IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.12.2011 CORAM : THE HONOURABLE MR.JUSTICE S.MANIKUMAR Second Appeal No.1152 of 2005 1. Thirupuram 2. Thilagavathy ... Appellants / Plaintiffs Vs ... 1.A.Natarajan 2.A.Akambaram 3.A.Gopal 4.Tmt.Dhairiyalakshmi 5.A.Lingesan 6.A.Viswanathan ... Respondents/ Defendants Prayer: Second Appeal filed under Section 100 CPC against the judgment and decree dated 23.01.2004 made in A.S.No.25 of 2002, on the file of the VII Additional Judge, City Civil Court, Chennai, confirming the decree and the judgment made in O.S.No.897 of 1998, dated 08.10.2001, on the file of VIII Assistant Judge, City Civil Court, Chennai. For Appellants : Mr.R.Balasubramanian For Respondents 1, 3 & 6 : Mr.V.Subramani For Respondents 2, 4 & 5 : Given-up J U D G M E N T The unsuccessful plaintiffs, who have lost a suit for partition of the suit schedule properties in both the Courts, are the appellants in this second appeal. 2. The Plaint averments are as follows: https://hcservices.ecourts.gov.in/hcservices/ The schedule mentioned property originally belonged to Mr.Annamalai Mudaliar, son of Chinnasamy Mudaliar. The said Annmalai Mudaliar owned ancestral properties in his native village, Narthampundi, Thiruvannamalai District. He sold away the properties with a view to purchase properties at Madras, for which, his elder son, Mr.Selvaraj and his wife contributed their earnings and efforts. The said Mr.Selvaraj, predeceased his father, Annamalai Mudaliar on 23.12.1963 and that the said Mr.Annamalai Mudaliar also died intestate on 05.02.1996, leaving behind his wife, sons and daughter respectively. 3. The plaintiffs, legal heirs of late Mr.Selvaraj and the defendants, legal heirs of late Mr.Annamalai Mudaliar, are entitled to share in the suit properties, purchased from out of the sale proceeds of the ancestral properties, as per the Hindu Succession Act. As the defendants had taken steps to alienate the properties, without consulting the other members of the family, a legal notice, dated 07.09.1996, was issued, claiming share over the properties and that the same was not replied. Hence, the plaintiffs have filed the suit for partition of the schedule mentioned properties, for a declaration of their 2/6th share and for separate possession. In the suit, injunction was also sought for, restraining the defendants from taking any steps to dispose of the schedule mentioned properties, in any manner. 4. The second defendant has filed a written statement and that the same has been adopted by all the defendants. He has contended that his father, Mr.Annamalai Mudaliar, was a building contractor. Suit Item Nos.1 and 2 were purchased out of his own income and not from the sale proceeds of ancestral properties. He further submitted that the first plaintiff's husband, Selvaraj was a tuberculosis patient and took treatment in T.B. Sanatoriam Hospital at Tambaram, for about 1½ years. The first plaintiff left the matrimonial home, due to severity of his illness. His wife gave birth to a child, after six months of her husband's death. 5. The second defendant has further submitted that the property, house and ground, bearing Door No.74, Bhasha Saheb Street, Choolaimedu, Chennai, absolutely belonged to the first defendant, wife of Mr.Annamalai Mudaliar. It is also his contention that Mr.Annamalai Mudaliar, being the absolute owner of the suit Items 1 and 3 in the plaint schedule, by a registered will, dated 28.07.1994, bearing Document No.148 of 1994, in Book No.III in Volume 76 in Sub-Register Office, Kodambakkam, had bequeathed the said properties in his favour along with defendants 4 and 7. It is also his contention that the defendants have already filed Original Petition before this Court, for the grant of https://hcservices.ecourts.gov.in/hcservices/ letters of administration. 6. During the pendency of the suit, the 1st defendant, wife of Mr.Annamalai Mudaliar, died. Defendants 2 to 7 were impleaded as legal heirs of the first defendant, vide order, dated 07.10.1999. On the above pleadings, the lower Court has framed the following issues for consideration, 1. Whether the plaintiffs are entitled to 2/6th share in the suit properties? 2. Whether the suit Item No.2 did not belong to Mr.Annamalai Mudaliar,as contended in the written statement? 3. Whether the suit Items 1 and 3 belong to Mr.Annamalai Mudaliar and whether he had bequeathed the said properties under a Will to the defendants 2, 4 and 7? 4. To what relief? 