IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21-10-2008 CORAM: THE HON'BLE MR.JUSTICE K.KANNAN A.S.NO.1074 and 1193 OF 1990 Sampath @ Muthu Naidu ...Appellant/1st Defendant (in AS NO.1074/1990) Appellant/Plaintiff (in A.S.No.1193/90) Vs. 1.Venkatesan ...1st Respondent/Plaintiff 2.Krishnaveni 3.Rajakumari ...Respondents 2 & 3/Defendants 2&3 (in AS No.1074/1990 1.Venkatesan 2.Krishnaveni 3.Rajakumari ... Respondents 1 to 3/ Defendants 1 to 3 (in A.S.NO.1193/90) A.S.No.1074 of 1990: Appeal filed under section 96 of the Code of C.P.C against the judgment and decree of the Court of Subordinate Judge, Tiruvannamalai in O.S.No.87 of 1986 dated 30.3.1990 A.S.No.1193 of 1990: Appeal filed under section 96 of C.P.C. against the judgment and decree of the Court of Subordinate Judge, Tiruvannamalai in O.S.No.101 of 1986 dated 30.3.1990 For Appellant : Mr.V.Raghavachari For Respondents: Mr.D.Rajendran for Mr.S.M.Loganathan --- J U D G M E NT I.Facts in brief The connected appeals arise out of the common Judgment rendered by the Sub Court, Tiruvannamalai in O.S.No.101 of 1986 and https://hcservices.ecourts.gov.in/hcservices/ 87 of 1986. The status of the parties in O.S.No.101 of 1986 has been taken by the trial Court as signifying reference in the suit in O.S.NO.87 of 1986 also adopt the same. 2. The relationship between the parties is admitted. The plaintiff Muthusamy Naidu @ Sampath and the first defendant Venkatesan are the sons of Kuppusamy and Renganayaki. Their sisters are defendants 2 and 3. The plaintiff has filed a suit for partition of the properties set out in 'B' schedule admitting them to be ancestral properties, in which the plaintiff is entitled to 5/12 share and for the relief of declaration of injunction in respect of 'C' schedule on the claim that they are the separate properties. The first defendant has filed his own suit for partition for both 'B' and 'C' schedule properties in O.S.NO.87 of 1986 on the basis that all the properties are joint family properties. The trial Court has upheld the contention of first defendant that all the properties are joint family properties, in which, the plaintiff and the first defendant are each entitled to 5/12 share and each one of the daughters entitled to 1/12 share. The exclusive claim to title with reference to 'C' schedule has been disallowed. The Court while granting the relief for partition has found that the debt covered under Ex.A7 and A8 alone are binding on the first defendant and in respect of other debts, the first defendant has not been saddled with any liability. II. Two principal points for consideration 3. The plaintiff has filed two appeals against common judgment assailing the finding that 'C' schedule properties are joint family properties and denial of binding nature of all the debts contracted to him and referred to through exhibits A4 to A23. Only two principal contentions emerged viz. whether the suit C schedule properties belong to the family as contended by the first defendant and whether the debts contracted by the plaintiff are binding on the first defendant. III.Joint family character of all properties 4. Mr.V.Raghavachari, arguing for the appellants pointed out that the only averment made in the plaint filed by the defendant is that 'they were four acres of fertile land and source of well irrigation and that the income from the ancestral nucleus was more sufficiently made the expenses of the family and had left the surplus'. This averment according to him is not sufficient to support the claim of the first defendant that these acquisitions are also the joint family properties. It has to be borne in mind that the family depended wholly on agriculture and there had been no other source of income other than agricultural income. It is in evidence and a matter https://hcservices.ecourts.gov.in/hcservices/ of admission by the plaintiff that he had no other source of income except the agricultural lands obtained by the family ancestrally. The first defendant has adduced evidence that all the lands are two bhogum of lands and they have irregation facility from Sathanur Dam. There are also two wells in the ancestral properties. It is a well laid out proposition of law that the persons who allege that the particular items of properties belong to a joint family has to establish the same. The onus of proof on the defendants cannot be doubted. But, in this case, in my view, it is a very light one. The reason is that for agricultural families with no independent source of income, if there are acquisitions made, the party claiming the acquisitions belonging to the family has merely to state that they were no source of income for the family and the acquisitions were therefore made out of the income from the admitted joint family propertied. In this case, the joint family owned more than four acres of land and when no other source of income has been available for the defendant, it could not be contended that subsequent acquisitions have been made independently by the plaintiff without detriment to the joint family. Indeed, the acquisitions made and found in "C" schedule are not even properties exclusively standing in the name of the plaintiff, but have been jointly purchased in the name of the plaintiff and his mother. The Trial court has adverted to the issue of matter of presumption under law relating to joint family status, when no other source of income , apart from the income from joint family is made out and by the fact that admitted joint family properties are sufficiently productive. I do not find any infirmity in the finding rendered by the trial Court with regard to 'C' schedule properties as belonging to the joint family and I affirm such a