IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 17.09.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.Nos.541 and 954 of 1993 A.S.No.541 of 1993 1. Prabhakaran 2. Salem Textiles Limited by its Managing Director Prabhakaran .. Appellants/Defendants 5 to 6 vs. 1. Ranganathan 2. Mathivanan 3. Ramasami Padayachi 4. Sellammal 5. Shanmugam 6.Paramasivam .. Respondents/Plaintiffs 1 and 2nd Defendants 1 to 4. A.S.No.954 of 1993 1. Ranganathan 2. Mathivanan .. Appellants/Plaintiffs vs. 1. Ramasami Padayachi 2. Sellammal 3. Shanmugam 4. Paramasivam 5. Prabhakaran 6. Salem Textiles Limited by its Managing Director Prabhakaran .. Respondents/Defendants Appeals against the judgment and decree of the learned Subordinate Judge, Salem passed in O.S.No.873 of 1984 dated 25.06.1992. For appellants in : Mr.V.Srinivasan A.S.No.541/1993 and for respondents 5 & 6 in A.S.No.954/1993 https://hcservices.ecourts.gov.in/hcservices/ For respondents 1 & 2 : Mrs.P.Veena for in A.S.No.541/1993 and Mr.T.R.Rajaraman for appellants in A.S.No.954/1993 JUDGMENT These appeals are focussed as against the judgment and decree dated passed by the learned Subordinate Judge, Salem in O.S.No.873 of 1984 dated 25.06.1992, which is one for partition. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. The portrayal and parodying of the case of the plaintiff as stood exposited from the plaint, quintessentially and briefly could be set out thus: The plaintiffs 1 and 2 and the defendants 3 and 4 are the sons of the couple D1 and D2. The first item of the suit properties was obtained by D1 from his co-sharer in an oral partition. From out of the income derived from the joint family nucleus, the other items of the properties, viz., item Nos.2 and 3 were acquired by the co- parcenery of D1 and his four sons. It so happened that the third item of the suit properties was purchased in the name of D4 from out of the income generated from the joint family nucleus. While so, D4 sold the third item of the suit properties in favour of D6 Corporation viz., Salem Textile Corporation represented by D5, the Managing Director. Accordingly, the plaintiffs prayed for partition and allotment of their 1/5 th share each in all the items of the suit properties in favour of them. 3. D1 filed the written statement, which was adopted by D2, in support of the case of the plaintiffs and further supplemented by pointing out that the defendants 3 and 4 had fallen a prey to D5's trick and D4 sold the third item of the suit properties taking undue advantage of the fact that the property stood in D4's name, even though it was purchased from out of the joint family funds. Accordingly,he prayed for decreeing the suit as prayed for by the plaintiffs. 4. D3 and D4 remained exparte. 5. Remonstrating and refuting, challenging and gain saying, the allegations/averments in the plaint, D5 filed the written statement, the gist and kernel of it would run thus: https://hcservices.ecourts.gov.in/hcservices/ The third item of the suit properties was not purchased by D4 from out of the income derived from the joint family nucleus as alleged in the plaint but, it happened to be the exclusive property of D4, who validly executed the sale deed in favour of D6 represented by D5. In fact, D1 and D3 attested the sale deed. Earlier one, Periasami Naicker claiming to be the owner of the third item of the suit properties filed the suit in O.S.No.181 of 1980 before the District Munsif Court, Athur as against D4 and D4's predecessor-in- title for declaration and injunction, which was dismissed. Subsequently, D4, D5 and D6 filed the suit in O.S.No.55 of 1980 as against the said Periasami for injunction. The sale executed by D4 in favour of D6 was for a valid consideration of Rs.41,000/- and after such purchase, D5 and D6 had put up a pucca factory building by investing huge amount. Accordingly, he prayed for the dismissal of the suit with regard to the third item of the suit properties. 6. D6 filed the written statement separately on the same line as that of the written statement filed by D5. 7. The trial Court framed the relevant issues. During trial, the second plaintiff examined himself as PW1 along with PW2 and Exs.A1 to A21 were marked and no one was examined on the side of the defendants and no document was also marked. Exs.C1 and C2 were marked as Court documents. 8. The trial Court ultimately decreed the suit in respect of item Nos.2 and 3 of the suit properties by observing that during final decree proceedings, the shares of D3 and D4 might be adjusted to the extent possible on equity basis towards the third item of the suit properties and the same shall be allotted to D6. Regarding item No.1, in clause (3) of the decree, the trial Court observed that the plaintiffs are entitled to 2/5 th share at the rate of 1/5 th share each in the first item of the suit properties and the same could be allotted only after the impleadment of D1's brother during final decree proceedings. 