BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH A.S.No.159 of 2000 1. Thilagavathy 2. Senapathy .. Appellants/Plaintiffs Vs. 1. Sundaram 2. V.L.Natarajan .. Respondents/Defendants Prayer :- This appeal has been preferred under Section 96 of CPC against the decree and judgment, dated 17.02.1998, made in O.S.No.224 of 1991 on the file of the Sub Court, Dharapuram. For Appellants : Mr. S. Thangavel For Respondents : Mr.D.Krishnakumar for R1 JUDGMENT This appeal has been filed by the plaintiffs against the judgment and decree passed by the lower Court in disallowing the claim for partition of suit properties in 'A' schedule II, A schedule III and A schedule IV and 'B' schedule of the suit properties and the mesne profits asked for in respect of those properties. 2.The brief facts made in the plaint necessary for the disposal of the appeal would be as follows:- 1st plaintiff is the second wife of Govinda Mesthiri who died about 10 years ago. The 2nd plaintiff is the son of Govinda Mesthiri by his first wife. Plaintiffs 3 to 9 are the sons and daughters of Govinda Mesthiri and the 1st plaintiff. The property set out in the schedule originally belonged to the family of Govinda Mesthiri. He was in possession and enjoyment of the property. He has been dealing with the property as his own. After his death,plaintiffs have become entitled to the property. 2(b). Defendant has absolutely no title or interest in the property. Claiming some right in the property defendant with the https://hcservices.ecourts.gov.in/hcservices/ assistance of her husband and son forcibly drove the plaintiffs out of the property. When questioned the defendant informed the plaintiffs that she had purchased the property for valid consideration. But there is no document to evidence her title nor did she showed any documents to evidence the sale. Defendant was in unlawful possession of the property over the years. So plaintiffs caused a notice dated 16.12.1988 to be given to defendant calling upon her to surrender possession of the property. Defendant evaded receipt of this notice and so plaintiffs caused another notice to be given to the defendant which the defendant has refused to receive. Therefore, plaintiffs are constrained to file the suit for declaration of their right to the suit property and also for recovery of possession. The cause of action for the suit arose in 1984 when plaintiffs were forcibly evicted from the property in Thiruvanthigai village, Panruti within the jurisdiction of the court. 2(c). Plaintiffs prays that as against the defendant permitting the plaintiffs to file and prosecute the suit as indigent persons and pass a decree declaring plaintiffs absolute title to the suit property and pass a decree declaring plaintiffs absolute title to the suit property and also for future mesne profits from the property till the property is delivered to the plaintiffs and for cost of the suit. Hence, the suit. 3.The case of the 1st defendant before the lower court would be briefly stated thus:- Original owner Govinda Mesthiri sold the suit property to the Kasimani under a registered sale deed dated 01.02.1944. He sold the property acting as a guardian for his sons who were then in existence. Kasi Naidu let out the suit property and rented to Govinda Mesthiri. Since he did not pay the rent regularly, a petition for eviction order filed against him and the same was ordered on 25.03.1957. In pursuant to the same, Kasi Naidu took delivery of the property through court on 16.04.1957. With that, for the debt due by Kasi Naidu the suit property was brought to court action and the court held that one Dhandapani Chettiar become the successful purchaser, and in pursuance of the same, took possession of the property and sold the same to Kasi Naidu under a registered sale deed dated 05.03.1966. When Kasi Naidu was put in possession of the suit property and in turn sold the suit property to the defendant herein on 16.03.1966 for Rs.2000/-. The defendant alone is in possession of the property from the date of the purchase by paying tax and enjoying the property in her own right for well over 20 years and thus prescriptive title in any event. Any averment in Para V of the plaint as against the same is false. The notice is said to have been issued by the plaintiffs never reached the defendant and she never refused any notice. Therefore the plaintiffs are not entitled to claim mesne profits. Since the plaintiffs had no title at any time, they cannot have any declaration of their title nor possession in pursuance of the same. Hence, the suit is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 4. The 2nd defendant remained exparte before the lower court. The plaintiffs examined the 1st plaintiff as P.W.1 and other two witness as P.W.2 and P.W.3 and had produced Ex.A.10 and A.6 in order to substantiate their case. The 1st defendant had examined himself as D.W.1 and had examined two witnesses on his side as D.W.2 and D.W.3 and had produced Ex.B1 to B8 in support of his case. The lower court had gone through the evidence adduced on both sides and had come to a conclusion that the plaintiffs were entitled to partition and separate possession and their 2/3 share in 'A' schedule item I of the suit properties and had also allowed the claim for mesne profits in respect of the said property alone. The lower court had dismissed the suit filed by the plaintiffs in respect of 'A' schedule items II to IV and in 'B' schedule of suit properties and the mesne profits arising therefrom. 