1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM AS(MD)No.24 of 2011 and MP(MD)No.2 of 2011 K.T.Dharmaraja .. Appellant/Defendant Vs. Brahmajyothi .. Respondent/Plaintiff Appeal filed under section 96 of CPC against the Judgment and decree dated 19.03.2010 passed in Original Suit No.80 of 2006 by the Principal District Court, Virudhunagar District at Srivilliputhur. For Appellant : Mr.S.Ramesh For Respondent : Mr.M.Ashok Kumar JUDGMENT The Judgment and decree dated 19.03.2010 passed in Original Suit No.80 of 2006 by the Principal District Court, Virudhunagar District at Srivilliputhur are being challenged in the present Appeal Suit. 2. The respondent herein as plaintiff has instituted Original Suit No.80 of 2006 on the file of the trial Court for the reliefs of partition and separate possession of her half share, wherein the present appellant has been shown as sole defendant. 3. In the plaint it is averred that the defendant is the brother of the plaintiff. The parents of the plaintiff and defendant have passed away. The suit items 1 to 3 are the separate properties of the father of the plaintiff and defendant and he passed away in the year 1960. The mother of the plaintiff and defendant has managed the entire family properties with the assistance of her brother. Out of the income derived from the landed properties, the suit first schedule has been constructed. After the demise of the mother of the plaintiff and defendant, the defendant has been enjoying all the suit properties and now the defendant has been acting against the interest of the plaintiff. Under the said circumstances the present suit has been filed for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendant it is averred that the father of the plaintiff and defendant has passed away in the year 1958. After his demise, the family properties have been leased out to third persons. It is false to say that after the demise of father, mother of the plaintiff and defendant, the defendant has managed the family properties. The suit first item is an ancestral property. From the year 1971 to 1996 the defendant has served in Jeyaram Mill. For the marriage of the plaintiff, Rs.1,00,000/- has been spent and she has also been given 50 sovereigns of gold jewels and a cash of Rs.50,000/-. It is false to say that the suit properties are the separate properties of the father of the plaintiff and defendant. There is no merit in the suit and the same deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 2 5. In the additional written statement filed on the side of the defendant it is averred that the father of the plaintiff and defendant has executed a mortgage deed on 13.07.1955. The defendant has purchased 1 acre 50 cents of land in the suit second item and the same is nothing but his separate property. There is no merit in the suit and the same deserves to be dismissed. 6. On the side of the plaintiff a replication statement has been filed, wherein all the material averments made in the written statement as well as additional written statement are denied. 7. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has given a finding to the effect that all the suit properties are ancestral properties and in which the plaintiff is having only 1/4 share and to that extent, decreed the suit. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred the present Appeal Suit. 8. The learned counsel appearing for the appellant/defendant has contended with great vehemence that in the suit second schedule first item, totally 2.96 acres of land is available. Out of 2.96 acres of land, the defendant has purchased 1 acre 50 cents of land and the same is nothing but his separate property. But the trial Court has failed to consider the same and therefore, the Judgment and decree passed by the trial Court with regard to the said item are totally erroneous. Under the said circumstances, the Judgment and decree passed by the trial Court are liable to be modified. 9. Per contra, the learned counsel appearing for the respondent/plaintiff has contended that even though a specific stand has been taken with regard to the aforesaid factual aspect, no clinching evidence has been produced on the side of the appellant/defendant and the trial Court after considering the lapses on the part of the appellant/defendant has rightly decreed the suit in toto and therefore the Judgment and decree passed by the trial Court are perfectly correct and the same do not warrant interference. 10. On the basis of the rival submissions made on either side, the Court has to look into the first and foremost contention urged on the side of the appellant/defendant. 11. On the side of the appellant/defendant it has been contended that 1 acre 50 cents of land in the suit second schedule first item has been purchased by the appellant/defendant by virtue of the sale deed dated 27.08.1986 and the same has been marked as Ex.B2. 12. The learned counsel appearing for the appellant/defendant has advanced his entire argument on the basis of some flimsy admission made by the plaintiff who has been examined as PW1. The plaintiff has admitted in her evidence during the course of cross examination that the defendant has served in Jeyaram Mill. As stated earlier, Ex.B2 has come into existence on 27.08.1986. At the time of execution of Ex.B2, the parents of the plaintiff and defendant have passed away. Except Ex.B2 on the side of the appellant/defendant no other documents have been filed so as to prove the quantum of his independent income. The appellant/defendant has claimed exclusive right in respect of 1 acre 50 cents of land in item No.1 of schedule 2. Except the property mentioned in Ex.B2, the family of the https://hcservices.ecourts.gov.in/hcservices/ 3 appellant/defendant as well as plaintiff is having more than 8 acres of land. The plaintiff has also stated in her evidence that per year, from the suit properties Rs.40,000/- and 50,000/- would have been derived by way of income. 