9. Being aggrieved by and dissatisfied with the judgment and the preliminary decree of the trial Court, the plaintiffs as well as D5 and D6 filed two separate appeals as under: The pith and marrow of the grounds of appeal (A.S.No.954 of 1993) as found set out by the plaintiffs would run thus: (i) Ignoring the fact that the defendant Nos. 5 and 6 in a nonchalant and cavalier fashion indulged in raising construction at their whims and fancies and that too, https://hcservices.ecourts.gov.in/hcservices/ inspite of the injunction order, the trial Court simply enabled the defendants 5 and 6 to workout their equity during final decree proceedings by claiming equitable right over the third item of the suit properties as D6 purchased the share of D4 with the assistance of D3. (ii) D5 and D6 are not entitled to any equities. (iii) The trial Court was not justified in postponing the allotment of shares in respect of the first item of the suit properties. 10. The nitty gritty of the grounds of appeal (A.S.No.541 of 1993) as found set out by D5 and D6 would run thus: (i) The trial Court instead of applying the law properly and holding that the onus of proof was on the plaintiffs to prove that the third item of the suit properties was in fact, purchased in the name of D4 from out of the joint family nucleus, simply assumed and presumed as though it happened to be the joint family property. (ii) The trial Court failed to appreciate the fact that D4 was in exclusive possession and enjoyment of the third item of the suit properties before alienating it in favour of D5 and D6. 11. For adjudicating both the appeals, the following points arise for consideration: (i) whether the third item of the suit properties was the exclusive property of D4 or it was purchased from out of the income derived from the joint family nucleus? (ii) Whether the trial Court's verdict that D6 is entitled to work out its equity based on the purchase made by it from D4 relating to the third item of the suit properties is tenable? (iii) Whether the trial Court was justified in postponing the allotment of shares to the plaintiffs relating to the first item of the suit properties? (iv) Whether there is any infirmity in the judgment and decree of the trial Court? https://hcservices.ecourts.gov.in/hcservices/ 12. Heard the learned counsel appearing on either side. Point Nos.1, 2 and 3 : 13. These points are taken together for discussion as they are inter-woven and inter-linked with one another. 14. Animadverting upon the method and manner in which, the trial Court adjudged, that the third item of the suit properties happened to be the joint family property, the learned counsel for the appellants/D5 and D6 would develop his argument that the onus of proof was on the co-parceners to establish that there had been a joint family nucleus and that too, income generating joint family nucleus and from out of that the third item of the suit properties was purchased by the co-parceners in the name of D4. But absolutely, there is no exiguous or miniscule extent of evidence to prove the same. Whereas the learned counsel for the plaintiffs would correctly and appropriately torpedo the argument of the learned counsel for D5 and D6, by drawing the attention of this Court to the fact that D4 was only an agriculturist; he had no independent source of income; except the joint family nucleus,viz., the first item of the suit properties, the co-parcenery family had source of income and the trial Court was right in holding that all the three items of the suit properties happened to be the joint family properties. 15. At this juncture, my mind is reminiscent with the various decisions of the Hon'ble Apex Court. (i) AIR 1954 SC 379 (Srinivas Krishnarao Kango vs. Narayan Devji Kango and others). An excerpt from it would run thus: "8. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established 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 burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. https://hcservices.ecourts.gov.in/hcservices/ 10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. Where the finding of the Courts is that the income from the ancestral lands was not sufficient even for the maintenance of the members, and the houses in dispute are substantial, burden is on the plaintiff who alleges the houses to have been acquired out of joint family funds, to establish it. Held that if the contention that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds,that burden had been discharged. Likewise, it was held that since the ancestral Watan lands are intact, and were available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family, whether