5. The aggrieved plaintiffs have filed this appeal against the dismissal of their claim in respect of those properties and the findings reached by the court for such dismissal. 6. Heard Mr.S. Thangavel, learned counsel for the appellants/plaintiffs and Mr.D.Krishnakumar learned counsel for the 1st respondent/ 1st defendant. There is no appearance for the 2nd respondent before this court also. 7. On a careful perusal of the pleadings and the evidence adduced on either side, judgment and decree passed by the lower court the grounds raised in the appeal memo and on hearing the arguments of either side, this court could see the following points emerged for consideration: 1. Whether items II to IV of 'A' schedule properties and 'B' schedule properties are the joint family properties constituting all the joint family between the plaintiffs and the 2nd defendant? 2. Whether items II to IV in 'A' schedule and 'B' schedule properties are the self acquired properties of the 2nd defendant? 3. Whether the plaintiffs are entitled to partition and separate possession in items II to IV of 'A' schedule and 'B' schedule properties also? 4. Whether the plaintiffs are entitled for mesne profits in respect of items II to IV of 'A' and 'B' schedule properties as prayed for? 5. Whether the judgment and decree of the lower court against the plaintiffs in respect of items 2 to 4 of 'A' schedule and 'B' schedule properties are liable to be set aside and is the appeal allowable? 6. To what relief the appellants are entitled for? 8. The learned counsel for the appellants/plaintiffs would submit in his argument that the lower court ought to have come to a conclusion that the suit properties mentioned in items II to IV of 'A' schedule and 'B' schedule are also belonging to joint family and the plaintiffs are https://hcservices.ecourts.gov.in/hcservices/ entitled to their respective share in those properties also. He would further submit in his argument that the lower court ought not to have relied upon the story of the 1st defendant that the said properties were belonging to the 2nd defendant as separate property by virtue of his purchase through the income of his separate business. He would also submit in his argument that the family consisting of plaintiffs and the 2nd defendant was having joint family nucleus which yielded income and the purchase made in the name of the 2nd defendant would be a joint family property. He would further submit that the plaintiffs had discharged their burden by proving that the family had one income as independent nucleus and the properties in items II to IV 'A' schedule and 'B' schedule were purchased from and out of the said come. It is for the 1st defendant to prove through cogent evidence that the 2nd defendant was having independent income separately without any connection with joint family properties to purchase the said properties. 9. He would also draw the attention of the court that the 2nd defendant has no other avocation than agriculture and it had been reflected in all the sale deeds in which the suit items II to IV of 'A' schedule and 'B' schedule properties were purchased. The contention of the 2nd defendant was that he was having a lorry business which was not specifically pleaded by the 1st defendant nor any income derived from the said profession was utilised for the purchase of 'B' schedule properties. He would further submit in his argument that the 1st defendant had clandestinely filed suit for specific performance in respect of 'B' schedule properties without impleading the plaintiffs when it has been stated to have agreed between the defendants that the 2nd defendant has to execute the sale deed along with his heirs. He would further submit in his argument that the lower court had come to a wrong conclusion that the 1st defendant had established that the properties are belonging to the 2nd defendant absolutely is a surmise. 10. He would further submit that the lower court ought to have discarded the evidence of D.W.1 to D.W.3 regarding the alleged lorry business of the 2nd defendant when they were not able to produce any of the documentary evidence which could be abundantly available if really the 2nd defendant was having such lorry business. 11. He would also submit that the evidence adduced regarding the lorry business cannot be accepted since there is no specific pleadings raised by the 1st defendant in the written statement. He would also submit that the reasoning given by the lower court for holding that items II to IV of 'A' schedule and 'B' schedule properties are not joint family properties, cannot be accepted in view of the judgment of this court made in (2002) 3 MLJ 187. He would cite the aforesaid judgment for the principle that when once the person claimed the properties to be a joint family or coparcenary property and had established existence of joint family properties or the availability of joint family nucleus from the said properties, the presumption could be that with the aid of joint https://hcservices.ecourts.gov.in/hcservices/ family properties, further properties could have been acquired. If it is shown by the plaintiffs, the onus shifts on the person who claims the property as self acquisition of the said person on whose name the property stands. He would also submit in his argument that the existence of joint family properties at the time of purchase of items II to IV of 'A' schedule and 'B' schedule