finding. IV Extent of Binding nature of debts: 5. The binding nature of debts contracted by the first defendant is disputed by the first defendant on the ground that all the debts are false and they have been got up only for defeating the claim of the 1st defendant to a just partition. The trial Court has dealt with each one of the debts and has come to the conclusion that only the debt in favour of the Cooperative Society viz. Ex.A8 and the Court decree in O.S.701 of 1981 in Ex.A7 are binding. Mr.Raghavachari, argued that admittedly after the death of the father, more than 30 years back, the plaintiff who was in management of the properties had married of both his sisters, the sisters side with the plaintiff and it is seen from the wedding invitations marked as Ex.A1 and A2 that the marriage of defendants 2 and 3 were celebrated on 8.7.1970 and 19.6.1976 respectively. It is also in evidence that the construction of the residential house was completed and the Grahapravesam was made on 2.3.1976. It is the contention of the plaintiff that debts had been contracted for celebration marriage https://hcservices.ecourts.gov.in/hcservices/ of sisters as well as for construction of house and for other family necessities. The 1st defendant would refute this argument by pointing out that the house itself was dilapidated and no new construction had been made. He has relied on photograph of the house showing the dilapidated nature of the building. The 1st defendant admitted that the plaintiff had celebrated the wedding of their sisters, but all the debts contracted by the plaintiff were far too removed from the occasions of the marriages and they could not have been contracted for such purposes. The trial Court has referred to each one of the debts and has found that they were not true except in EX.A7 and A8 as referred to above. Counsel for the appellants made reference to each one of the documents to bring home the point that when the plaintiff was admittedly the Kartha of the family and he had power to contract debts without joining the other members of the family in the debt instruments. This proposition cannot be in doubt, unless the debt is for purposes not binding on the family or when they were not for any necessities. 6. As regards ExA6, it is a mortgage executed by the plaintiff for himself and his guardian for his brother, the defendant. The debt had been discharged on 10.8.1974 itself and therefore there is no need to make reference to the same and there is no question of binding the defendant on the debt that had been originally contracted, but discharged prior to the institution of the suit. This document, however is important in favour of the circumstances that the family did not always have surplus and it had one time become necessary to contract debt for Rs.10,000/- for family necessities. 7. As regards Ex.A7 and A8, there is already a finding by the trial Court that they are binding and therefore requires no further probing, in view of the fact that the defendant has not impeached the finding by filing a cross-appeal or assailing the finding at the time of arguments. Ex.A9 is a decree debt in favour of Panchalai on the file of District Munsif, Tiruvannamalai in O.S.NO.517 OF 1981 and the decree copy shows that a promissory note dated 8.2.1977 for Rs.4,000/- had been sued upon. The Trial Court has stated that promissory note itself has not been filed and there is no definite proof that the debt had benefitted the family either for purposes of the family or for celebration of the marriage of their sisters. If the promissory note is filed in Court and a decree is passed, the document will be defaced and cancelled. The proof of debt can be only the decree and not the promissory note. The Court below has failed to notice the difference and has adversely commented, and in my view, wrongly, against the non-production of the promissory note. As regards the debt covered under Ex.A10 which refers to the decree which is now pending for adjudication before the High Court, the Court below has reasoned that the plaintiff himself has not https://hcservices.ecourts.gov.in/hcservices/ deposited Rs.7,000/- as directed by the High Court and the plaintiff cannot seek for contribution for the same. Ex.A11 is the document of sale executed by the plaintiff and the defendant for Rs.10,000/- and the sale deed contains a recital that it was being effected to discharge the loan contracted for construction of the house and for sundry debts of the family. It is clear from the recitals the family could not discharge the debt from merely its own income and it had perforce to sell an item of joint family property for discharge of the debt. This document is also evidence of the fact that till the year 1978, debt has still outstanding for construction of the house. Ex.A12 is a promissory note in respect of Alamalu Ammal for Rs.2,000/- and it remans undischarged, nobody has been examined in respect of the said document except PW1 himself and it is not again seen as to how the document was produced before the Court from the hands of the creditor . The trial Court has said that the promissory note is barred by limitation, since the last endorsement has been only made on 13.8.1981 and therefore the debt could not be said to be binding. I do not see any mistake in the line of reasoning. Ex.A13 is a promissory note in favour of one Muthukumarasamy for Rs.3600/- and it refers to a recital of debt for construction of the house and for cash of Rs.1100/- as having been received. The trial Court has reasoned that the house hadbeen constructed even in the year 1976 and there could not be a borrowing in the year 1981. EXs.A14 and 15 are endorsements of