7. On behalf of the plaintiffs, two witness have been examined and they marked Exs.A1 to A9. The second defendant has examined himself as DW.1 and marked Exs.B1 to B18. The lower Court itself marked two documents as Exs.C1 and C2. On evaluation of pleadings and evidence, the trial Court dismissed the suit, holding that suit Items 1 and 3 were self-acquired properties of Mr.Annamalai Mudaliar. Suit Item No.2 has been held to be the property of Mrs.Loganayaki Ammal, wife of Mr.Annamalai Mudaliar, who died during the pendency of the suit. The trial Court has also observed that Mr.Selvaraj, husband of the first plaintiff, had already executed a release deed, Ex.B7, dated 20.05.1958, releasing his rights in the ancestral properties, after receiving a sum of Rs.800/- and that therefore, the plaintiffs, wife and daughter of Mr.Selvaraj, have no right or claim over in the plaint schedule properties. 8. Being aggrieved by the judgment and decree of the trial Court made in O.S.No.897 of 1998, dated 08.10.2001, on the file of the VIII Assistant Judge, City Civil Court, Chennai, the plaintiffs have filed an appeal in A.S.No.25 of 2002, on the file of the learned VII Additional City Civil Judge, Chennai, contending inter alia that Ex.B7, Release Deed, said to have been executed by Mr.Selvaraj, husband of the 1st plaintiff, will not take away the rights of inheritance of the plaintiffs to the suit properties and it was also inter alia contended that the trial Court has grossly erred in placing reliance on Ex.B14, Will, dated https://hcservices.ecourts.gov.in/hcservices/ 28.07.1994, to exclude the right of the plaintiff to claim for partition of her husband's share in the suit properties. It was also contended that the lower Court has grossly erred in marking the attested copy of Ex.B14, Will, for arriving at the conclusion that by virtue of the abovesaid Will, alleged to have been executed by Mr.Annamalai Mudaliar that the suit Items 1 and 3 were bequeathed to and in favour of defendants 2, 4 and 7. According to the plaintiffs, Ex.B14, Will, requires to be proved under Section 63-A of the Indian Succession Act, by examining the attestors of the original document. Reliance has also been placed on few decisions, (i)2001 SAR (CIVIL) 59 (B) (ii)1986 ILR (MAD) 113 (iii)1994 AIR SCW 237 (iv)2001 SAR (CIVIL) 778 (v)2001 SAR (CIVIL) 258 (vi)2001 (2) An.W.R. 358 (D.B.) (A.P.) (vii)AIR 2001 Kerala 184 9. The lower appellate Court, upon perusal of the pleadings and the material on record, has framed two points for consideration, 1. Whether the judgment and decree of the lower Court in O.S.No.897 of 1998, dated 08.10.2001, has to be set aside and consequently, the appeal has to be allowed? 2. To what relief, the appellants/plaintiffs are entitled to? 10. Holding that there is no infirmity in the judgment and decree of the trial Court, the lower appellate Court has confirmed the decision made in the suit. Being unsuccessful in their claim for partition in both the Courts, the plaintiffs have filed the present second appeal, which has been entertained on the following substantial questions of law: (1) Whether the Courts below committed error relating to the marking of documents Ex.D14 namely copy of the Will without examination of the witnesses attested in the Will in conforming with the provision under Section 63 of the Indian Succession Act? https://hcservices.ecourts.gov.in/hcservices/ (2) Whether the production of the copy of the Will marked as Ex.D14 is valid in the absence of production of the original will as a primary documents under the provisions of the Indian Evidence Act under Section 63? (3) Whether the Courts below committed error without proof and validity of the relinquish deed, Ex.D7, dated 20.05.1958 and D13, dated 17.03.1958 in the absence of the original marked without examination of any witnesses in support and proof of the document? 11. Assailing the correctness of the judgments and decrees of the Courts below on the substantial questions of law, learned counsel for the appellants/plaintiffs submitted that the 1st appellant's husband, namely, Selvaraj, who predeceased his father, is the eldest son of Annamalai Mudaliar and respondents/defendants 1 to 3, 5 & 6 are also sons of Annamalai Mudaliar and younger brothers of 1st appellant's husband, Selvaraj. 4th respondent/defendant is the younger sister of the 1st appellant's husband. Late Annamalai Mudaliar, was engaged in building construction work. Mr.Selvaraj, 1st appellant's husband, eldest son, was also working along with him as a carpenter and contributed his earnings to his father, Annamalai Mudaliar, who was the Kartha of all the properties. 