were not disputed and the said properties were certainly a good income yielding property since it was irrigated by lower Bhavani project and therefore the lower court ought to have expected the 1st defendant to prove that the property was purchased by the 2nd defendant with his own funds. He would also submit in his argument that the lower court ought to have found that the non impleadment of the plaintiffs in the suit for specific performance filed by the 1st defendant against the 2nd defendant in S.No.10/91 in a surreptitious circumstances and the present plea in this suit that the property belongs to the 2nd defendant separately should have been rejected. Therefore, he would request the court to set aside the said portion of the judgment and decree in dismissing the claim over items II to IV of 'A' schedule and 'B' schedule properties and to decree the suit in full and thereby to allow the appeal. 12. Learned counsel for the 1st respondent would submit in his argument that the plea of the plaintiffs that the 2nd defendant was having sufficient joint family properties to buy the items II to IV of 'A' schedule and 'B' schedule properties cannot be upheld since the plea before the lower court was that the 2nd defendant who had got the property from the partition in Ex.A.1 from and out of the income from the properties, purchased the other properties. The said plea raised by the plaintiffs in the plaint cannot be upheld simply because the partition stated to have been executed in between the 2nd defendant and one Saminathan and Meenatchi dated 25.02.1985 to the alleged purchase of 'B' schedule properties through Ex.A5 and A6 and B2 and the items II to IV of 'A' schedule properties through Ex.A3,A4 and A2 were on different dates prior to the said partition deed and therefore the claim of the plaintiffs in a wrong footing was not upheld by the lower court. 13. He would also submit in his argument that the defendant had referred to the lorry business of the 2nd defendant in the written statement by stating that he had got monies from several persons in respect of lorry business and for that purpose he sold the property and executed agreement in Ex.B.1. Therefore, he would request the court that the evidence adduced by D.W.3 that the 2nd defendant was having lorry business on his own should have been considered as proof despite no documents have been available with the 1st defendant. He would further submit before the court that the plaintiffs should prove their nexus in between the joint family nucleus and the purchase by adducing cogent evidence but they have not produced any evidence to that effect and on the other hand the plea of the plaintiffs were not found to be genuine. He would further submit in his argument that there is no evidence to prove on the side of the plaintiffs that there was surplus income from https://hcservices.ecourts.gov.in/hcservices/ ancestral nucleus. The properties stand in the name of one of the members of the joint family cannot be treated as joint family property. He would cite the judgment of this court made in 2001 (3) CTC 577 in between Gowri Ammal and another vs. Vaithilingam (decd.) and 10 others in support of his case. He would also bring it to the notice of this court for the same principle yet another judgment reported in 2004 (4) CTC 208 in between R.Deivanai Ammal (Died) and another vs. G.Meenakshi Ammal and others. He would also submit in his argument that the lower court had appraised the evidence accordingly and had come to a correct conclusion and therefore, there is no reason for this court to interfere with the judgment and decree passed by the lower court and therefore the appeal has to be dismissed in respect of 'B' schedule properties. 14. I have given anxious thoughts to the arguments advanced on either side. Points 1 and 2: The plaintiffs are the appellants herein. The plaintiffs have filed the suit before the lower court for partition and separate possession of their 2/3rd share from 'A' schedule and 'B' schedule properties and for mesne profits. The 2nd defendant is their father admittedly the properties described in 'A' schedule and 'B' schedule were held in possession by the 2nd defendant purchased by him through the partition had with saminathan and Azhagu meenatchi. The said partition in between the 2nd defendant with other persons and the purchase made by the 2nd defendant with other persons have been admitted. According to the plaintiffs the sale itself through which the 2nd defendant purchased from the third parties have been done by him with the help of the income of the joint family properties and therefore the properties standing in the name of 2nd defendant were all joint family properties. The concept of existence of joint family and the joint family nucleus and the utilisation of the joint family nucleus for the purchase of additional property in between all the joint family members is known to Hindu Law for a long period. The plea of the plaintiffs in the plaint was to the effect that the 2nd defendant had got some properties from partition and from and out of the income from the said properties he had earned lot and with the help of the income he had purchased the remaining properties mentioned in item II to IV of 'A' schedule and 'B' schedule properties. However, it has been said to court that the said partition said to have been executed in the year 1985 but the purchases made by the 2nd defendant through Ex.A5,A6 and B2 and