IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.10.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.74 of 1997 and C.M.P.No.940 of 1997 1.Nanja Reddy (deceased) 2.Basamma (deceased) 3.Savithriamma 4.N.Jayarama Reddy 5.N.Prasad Reddy 6.N.Seenivasa Reddy ... Appellants/Plaintiffs (Appellants 3 to 6 are brought on record as legal representatives of the deceased 1st appellant vide order dated 05.11.2004 in C.M.P.No.455 of 2004) Vs. 1.Ramappa Naidu 2.Krishnappa Naidu 3.Chandrappa Naidu 4.Venkatasamy Naidu 5.Chennamma ..Respondents/Defendants 2 to 5 & 7 (R-5 Expare in Lower Court) Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 27.9.1996 in A.S.No.75 of 1996 on the file of the Sub Court, Hosur, confirming the Judgment and Decree dated 22.08.1995 in O.S.No.68 of 1980 on the file of the District Munsif, Hosur. For Appellants : Mrs.P.Veena For M/s.T.R.Rajaraman For RR 1 to 4 : Mr.V.Raghavachari J U D G M E N T The Appellants have filed the present Second Appeal as against the Judgment and Decree dated 27.09.1996 in A.S.No.75 of 1996 on the file of the Learned Sub Judge, Hosur. https://hcservices.ecourts.gov.in/hcservices/ 2.The First Appellate Court, viz., the Learned Sub Judge, Hosur, while passing Judgment in A.S.No.75 of 1996, has, among other things, observed that 'it is not to be known that the Plaintiffs are in enjoyment of the suit properties as one property and on the basis of Commissioner's Report and Plan, the Plaintiffs are not entitled to get the relief of permanent injunction and further that the Plaintiffs have not proved that they are in separate enjoyment of the suit properties.' 3.Also, the First Appellate Court has opined that 'as far as the present case is concerned, the partition mentioned by Defendants 1 to 5 have been held to be true and therefore, the other Defendants have got a right to sell it to the 1st Defendant which cannot be injuncted by the Plaintiffs and all the more since Venkata Reddy possessed only 8 acres of punja land and each to their share has got 4 acres in partition, as seen from the oral evidence and further that it is not established that Venkata Reddy has separate income etc., and as such, it cannot be construed that from the income of 4 acres of ancestral property, the properties have been purchased and in the instant case on hand, the averment that 40 years ago a partition has taken place between the 1st Plaintiff's father and the 1st Defendant has not been proved and that the Plaintiffs have not approached the Court with clean hands and resultantly, allowed the Appeal by setting aside the Judgment and Decree passed by the trial Court in the main suit and dismissed the suit, leaving the parties to bear their own costs.' 4.Before the trial Court, in the main suit, 1 to 6 issues have been framed for adjudication. On the side of the Plaintiffs, witnesses P.W.1 to P.W.4 have been examined and Exs.A.1 to A.20 have been marked. On the side of Defendants, witnesses D.W.1 to D.W.3 have been examined and Exs.B.1 to B.7 have been marked. Also, Ex.C.1- Commissioner's Report and Ex.C.2-Plan have been marked. 5.The trial Court, on an appreciation of oral and documentary evidence available record, while passing the Judgment in O.S.No.68 of 1980, has come to the resultant conclusion that 'in respect of suit properties in Survey No.903/1, 903/2, 906/2, 579 and Survey No.580 the Plaintiffs are entitled to the relief of declaration and in respect of the other lands, it has dismissed the suit without costs. 6.At the time of admission of the Second Appeal, the following substantial questions of law have been framed by this Court. (a)Whether the lower appellate court has considered the principle that in order to constitute a joint family, they ought to have been acquired from a nucleus which is sufficient and adequate to have the later acquisitions, in additions to joint family properties already in existence? (b)When it is incumbent upon the defendants, who assert that the suit properties were acquired out of joint family https://hcservices.ecourts.gov.in/hcservices/ property to establish it is the learned Subordinate Judge correct in shifting the burden on the plaintiff? Contentions, Discussions and Findings on substantial questions of law 1 and 2: 7.According to the Learned Counsel for the Appellants, the trial Court ought to have decreed the suit as the Respondents/Defendants have failed to prove the alleged partition between the Plaintiffs father and their father and further, the trial Court has committed a mistake in coming to the conclusion that there has been a partition between the Plaintiffs and Defendants fathers based on the boundary description of Ex.A.1-Sale Deed dated 09.04.1952, Ex.A.2-Sale Deed dated 04.07.1952 and Ex.A.9-Sale Deed dated 05.04.1952. 