13. At this juncture, the Court has to look into as to whether the appellant/defendant has independently purchased the property mentioned in Ex.B2 by using his separate income without using surplus income derived from other suit properties. 14. The consistent case of the appellant/defendant is that the suit properties are not the separate properties of the father of the plaintiff and defendant and all the suit properties are ancestral properties. It is an everlasting principle of law that if a person who claims that particular property is a joint family property, he must prove that joint family must have sufficient income yielding nucleus and further it is also a settled principle of law that if a person pleads that a particular property belongs to him, the entire burden lies upon him to prove that he obtained particular property out of his own income without using joint family nucleus. 15. It has already been pointed out that except Ex.B2 on the side of the appellant/defendant no other document has been filed so as to prove his financial status in the year 1986. Since the above aspect has not been proved and since the erstwhile joint family has had sufficient nucleus so as to acquire some more properties, the Court can very well presume that the property mentioned in Ex.B2 is not the separate property of the appellant/defendant and the same has been purchased out of joint family income. Therefore, the first and foremost contention urged on the side of the appellant/defendant cannot be accepted. 16. The learned counsel appearing for the appellant/defendant has advanced his second limb of argument to the effect that the plaintiff has clearly admitted in her evidence that a property has been purchased in her name on 16.05.1986 and the entire sale consideration has been paid by her brother viz., the defendant and a registration copy of the sale deed has been marked as Ex.B1. Under the said circumstances, the property mentioned in Ex.B1 should also be shown as one of the suit properties since the same is partible one. 17. In fact this Court has analysed the entire averments made in the written statement. No where it has been specifically pleaded to that effect. Therefore, it is needless to say that the above limb of argument advanced by the learned counsel appearing for the appellant/defendant cannot be accepted. 18. The learned counsel appearing for the appellant/defendant has argued that the plaintiff has clearly admitted in her evidence to the effect that after the demise of her mother, 50 sovereigns of gold jewels have been given to her and subsequently 25 sovereigns of gold jewels have been returned to the defendant and to that effect no document has been forthcoming on the side of the plaintiff and therefore, the appellant/defendant is entitled to get share in the jewels given to the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ 4 19. Even though the above factual aspect has been advanced during the course of argument, the same is not mentioned in the written statement. Further the same has not been mentioned in the plaint. Under the said circumstances, the above limb of argument also goes out without merit. 20. The consistent stand taken on the side of the respondent/plaintiff is that all the suit properties are the separate properties of the father. But the stand taken on the side of the defendant is that all the suit properties except 1 acre 50 cents in item No.1 in second schedule are the joint family properties of erstwhile joint family. The trial Court after considering the evidence available on record has rightly found that all the suit properties are the joint family properties of erstwhile joint family. Therefore, the conclusion arrived at by the trial Court with regard to characteristics of the suit properties is perfectly correct and the same cannot be interfered with. 21. The present suit has been filed for the reliefs of partition and separate possession of the half share of the plaintiff. But the trial Court has clearly found that all the suit properties are the joint family properties of erstwhile joint family. Under the said circumstances, the plaintiff is entitled to get 1/4 share. In view of the discussion made earlier, this Court has not found any error in the Judgment and decree passed by the trial Court and altogether the present appeal deserves to be dismissed. 22. In fine, this appeal deserves dismissal and accordingly is dismissed without cost. Connected Miscellaneous petition is also dismissed. The Judgment and decree passed in Original Suit No.80 of 2006 by the Principal District Court, Virudhunagar District at Srivilliputhur are confirmed. Sd/- Assistant Registrar(CO) /True copy/ Sub Assistant Registrar(CS) To The Principal District Judge, Virudhunagar District at Srivilliputhur +1 CC to Mr.V.Raghavachari, Advocate, sR.NO.19305 +1 CC to Mr.M.Ashokkumar, Advocate, SR.No.19067 mj AS(MD)No.24 of 2011 20.06.2011 TR : 19.07.2011 : 4p/4c https://hcservices.ecourts.gov.in/hcservices/