A3,A4 and A2 were prior to the said period of deed. According to the submission made by the learned counsel for the 1st respondent the plea raised by the plaintiffs is totally wrong and the case of the plaintiffs cannot be sustained. As I have already pointed out that the mere mistake committed in the pleadings regarding the existence of joint family in various form and the income incurred cannot in anyway defeat the existence of joint https://hcservices.ecourts.gov.in/hcservices/ family and joint family nucleus merge therefrom. In the aforesaid circumstances, the mistake and plea cannot make the plaintiffs to land in a wrong footing. Therefore, we have to see as to whether there was any existence of joint family properties during the purchase of the properties through Ex.A2 to A6 and B2 with reference to items II to IV of 'A' and 'B' schedule properties. The partition deed in Ex.A.1 would disclose that the properties are mentioned in 'A' schedule of the properties belonging to the 2nd defendant. However, the properties in their schedule were got in common by the said parties through the partition deed in Ex.A1. It is no doubt true that the properties mentioned in Ex.A1 and schedule 'A' of the properties were already held by the 2nd defendant along with other properties and were deriving income. There is no dispute on that point. Therefore, there were properties belonging to the 2nd defendant ancestrally and he was eking out his livelihood through the income from the said properties. The evidence of P.W.1 and P.W.2 would go a long way to show that the 2nd defendant was having income for his livelihood from the said properties. In the said circumstances, it has become necessary for this court to refer to the judgment of this court reported in (2002) 3 M.L.J. 187 in between M.Rangammal and others v. B. Balavenkatesan. The relevant passage would run thus: "22. It has been held by the Supreme court in Mudigowda Gowdappa Sankh vs. Ramchandra Revgowda Sankh, A.I.R 1969 SC 1076 that: "It is now well established that an agreement between all the coparceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assent or not. Once the decision is unequivocally expressed, and clearly intimated to his co- sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable. If, however., the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint family status. Again in the same decision this is what is stated- there is no presumption that a Hindu family merely because, it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property https://hcservices.ecourts.gov.in/hcservices/ is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims, the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate. Similarly the judgment referred by the learned counsel for the 1st respondent in respect of similar judgment of this court reported in 2004 (4) CTC 208 in between R. Deivanai Ammal (Died) and another vs. G. Meenakshi Ammal and others would run thus: "15. It is a well-established principle of law that where 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. 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. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus should be such that with its help the property claimed to be joint could have been acquired. A family house in the occupation of the members and yielding no income could not be nucleus out of which acquisitions could be made even though it might be of considerable value. In the light of the aforesaid judgment of this court, we could see that the properties had by the 2nd defendant at the time of purchase made through Ex.A2 to A6 and B2 more having considerable income. The evidence of P.Ws would go to show that those properties were irrigated by lower Bhavani project which cannot be denied that such properties do not have any income. According to the joint family properties, the sufficient income derived there from would discharge the burden of the plaintiffs to draw the presumption that the properties in the name of 2nd defendant https://hcservices.ecourts.gov.in/hcservices/ would be amounting to joint family comprising of the 2nd defendant and the plaintiffs. According to the said judgments it is for the disputant to show to court that those properties were not joint family properties but purchased with the separate income derived by the 2nd defendant from his self acquisition. The 2nd defendant did not appear before lower court as well as here. The 1st defendant is ascertaining that those properties were the self acquired properties of the 2nd defendant. Therefore, it is for him to prove that these properties were purchased by the 2nd defendant. According to the evidence produced by the 1st defendant, the 2nd defendant was having lorry business and he had sold the properties through the agreement executed for the debts incurred in the lorry business. He had examined D.W.3 in support of his case. The oral evidence would go to show that the 2nd defendant was having lorry business. It has not been clearly mentioned by D.W.3 or D.W.1 as to when he started lorry business or when he ended in loss. Indisputably, the lorry business would have sufficient documentary evidence for the defendants to produce before the court, in order to establish their case but no such documentary evidence has been produced. Apart from that, the 1st defendant has not specifically mentioned in his written statement that the 2nd defendant had utilised the income from the lorry business the