the present Second Appeal has been preferred by the plaintiff.
5. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration:
"(i) Whether the lower appellate Court is right in accepting U.D.R. patta and the kist receipts and on that basis, to reject the claim of the second appellant in whose father's name the property was purchased? and
(ii) Whether the lower appellate Court is right in holding that the suit property is a joint family property when the property was purchased in the name of plaintiff's father alone?"
6. The appellant as plaintiff, filed the suit for declaration of title and permanent injunction stating that the suit properties have been purchased by his father under Ex.A-1. Patta and mutation of revenue records have been made. He died intestate, leaving behind the appellant as the sole heir. He is in possession and enjoyment of the suit properties. But the respondent attempted to interfere with the possession and hence, the appellant-plaintiff has come forward with the suit.
7. The respondent as defendant, resisted the suit, stating that the suit properties have been purchased in the name of Ramaswamy Udayar, out of joint family income and joint extraction. They were treated as joint family properties. The oral partition has taken place between Ramaswamy Udayar and his two brothers, the father of the respondent, Annamalai Udayar and Karuppu Udayar. Item Nos.1 to 3 of the suit properties have been allotted to Annamalai Udayar and so, he is in possession and enjoyment of the same and prayed for dismissal of the suit.
8. The trial Court, after framing necessary issues, considering the evidence, oral and documentary, decreed the suit as prayed for in the plaint. Against that, the defendant preferred appeal, and the first appellate Court has agreed with the defence raised by the defendant and set aside the judgment and decree passed by the trial Court and allowed the appeal. Against that, the present Second Appeal has been preferred by the plaintiff.
9. Learned counsel for the appellant would submit that the suit properties are purchased by the appellant's father under Ex.A-1, dated 14.6.1941. Patta also stands in his name. The kist has been paid by his father. Chitta and adangal also have been filed to prove that he is in possession. It is true that the respondent's father Annamalai Udayar, is the brother of the plaintiff's father Ramaswamy Udayar. Even though the respondent pleaded oral partition, no one has been examined. Oral partition has not been proved and the ancestral surplus nucleus has not been proved. The properties have not been treated as joint family properties. So, the first appellate Court has committed error in dismissing the suit. Hence, he prayed for allowing the Second Appeal.
10. Per contra, learned counsel for the respondent-defendant would contend that the appellant herein has admitted that there were joint family properties and so, the respondent herein has proved that the properties mentioned in Ex.A-1 has been purchased out of surplus income derived from the ancestral joint family nucleus and joint extraction of the three brothers, Annamalai Udayar, Karuppu Udayar and Ramaswamy Udayar. After the purchase also, the properties were treated as joint family properties. In the year "Tharuna" in the Tamil month "Chithirai", there was an oral partition between three brothers. Item Nos.1 to 3 were allotted to the respondent-defendant's father and item Nos.4 to 6 were allotted to the appellant-plaintiff's father Ramaswamy Udayar. So, the first appellate Court has considered all these aspects in proper perspective and came to the correct conclusion and hence there is no infirmity or illegality in the judgment and decree passed by the first appellate Court and hence, he prayed for dismissal of the Second Appeal. He relied on the decision of this Court reported in CDJ 2009 MHC 3498 (V.Ayyanar Vs. Rajendran and others) and submits that the burden is upon the person who pleaded that the properties are joint family properties, to prove the same and prayed for dismissal of the Second Appeal.
11. The appellant has filed Ex.A-1, stating that his father Ramaswamy Udayar purchased the suit items 1 to 6 on 14.6.1941. He was in possession and the mutation of the revenue records have also been made. The appellant-plaintiff's father died intestate and as the sole heir, the appellant inherited the properties. Per contra, the respondent raised a plea that the suit properties were purchased in the name of the appellant's father Ramaswamy Udayar, but it was purchased out of joint family surplus nucleus as well as the joint extraction. It is pertinent to note that the grandfather of the appellant and the respondent is one Maruthappa Udayar and he was having three sons, Ramaswamy Udayar, Annamalai Udayar and Karuppa Udayar. Except the oral ipse-dixit of D.W.1, no other evidence is available to show that the family of Maruthappa Udayar's sons, have surplus ancestral nucleus. There is no evidence before the Court.