8.Advancing her arguments, the Learned Counsel for the Appellants submits that when Ex.A.1-Sale Deed dated 09.04.1952, Ex.A.2-Sale Deed 04.07.1952 and Ex.A.9-Sale Deed dated 05.04.1952 pertaining to suit Item No.5 gives the definite southern boundary as belonging to Venkata Reddy the mistake in describing the southern boundary of Item No.5 in the plaint as belonging to the deceased 1st Defendant will not prevail over the registered document and moreover, the trial Court is not correct when it has presumed that there has been a partition only after the year 1952 between the Plaintiffs father and 1st Defendant based on the discrepancy in the description of the southern boundary in Item No.5 of the suit property. 9.The Learned Counsel for the Appellants urges before this Court that when Exs.A.1 to A.9-Sale Deeds relating to Item Nos.1 to 5 of the suit properties are purchased in the individual name of Plaintiffs father, the burden of proving that they have been purchased in the name of Plaintiffs father only as Manager of the joint family lies on the Defendants and the Respondents/Defendants on their failure to prove that the purchases have been made on behalf of the joint family, the trial Court should have decreed the suit. 10.On the side of Appellants/ Plaintiffs, a plea has been raised to the effect that the trial Court has committed an error in coming to the conclusion that the suit properties have been purchased only as joint family properties as the properties stand in the name of Plaintiffs father, who is the elder member of the family and also the fact that the Plaintiffs have not been cultivating the land for more than three years, it cannot be a basis to hold that they have not been in possession of the property. 11.Lastly, it is the contention of the Learned Counsel for the Appellants that the finding of the trial Court that Plaintiffs father could not have purchased the suit properties out of the income from the 4 acres, he got out of partition is not a correct one and it is for the Plaintiffs to prove the surplus income through which the https://hcservices.ecourts.gov.in/hcservices/ other properties have been acquired, notwithstanding the fact that the 1st Respondent/1st Defendant (deceased) was a junior member, but in short, the material facts of the case have not been adverted to by the trial Court in a proper perspective, which has resulted in the impugned Judgment being passed against the Appellants and therefore, prays for allowing the Appeal. 12.In response, the Learned Counsel for the Respondents/ Defendants supports the Judgment and Decree passed by the First Appellate Court in A.S.No.75 of 1996 and submits that the First Appellate Court has rightly come to the conclusion, upon analysing the oral and documentary evidence on record adduced by the parties, that it is not established by the Plaintiffs that they have been in enjoyment of the suit properties separately and the partition pleaded by the Defendants 1 to 5 has been held to be true and therefore, Defendants 2 to 5 have a right to sell the property to the 1st Defendant (since deceased) and as such, the Appellants are not entitled to obtain any relief in the suit and further, the Appeal filed by the Appellants/ Defendants 2 to 5 allowed by the First Appellate Court in reversing the Judgment and Decree of the trial Court may not be disturbed by this Court at this stage of the Second Appeal. 13.In support of the contention that it is for the individual who asserts that a particular property is a joint family property to establish that fact, the Learned Counsel for the Appellants cites the decision of Honourable Supreme Court Mst.Rukhmabai V. Lala Laxminarayan and others AIR 1960 Supreme Court 335 wherein it is held as follows: "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 definement 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 that 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 prima facie a document clearly expressing the intention to divide brings about a divison in status, it is open to a party to prove that the said document was a sham or a nominal one not https://hcservices.ecourts.gov.in/hcservices/ intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether moveable or immoveable, 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." 