it were held that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result was the same." The aforesaid decision would unambiguously highlight the point that in order to prove that the property is the joint family property, there should be evidence to show that there was joint family nucleus and income was arising out https://hcservices.ecourts.gov.in/hcservices/ of it so as to enable the joint family to purchase additional properties and that the burden of proof is on the person, who pleads that even though the property might stand in the name of one of the co-sharers, nonetheless, it belongs to the joint family. Undoubtedly, this case should necessarily be analysed in the light of the dictum set out in the cited decision. (ii) An excerpt from the decision reported in AIR 1960 SC 335 (Rukhmabai vs. Lala Laxminarayan and others), would run thus: "5. There is a presumption in Hindu law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called “division in status”, or an actual division among them by allotment of specific property to each one of them which is described as “division by metes and bounds”. A member need not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though primafacie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property." (iii) An excerpt from the judgment rendered by the Division Bench of this Court reported in MLJ (II) 1976 225 ((Pattusami Padayachi vs. Mullaiammal and others, would run thus: https://hcservices.ecourts.gov.in/hcservices/ "18. The properties purchased by one or other of the members of a co-parcenery or joint family when the family is joint cannot as a matter of course be treated as joint family property. The co-parcener who challenges such title in the member and pleads that they should also be brought to the hotch-pot ought to establish by cogent and mature evidence that there was enough surplus income which was available in the joint family and which positively could be the foundation for such annexures made by one or the other of the members of the joint family. In all cases definite proof is required that the further purchase in the names of joint family members ought to have been made and could not have been made otherwise than from the surplus income of the family. For a greater reason the rule is made strict in the case of properties in the name of female members. The fact that a female member in a joint family has properties in her own name would not necessarily lead to the conclusion that the origin of such properties should be traced to the joint family or to the income from the joint family, inasmuch as the stridhanam property of a female and possession of property by her have been recognised from ancient times." (iv) Yet another decision is reported in MLJ (1) 1978 56 (Ranganayaki Ammal and others vs. S.R.Srinivasan and others). A mere perusal of those decisions would unambiguously and unequivocally highlight the point that the onus of proof, no doubt is on the co-parcener, who pleads that the property is the co-parcenery property. But, here even though the first item of the suit properties stands in the name of one of the co-parcenery family, nonetheless, it belongs to the co-parceners, as it was purchased from out of the income generated from the joint family nucleus. 16. At this juncture, it has to be seen as to whether the plaintiffs had discharged their burden of proof. 17. On the plaintiffs side, P2 examined himself as PW1 along with one Pandian an elderly person of that locality, in order to buttress and fortify their plea. Over and above that on the plaintiffs' side Exs.A1 to A14 sale deeds were relied on for the purpose of proving that the first item of the suit properties happened to be the joint family property. There is no quarrel over the factual proposition as put forth by the plaintiffs that the first item of the suit properties happened to be the joint family property of D1 and his four sons. It is also the categorical case of the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs that in a partition, which emerged between D1 and his brother, the first item of the suit properties was allotted to D1. Absolutely, there is no quarrel over such a factual proposition. However, I am at a loss to understand as to how the Court itself could develop a doubt in that regard and postpone the partition of the first item of the suit properties to the final decree stage, for the purpose of enabling the plaintiffs herein to implead the brother of D1 also. I would like to highlight and spotlight the fact that judgment passed in case of this nature is only judgment in personam and not in rem. If at all, D1's brother is aggrieved, it is always open to challenge the partition by instituting separate proceedings and at that time, it is for the plaintiffs here to face