12. Placing reliance on Exs.B3 and B4, vide Document Nos.37 and 1061 of 1958 on the file of the Sub-Registrar, Kodambakkam, learned counsel for the appellants/plaintiffs further submitted that the late Annamalai Mudaliar, had disposed of ancestral properties and self acquired properties situated in the native place, at Narthampundi Village and purchased the suit properties and constructed a house at Choolaimedu at Chennai, and therefore, the plaintiffs, wife and daughter of the said Selvaraj, have a right to seek for partition of their share. She also submitted that Mrs.Loganayaki Ammal, W/o. Late Annamalai Mudaliar, the 1st defendant, who died during the pendency of the suit, was only a house wife and that she has no source of income to purchase the suit Item No.2, in her name and therefore, both the Courts below have failed to advert to the abovesaid aspect in proper perspective and in such circumstances, the second item of the suit property has been purchased by Annmalai Mudaliar, only out of the sale proceeds of the ancestral properties. In this context, she also invited the attention of this Court to the oral testimony of the 1st respondent, wherein, he has admitted that there was no https://hcservices.ecourts.gov.in/hcservices/ recital in Ex.B2 to the effect that the property, Suit Item No.2, was purchased from her own income. 13. Learned counsel for the appellants/plaintiffs further submitted that the Will has to be proved in the manner set out under the provisions of the Evidence Act. She further submitted that though Ex.B14, Photocopy of the Will, was sought to be marked, despite objections, the same was admitted as evidence and placing reliance on the recitals contained in the unprobated Will, both the Courts below have erred in giving credence to the Will, which was not proved, by examining any witness. No evidentiary value can be attached to the Will and that therefore, the contention of the defendants, that they have acquired exclusive right and interest, over the suit items 1 and 2, on the basis of an unprobated will, ought to have been rejected, at the threshold. 14. She also invited the attention of this Court that at the time of filing of the written statement, the defendants had contended that the probate proceedings were only at the initiation state that the O.P., for the grant of letters of administration, was not even numbered. She further submitted that both the Courts below have erred in marking a xerox copy of the settlement deed, attested by the Sub-Registrar, which is not admissible in evidence. 15. Learned counsel for the appellants/plaintiffs further submitted that the Courts below have erred in giving weightage to Ex.B7, dated 20.05.1958, relinquishment deed, said to have been executed by the 1st plaintiff's husband, without considering its validity and making Ex.B13, dated 17.03.1958, in the absence of production of its original and that examining any witnesses to prove the same, is an error committed by the lower Court. She further submitted that the alleged relinquishment deed executed by the 1st plaintiff's husband, would not bind his legal heirs, who have a substantial right in the suit properties purchased out of the sale proceeds of the ancestral properties. It is her further contention that the lower appellate Court has failed to consider that documents, Exs.B1 to B14 and B17, were only copies and that no explanation or reason was given for non-production of the originals. In support of the above submissions, reliance has been placed on the following judgments, (i)Ramagopal v. Muthukrishna [AIR 1957 Mad. 1] (ii)P.R.Nallathambi Goundan v. Vijaya Raghavan [AIR 1973 Mad. 25] (iii)Kalyan Singh v. Chhoti [AIR 1990 SC 396] (iv)Govt., of A.P., v. Karri Chinna Venkata Redy [AIR 1994 SC https://hcservices.ecourts.gov.in/hcservices/ 591] (v)Arul Migu Viswewaraswami and Veeraraghava Perumal Temple, Tirupur, v. Venkatachala Gounder [1996 (II) CTC 199] (vi)Cherichi v. Ittianam and others [AIR 2001 Kerala 184] 16. Per contra, Mr.V.Subramani, learned counsel for the respondents/defendants fairly admitted that at the time of filing of the suit, an Original Petition was filed in this Court, seeking for grant of letters of administration. He further submitted that even though, the plaintiffs have raised objections for rejecting the case of the defendants, on the basis of an unprobated will, executed by Annamalai Mudaliar, to and in favour of the defendants 2, 4 and 7, the judgments and decrees of the lower Courts can very well be sustained on the evidence, let in by the defendants to prove that suit Item No.1, was purchased by Annamalai Mudaliar, even before the sale of ancestral properties under Exs.B2 and B3. 