14.She also seeks in aid of the decision of Honourable Supreme Court Makhan Singh (dead) by LRs. V. Kulwant Singh (2007) 10 SCC 602 at page 603 wherein it is laid down as follows: "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 interference of the High Court in second appeal should be clearly minimal and would not extend to a mere reappraisal of the evidence. Therefore had the High Court on an appreciation of the evidence, taken a view different from that of the trial court and the first appellate court, the exercise would have been clearly unjustified. However, the High Court has not made a simpliciter reappraisal of the evidence to arrive at conclusions different from those of the courts below, but has rightly corrected an error as to the onus of proof on the existence or otherwise of a joint Hindu family property. There is no evidence to prove that the property was joint family property save a self- serving and stray sentence in the statement of https://hcservices.ecourts.gov.in/hcservices/ the defendant that the property had been purchased from the income of the joint Hindu family. The defendant had denied the execution of the two sale agreements at the initial stage, but faced with a difficult situation had later admitted that the agreements had been executed, leading to a finding by all three courts below to that effect. There is also a clear recital by the defendant that the property belonged to him and specific boundaries of the property were also given therein. The defendant's statement had also been recorded by the Sub-Registrar wherein he stated that he was ready to execute the sale deeds but the plaintiff had not appeared to do so. Likewise, in the original written statement a case of denial of the execution of the agreements had been pleaded and it was only by way of an amendment that the plea that the property belonged to the joint Hindu family had been raised." 15.The Learned Counsel brings it to the notice of this Court to the decision Ranganayaki Ammal and others V. S.R.Srinivasan and others 1978 (1) MLJ 56 (DB) whereby and whereunder it is held thus: "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 the properties or the amounts standing in the names of female members are properties of the joint family. It is by now well established that properties standing in the names of the female members are their own unless there is definite clinching proof to the contrary adduced by the challenging member. It is not for the female member to prove how she acquired the same. In ordinary cases also where a plea of https://hcservices.ecourts.gov.in/hcservices/ benami is set up it is for the person who comes to Court to establish that the properties standing in the name of the other co-parceners or members are joint family properties which stemmed from the joint family nucleus. 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 nexus is established between the available surplus income and the alleged joint family properties. The person who comes to Court with such bare allegations without any substantial proof to back it up should fail. The burden is very heavy on the plaintiff to establish the existence of joint family nucleus. The mere lapse of time will not relieve him from discharging his obligation. The march and passage of time cannot be taken advantage of by the challenging coparcener and this by itself would not enable him to relieve himself of his legal duty to prove the obvious, namely, that the family was possessed of funds and there was sufficient joint family nucleus from which the further accretions were made by the member managing the same." 16.On the side of the Appellants/Plaintiffs, reliance is placed to the decision Munesh Kumar Agnihotri and others V. Lalli Prasad Gupta since deceased by LRs. and others AIR 1989 Allahabad 202 at page 206 wherein it is held hereunder: "The lower appellate Court rightly held that in law there is no presumption that a Hindu joint family is possessed of joint funds and the onus lay on the one who claims that the business was started with the joint family funds, to prove so." https://hcservices.ecourts.gov.in/hcservices/ 17.Besides the above, the Learned Counsel for the Appellants cites the decision Abdul Aziz Chaudhury and others V. Barindra Kumar Das and others AIR 1957 Assam 115 wherein it is observed as follows: "Where a member of a joint Hindu family comes forward with a claim that the purchase of the property by another member though in his own name alone was made by him as a karta, with the family funds, the onus of establishing that there was nucleus with the income of which the property could have been acquired would be on him." 18.Further, the Learned Counsel for the Appellants draws the attention of this Court to the decision of Honourable Supreme Court Srinivas Krishnarao Kango V. Narayan Devji Kango and others AIR 1954 S.C. 379 & 380 wherein it is held as follows: "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. AIR 1947 PC 189 (192), Relied on. 