it. The Court cannot call upon the plaintiffs to implead new parties which is not in concinnity with the plaint averments. The plaintiff is dominus litus and the plaintiffs herein have chosen to come forward with a set of facts to the effect that there was oral partition between D1 and his brother and that the first item of the suit properties was allotted to them and from out of the income generated from the joint family nucleus, the other items, viz.,item Nos.2 and 3 were purchased. The plaintiffs shall stand or fall on their own pleadings and the Court cannot also call upon them by way of ex abundanti cautela to implead D1's brother, when the plaintiffs themselves have not felt such need. Hence, in this view of the matter, I am of the considered opinion that clause 3 in the decree has to be deleted and instead the preliminary decree should also be one for allotment of share in the first item of the suit properties also. 18. There is one glaring fact, which is exfacie and prima facie comes to the forefront in this case, as D5 and D6 did not enter into witness box at all. 19. When a party shuns the witness box even though he or she was expected to figure as witness, then adverse inference could be drawn. No doubt, D5 might not be knowing about the details of the family of D1 and in such a case, D5 should have taken steps to summon D3 and D4 to figure as witnesses. In fact, D4 being the seller was duty bound to protect the purchaser's interest as there is warranty to that effect as per Transfer of Property Act. But in this case, curiously and peculiarly, no such step was taken by D5 and D6. The totality of the evidence available clearly demonstrates that absolutely D4 has no separate income of his own and on the other hand, the evidence on the side of the plaintiffs would clearly exemplify that the third item of the suit properties was purchased as per Ex.A21 from out of the joint family income alone and in such a case, the trial Court was right in its finding, which warrants no interference under that count. https://hcservices.ecourts.gov.in/hcservices/ 20. The learned counsel for the plaintiffs by drawing the attention of this Court to Ex.C1 and Ex.C2 the Commissioner's report and the sketch would develop her argument that a party who had no respect for Court order deserves no equity. I am fully aware of the popular adage "He who seeks equity must do equity and he who comes to equity must come with clean hands". Presumably, by placing reliance on that adage, the learned counsel for the plaintiffs would submit that the defendants 5 and 6 did not deserve any equity as it had been shown by the lower Court towards them. 21. I posed a question to the plaintiffs side as to whether there is any evidence on record to highlight that the plaintiffs are sentimentally attached to the third item of the suit properties. In fact, the third item of the suit properties was newly purchased by the joint family and it is not even a residential house. In such a case, I could see no infirmity in the decision taken by the lower Court in observing that the shares of D3 and D4 could be to the extent possible adjusted towards the extent purchased by D6 from D4. The reason for adding the share of D3 was that he attested the sale deed Ex.A21. There is some flutter over the fact as to whether D1 attested the sale deed Ex.A21 or not. 22. In view of my discussion supra, this Court is not very particular about the said fact as only the shares of D3 and D4 alone are ordered to be adjusted towards the share of D6 as far as possible and thereby only an implied recognition has been given to Ex.A21 and not on the basis that D4 had the right to execute the sale deed in respect of the third item as his self acquired property in favour of D6. 23. Accordingly, Point Nos.1,2 and 3 are decided to the effect that the third item of the suit property is not the exclusive property of D4 and the trial Court was justified in ordering equity in favour of D5 and D6 and the shares of the plaintiffs shall be allotted in first item also. Point No.4:- 24. In the result, the Appeal No.954 of 1993 is partly allowed to the effect that the plaintiffs 1and 2 are also entitled to 1/5 th share each in the first item of the suit properties, without there being any necessity to implead the brother of D1 during final decree proceedings. The rest of the judgment and decree of the https://hcservices.ecourts.gov.in/hcservices/ trial Court are confirmed. Consequently, the appeal A.S.No.541 of 1993 filed by D5 and D6 shall stand dismissed. However, there shall be no order as to costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar To The Subordinate Judge, Salem +1 cc to Mr.V.Srinivasan, Advocate, SR.No.52946 A.S.Nos.541 and 954 of 1993 SSV(CO) BK(6/11/2008) https://hcservices.ecourts.gov.in/hcservices/