Ex.A13. I do not propose to modify the finding rendered by the trial Court in respect of these debts also. 8.Ex.A16 is the debt in favour of M.Damodaran for Rs.15,000/- on 10.1.1981. The creditor has been examined as PW4, but one aspect that excited suspicion about its genuineness is the fact that the said witness is the wife's brother of the plaintiff. The recitals were to the effect that Rs.7,500/- had also been received to discharge an earlier loan and cash had been paid for Rs.3,000/- on the date of Rx.A16. Ex.A17 and A18 are the endorsements on Ex.A16 and I do not believe the genuineness or binding nature of the debt only for the reason that it has emanated from a very close relative of the plaintiff and the creditor himself is not able to recall what was the subsisting debt at the time when the plaintiff had contracted the same. Ex.A19 is the debt in favour of father of PW5 for Rs.10,000/-. PW5 states that he is 22 years of age and he does not have any direct knowledge about when his father lent the amount and what the recital in the promissory note is. I do not therefore also think that Ex.A19 debt is true. Ex.A20 and 21 are the endorsements on the promissory notes. Ex.A23 is debt in favour of Amaravathi Ammal for Rs.5,000/- contracted on 11.10.1979 and the document has been summoned from the suit in O.S.NO.718 of 1980 filed before the District Munsif, Tiruvannamalai. The recitals in the document refers to the fact that it is contracted for the purpose of the family. The document which is sued upon cannot be false. Therefore, the genuineness of the https://hcservices.ecourts.gov.in/hcservices/ documents under Ex.A10, which is the subject matter of appeal before the High Court and Ex.A23 which is also sued upon cannot be doubted. 9. I have already pointed out that the family was not a very affluent family, although not always wanting in resources. The transactions of sale of the property under Ex,.A11 on 5.11.1978 and the mortgage deed under Ex.A6 lend credence to indebted circumstances of the family. It is an admitted case that the plaintiff was the manager of the family properties after the life time of the father. It is also admitted case that the defendant had allowed his elder member to manage the affairs, particularly for celebration of the marriage of the sisters and for construction of the house. There is a difference between the debt contracted by the father manager and a brother manager of the Hindu Joint family. The father can validly bind a junior copercener's share in the joint family property by virtue of the pious obligation of the son to discharge his father's debt. As regards the brother, the debt can be contracted lawfully so as to bind the junior member, only if the debt is contracted for necessities of the family. The genuineness of the debts themselves cannot be disputed, because it has been suggested to the creditors who have been examined that the plaintiff had been indiscriminate in the borrowals and rash in its ways. The suggestion is really wide off the mark and it cannot be appropriate to brand the debts which have fructified into decrees or where suits are still pending to say that the plaintiff could have deliberately invited the creditors to file suits to have the pleasure of being arraigned as defendant in such suits. 10. The contention of the defendant is that when one of the decrees was put in execution by the decree holder by attaching of the properties to sale, the defendant had filed an application to raise attachment in so far as his share was concerned and the plaintiff had not preferred appeal against the same. The document is referred to as Ex.B.8, but I am afraid, it cannot go so far as to constitute any estoppel against the plaintiff from contending that the defendant cannot be bound also in respect of other debts. One reason is that if the attachment had been raised with reference to any portion of the property, the plaintiff could not be said to be an aggrieved party to prefer an appeal. Secondly, a particular debt which is not even referred to by the plaintiff as binding on the defendant, need not be used against the plaintiff for the binding nature of other debts, for which specific pleas are made. V Conclusion 11. Having regard to the discussions made above, I modify the finding of the trial Court in so far as it relates to the binding nature of debts covered under Ex.A9,10 and 23. I find that the debts https://hcservices.ecourts.gov.in/hcservices/ are true and binding on the defendants also. As regards the debts covered under EXs.A12 ,A13,A16 and A19, I affirm the decision of the trial Court. 12. In the circumstances, the trial Court decrees are modified only insofar as the binding nature of the debts referred to above and the plaintiff and 1st defendant will be entitled to 5/12th share each in respect of B and C schedule properties subject to the liability in respect of the debts covered under Exs.A7,A8,A9,A10 and A23 to the extent to which they hold their share in the property. The final decree shall make due provision for the discharge of the same. The appeals are allowed in part to the above extent only. In all other respects, the trial Court decrees are confirmed. Having regard to the fact that the parties are close relatives and they are litigating under the bonafide title, there shall be no direction as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. VJY To 1. The Subordinate Judge, Tiruvannamalai 2. The Record Keeper, V.R.Section, High Court, Madras-104. + 2 CC To Mr.M.Sriram, Advocate SR NO.58205 + 1 CC To Mr.V.Raghavachari, Advocate SR NO.58309 JUDGMENT IN A.S.NOS.1074 AND 1193 OF 1990 SSN {CO} TP/10.12.08 https://hcservices.ecourts.gov.in/hcservices/