12. The learned counsel for the appellant relied upon the decision of a Division Bench of this Court reported in 1995 (1) M.L.J. 336 (Sengodan Vs. Dharmalingam) to prove that the burden is upon the person who pleads that the property is joint family property, to prove the same. He also relied upon the decision reported in CDJ 2009 MHC 3498 (V.Ayyanar Vs. Rajendran and others) and argued that the burden is upon the respondent-defendant to prove the said aspect. In the decision of the Supreme Court reported in 2003 (10) SCC 310 (D.S.Lakshmaiah Vs. L.Balasubramanyam), it was held that 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. The said decision reported in 2003 (10) SCC 310 was subsequently followed by the Supreme Court in the decision reported in 2007 (10) SCC 602 (Makhan Singh Vs. Kulwant Singh). As per the said decisions of the Apex Court, it is well settled principle of law that the person who pleads that the property is joint family property, the burden is upon him to prove the same. As already stated, there was no evidence and so, the burden is upon the respondent-defendant to prove the same. He has examined D.W.2 one Sivaswamy. He has deposed about the enjoyment of the properties by both the respondent and the appellant. Moreover, in paragraph 5 of the written statement, the defendant has pleaded that there was oral partition between the three brothers. Item Nos.1 to 3 were allotted to the respondent's father. It is pertinent to note that there is no dispute about item Nos.4 to 6. The only dispute that arises in this appeal is in respect of item Nos.1 to 3. So, the burden is heavily upon the respondent-defendant to prove that the properties have been purchased out of joint family funds and also the properties have been blended in common hotch-pot and treated the suit properties as joint family properties till the alleged partition said to have taken place in "Tharuna" year in the month of Chithirai. It is pertinent to note that D.W.1 in his evidence has fairly conceded that at that time, he was only three year old.
13. Now, it is appropriate to consider the revenue records. After the purchase of the suit properties by Ramaswamy Udayar, for Fasli 1359, patta has been issued only in favour of Ramaswamy Udayar in respect of item Nos.1 to 6 and other items. The patta book has been marked as Ex.A-3. In that also, the patta has been given only in favour of Ramaswamy Udayar, the father of the appellant. The patta number is 341. Along with the suit properties, the other properties have also been given.
14. It is appropriate to consider the oral evidence of D.W.1. D.W.1 has stated that at the time of partition, he was only three year old and he was not personally aware of the same. But the person who is personally aware of the oral partition has not been examined before the Court. In such circumstances, the burden is upon the respondent to prove the same that in pursuance of the partition, the revenue records have also been changed in the name of Annamalai Udayar, the father of the respondent and he is enjoying the properties by paying the kist.
15. The respondent-defendant has filed Exs.B-1 to B-30 and Ex.B-1 to B-11 are the kist receipts in the name of the respondent-defendant and they relate to Fasli 1378 (i.e. for the year 1969). The patta number is given as 341. It is pertinent to note that Ex.A-3 patta book relating to patta No.341, is not only in respect of the suit properties, but also in respect of the other properties in other survey numbers. As per Ex.A-3, along with Ex.B-1, the defendant paid Re.1.30p. in respect of patta No.341. As already stated, the patta No.341 includes the other items of properties, apart from the suit properties. In the abovesaid circumstances, it is the duty of the respondent-defendant that his father and after him, he enjoyed the suit properties in item Nos.1 to 3.
16. The other vital documents are Ex.A-25 and A-26, the survey notices. Ex.A-25 relates to Patta No.213 with Survey No.129 and Ex.A-26 relates to Patta No.223 relating to S.Nos.98 and 129. Both are given in the name of the appellant herein. All the six items of the properties have been given in the name of the appellant herein. Ex.A-25 and A-26 were issued on 14.6.1987.
17. At this juncture, it is appropriate to consider Ex.B-12, which has been issued in favour of the respondent-defendant. In that, the Survey Numbers have been stated as 129/8, 129/11, 129/12 and patta number has been given as 554. Ex.B-12 was given on 1.8.1987. In Ex.B-3, the old survey number has not been mentioned. The kist for the patta No.554 has been paid as per Exs.B-13 and B-14 to B-22, which are all after the suit. The defendant also filed Exs.B-24 to 28, all of which are patta passbooks. It is not relevant for the case. The respondent also filed Ex.B-30, the Sale Deed in favour of one Raman, by the defendant. It is also irrelevant for the case.
18. The appellant has filed Ex.A-30, in which all the six survey numbers have been mentioned and all the suit properties have been mentioned and the patta number is mentioned as 341. It is relating to Fasli 1361 (for the year 1952) and stands in the name of the father of the appellant. So, if really the partition has taken place in "Tharuna" year of 1944, and the mutation of revenue records have taken place, but after 1944, till 1987, i.e. on the date of issuance of patta under Ex.B-12, the patta stands in the name of Ramaswamy Udayar, after his death, it stands in the name of the appellant herein. But only under Ex.B-12, the patta has been changed and immediately the appellant has given a complaint, and then the suit has been filed.