17. He further submitted that the husband of the 1st plaintiff, Selvaraj, died in the year 1963 and that suit Item No.3, had been allotted by the Tamil Nadu Slum clearance Board, Chennai, after nearly 20 years, in favour of Annamalai Mudaliar and therefore, the contention of the appellants/plaintiffs that it has been purchased out of the sale proceeds of the ancestral properties and from the contribution made by the husband of the 1st plaintiff, is highly improbable. He also submitted that suit Item No.2, has been purchased by Mrs.Loganayaki Ammal, on 19.01.1951, from out of her own source, much earlier to the sale of the ancestral properties, which were sold in the years 1957 and 1958 and therefore, the claim of the appellants/plaintiffs is baseless. 18. On the question of receipt of the unprobated will, learned counsel for the respondents submitted that the same was received, subject to the objections, but nevertheless, the respondents/defendants, by letting in sufficient evidence, have proved that none of the suit items were purchased out of the sale proceeds of the ancestral properties and therefore, Mr.Annamalai Mudaliar and his wife, Mrs.Loganayaki Ammal, have every right to dispose of the property, as per their desire. 19. On the aspect of receiving Ex.B7, Release Deed, dated 20.05.1958, executed by the husband of the 1st plaintiff, learned counsel for the respondents submitted that there was no serious objections for the same and that therefore, it is not open to the plaintiff to raise a substantial question of law in this https://hcservices.ecourts.gov.in/hcservices/ appeal. It his further contention that whatever rights, the husband of the 1st plaintiff, had in the ancestral properties, on his own volition, he had executed a release deed, after receiving a sum of Rs.800/-, commensurate to his share and that therefore, the plaintiffs cannot seek for any partition. It is therefore submitted that the well considered judgments and decrees of the lower Court do not require any interference. Heard the learned counsel for the parties and perused the materials available on record. 20. Before adverting to the issues raised, let me consider some of the decisions on the aspect of burden and the proof, that is required by the propounder of a case that properties have been purchased from out of the sale proceeds of a joint family property. (i) In Babubai v. Ujamlal, AIR 1937 Bom. 446 where Beaumont, Chief Justice had summarised the position on this aspect as follows:- "The law, I think, is clearly established that from the existence of a joint family, it is not to be presumed that there is any joint family property. There is no presumption that property which belongs to a member of a joint family is joint family property. The plaintiff in setting out to prove that property 'B' is joint family property must in the first instance discharge the burden of proving that fact. But it is also established that if there is a joint family, which possesses a nucleus of joint family property, then property acquired by a member of that family is presumed to be a joint family property. But the question arises what is meant by a nucleus. In my opinion the nucleus of joint family property necessary to give rise to the presumption must be family property from which the purchase money for the property in suit might have been derived wholly, or, 'at any rate, in considerable part.....'. It would, I think, be unfortunate if the Court was bound to presume that something had occurred which on the evidence would not possibly have occurred, and if it be shown that the only joint family property existing at the date of the acquisition of the property in suit was of such a nature that it could not possibly have been the means of acquiring the property in suit, then in my opinion the presumption that the property in suit is joint https://hcservices.ecourts.gov.in/hcservices/ family property does not arise." (ii) In Narayanaswami Iyer v. Ramakrishna Iyer 1965 (I) MLJ (SC) 78 the Supreme Court stated the law on the subject as follows:- "The legal position is well-settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown." (iii) In Nagayasami Naidu v. Kochadai Naidu reported in 1970 (I) MLJ 105, it has been held as follows: "There is an essential distinction as to the scope of the presumption in the case of acquisitions in the names of