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 from 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. https://hcservices.ecourts.gov.in/hcservices/ 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 even 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 were 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. AIR 1947 PC 189, Relied on." 19.P.W.1 (deceased 1st Plaintiff), in his evidence, has deposed that his father Venkata Reddy and maternal uncle the 1st Defendant (since deceased) have 50 years ago orally partitioned the ancestral properties and after the partition, the 1st Defendant (since deceased) and his mother Pinnamma have gone to the village and after the partition, his father has purchased some items of property as a acquisition one and has purchased some properties in two survey numbers from Denkanikottai Iyer and 40 years have elapsed after purchasing of the said properties and his father from Pillareddy has purchased one property in Survey No.906 from Pillareddy. 20.It is the further evidence of P.W.1 that his father has purchased the property from Pillareddy Arijan Thimmayya, Palakari Adaikalappan, Sourappa, Muthappa and he is not aware of some survey numbers and Ex.A.1 is the Sale Deed dated 09.04.1952 in respect of property purchased by his father from Petha Venkatappa, Chinna Venkatappa, Munusamy and Ex.A.2 is the Sale Deed dated 04.07.1952 executed by one Podiappa in favour of his father in respect of a property and Exs.A.3 to A.8 are the Sale Deeds in respect of properties purchased by his father from the concerned persons and Ex.A.9 is the Sale Deed dated 05.04.1952 in and by which his father has purchased a property from Venkata Ramayya and Ex.A.10 is the loan document for Rs.600/- and his father before availing the loan has executed pronotes in favour of some persons and has purchased the https://hcservices.ecourts.gov.in/hcservices/ properties on obtaining the loan and his father has also paid the loan amounts and got back the pronotes and kept the same in his house and after the death of his father, the pronotes have come to his hands and one Patsakshipuram Munsif Siddareddy, Anumaiya, Machinayakkanpalli Seluva Iyangar are the persons in whose favour his father has executed pronotes which is Ex.A.11 series. 21.The evidence of P.W.1 is to the effect that the person who has executed the pronote and the persons in whose favour the pronotes have been executed are no more and in respect of suit properties patta stands in the name of his father, mother Basamma and in his name and the pattas are Ex.A.12 series and the tax receipts paid in respect of the suit properties are Ex.A.13 series (48 numbers). Also, the evidence of P.W.1 is to the effect that his father has sold 13 cents in Survey Nos.903/1, 903/2 to one Ramayya as per Ex.A.14. 22.Continuing further, it is the evidence of P.W.1 that Siddareddy has filed a case against his father because his father has not paid the money and he has discharged loan of his father and a receipt for the said discharge is Ex.A.15 and Ex.A.16 is the Sale Deed dated 20.12.1952 executed by his father in favour of Munusamy Reddy in respect of 13 cents in Survey No.903/1 and Ex.A.17 is the Sale Deed dated 31.12.1979 executed by the 1st Defendant in favour of Defendants 2 and 3 and Ex.A.18 is the Sale Deed dated 31.12.1952 executed by the 1st Defendant in favour of the Defendants 4 and 5 and Ex.A.19 is the notice dated 26.10.1978 issued by him to the 1st Defendant and another notice dated 09.01.1979 is Ex.A.20 and that the Defendants have no right in respect of the suit properties either on the basis of Sale Deeds or on ancestrally basis and therefore, he has filed a suit for injunction praying for the relief of restraining the Defendants 2 to 5 not to enter into the suit properties. 23.P.W.1 (in his cross examination) has deposed that Survey Nos.869, 870, 871, 872 are ancestral properties and that the 1st Defendant has not produced documents for selling the properties and that he claims right in Survey No.903/1 measuring an extent of 1 acre and 20 cents and further that in Survey No.903/2 his father has a right to an extent of 2 acres and 20 cents and in this 80 cents to Nanja Reddy and 13 cents to Rame Goudu, 13 cents to Munusamy have been sold and in Ex.A.20 he has admitted the boundary as Nanja Reddy land