19. In the above circumstances, the documents filed by the respondent-defendant under Exs.B-1 to B-11 even though it is mentioned as patta No.341, not only consist of the suit six items of properties, but also other items of properties. Moreover, the defendant has paid Re.1.30p., which is a fraction amount. Per contra, the appellant and his father treated the properties as separate properties and the appellant filed documents Exs.A-35 to A-44, all of which are adangal, standing in the name of the appellant's father Ramaswamy Udayar for the Faslis 1388 to 1397.
20. It is also pertinent to note that after the purchase by Ramaswamy Udayar, there was dispute in respect of adjacent owner and during the lifetime of Ramaswamy Udayar, he sent a petition to the District Collector under Ex.A-45, dated 10.6.1953. In that, the description of the suit properties has been given. If really as per the version of the respondent, the partition has taken place in 1944 "Tharuna" year, Chithirai Tamil month, then Ex.A-45 will not have come into existence, because, in Ex.A-45 complaint, all the six items of the suit properties have been mentioned, which relates to 1953. In the above circumstances, it is clearly proved that the appellant's father Ramaswamy Udayar has purchased the properties and he treated the properties as self-acquired properties and he dealt with the same. So, the respondent herein (defendant) who pleaded that the suit properties are joint family properties, has not proved the same. In the first appellate stage, the respondent has put-forth the argument that by blending of the separate properties of Ramaswamy Udayar with the common joint family hotch-pot, it became the joint family properties.
21. In page 5 of the first appellate Court's printed copy of the judgment, the learned District Judge has incorporated all the judgments and in paragraph 12 of the judgment, the first appellate Court has come to the conclusion that though the properties have been purchased in the name of the father of the appellant, but it was purchased out of the joint family income and the properties have been divided between the three brothers. This is erroneous.
22. In view of the aforesaid judgments of the Supreme Court reported in 2003 (10) SCC 310 (cited supra), which was subsequently followed by the Supreme Court in the decision reported in 2007 (10) SCC 602 (cited supra), the burden is upon the respondent-defendant, but he has not discharged his burden. Per contra, the appellant has proved that the properties have been purchased out of the separate income of his father. The appellant-plaintiff has seen, but there is no evidence on the side of defendant, because D.W.1 is only two years at the time of partition. In the year 1944 till 1987, there was no revenue records to show that the properties have been dealt with by the respondent. The first document that came into existence as per Ex.B-12, which was only in 1.8.1987 and then only, the problem arose and the suit has been filed. In the above circumstances, I am of the view that the respondent herein has not proved that the suit properties have been purchased out of joint family surplus nucleus and joint extraction of the co-parceners and he has also failed to prove that even though the properties have been purchased in the name of Ramaswamy Udayar, that has been blended in ancestral joint family common hotch-pot and blended with the joint family properties and treated as joint family properties.
23. Besides that, the respondent failed to prove that there was partition between three brothers. He has not examined any independent witness to prove that there was partition between the three brothers.
24. In the above circumstances, I am of the opinion that the respondent-defendant has not proved that the suit properties-item Nos.1 to 3 are the joint family properties of Annamalai Udayar, Ramaswamy Udayar and Karuppu Udayar and items 1 to 3 of the suit properties were allotted to the father of the respondent, namely Annamalai Udayar. As already stated, the respondent has not proved his possession. The possession is with the appellant. Exs.A-35 to A-44 clearly prove that the properties have been in possession of the appellant and his father. So, the first appellate Court has committed error and came to the conclusion considering the evidence of D.W.1, accepting the alleged partition. The first appellate Court has erroneously placed the burden upon the appellant-plaintiff to prove that the suit properties are not joint family properties. But the trial Court considered all the aspects in proper perspective and came to the correct conclusion. Hence, the judgment and decree of the first appellate Court are liable to be set aside and that of the trial Court are liable to be restored.
25. In fine,
(i) the Second Appeal is allowed.
(ii) the judgment and decree of the first appellate Court are set aside.
(iii) the judgment and decree of the trial Court are restored.
No costs. C.M.P. is closed.
18.12.2009 Index: Yes Internet: Yes cs To
1. The Principal District Judge, Perambalur.
2. The District Munsif, Perambalur.
3. The Section Officer, V.R. Section, High Court, Madras.
R.MALA,J cs Judgment in S.A.No.319 of 2003 18.12.2009