male members of a joint family and the female members of a joint family. In the case of male members of a joint family, there is a presumption that if the joint family had sufficient ancestral nucleus, (italics mine) the properties standing or acquired in the name of junior members are joint family properties unless the presumption is rebutted by showing that the properties are the separate properties of the particular member or members in whose names the properties stand or were acquired. There is no such presumption in the case of properties standing in the name female members. In the latter case, it is for the party who claims properties as joint family properties to specifically plead the particulars and details, in the pleadings and establish the same, by adducing necessary evidence. If there is no pleading and if on the side of the plaintiffs there is no evidence, there is no need for detailed scrutiny of the case of the female members or persons claiming through them, as to the resources of the female members and as to how they acquired the properties in question. If the plaintiff on whom the burden lies adduces no evidence, no further question arises and the female member in whose name the property stands, must be held to be the beneficial owner of the property in question." (iv) In Srinivasan v. Sundaramurthi reported in 1972 (I) MLJ 141, a Division Bench of this Court held as follows:- "It is well established that if the https://hcservices.ecourts.gov.in/hcservices/ property stands in the name of the 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 coparcener." (v) In M.Narisimhan v. The Deputy Registrar of Co- op. Societies, reported in 2003 (1) CTC 327, presumption of the joint family property would arise in such case, only when ancestral nucleus is established. Properties purchased from and out of exclusive fund of the person would be self-acquired property. (vi) In R.Deivanai Ammal v. G.Meenakshi Ammal reported in 2004 (4) CTC 208, this Court, at Paragraphs 14 to 16, held as follows: “14. The doctrine of blending of self- acquired property with joint family has to be carefully applied with reference to the facts of each case. No doubt it is settled that when members of a joint family by their joint labour or in their joint business acquired property, that property, in the absence of a clear indication of a contrary intention, would be owned by them as joint family property and their male issues would necessarily acquire a right by birth in such property. But the essential sine qua non is the absence of a contrary intention. If there is satisfactory evidence of an intention on the part of the acquirer such property to treat it as his own, but not as joint family property, the presumption which ordinarily arises, according to the personal law of Hindus that such property would be regarded as joint family property, will not arise. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 16. In a Hindu joint family, if one member sues for partition on the foot that the properties claimed by him are joint family properties then three circumstances ordinarily arise. The first is an admitted case when there is no dispute about the existence of the joint family properties at all. The second is a case where certain properties are admitted to the joint family properties and the other properties in which a share is claimed are alleged to be the accretions or acquisitions from the income available from joint family properties or in the alternative have been acquired by a sale or conversion of such available properties. The third head is that the properties standing in the names of female members of the family are benami and that such a state of affairs has been deliberately created by the manager or the head of the family and that really the properties or the amounts standing in the names of female members are properties of the joint family. While considering the term 'nucleus' it should always be borne in mind that such nucleus has to be established as a matter of fact and the existence of such nucleus cannot normally be presumed or assumed on probabilities. The extent of the property, the income from the property, the normal liability with which such income would be charged and the net available surplus of such joint family property do all enter into computation for the purpose of assessing the content of the reservoir of such a nucleus from which alone it could, with reasonable certainty, be said that the other joint family properties have been purchased unless a strong link or