IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 26.7.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.427 of 2009 Ramadoss @ Kannan .. Appellant/Defendant vs. M.Kesavan .. Respondent/Plaintiff The Second Appeal has been filed against the judgment and decree, dated 9.1.2009, made in A.S.No.34 of 2007 on the file of the District Court Nagapattinam, confirming the judgment and decree, dated 30.7.2007, made in O.S.No.2 of 2007, on the file of the Subordinate Court, Nagapattinam. For Appellant : Mr.S.M.Loganathan For Respondent : Mr.C.S.Prakasha Rao J U D G E M E N T The Second Appeal has been filed against the judgment and decree, dated 9.1.2009, made in A.S.No.34 of 2007, on the file of the District Court, Nagapattinam, confirming the judgment and decree, dated 30.7.2007, made in O.S.No.2 of 2007, on the file of the Subordinate Court, Nagapattinam. 2. The defendant in the suit, in O.S.No.2 of 2007, is the appellant in the present second appeal. The plaintiff in the said suit is the respondent herein. The plaintiff had filed the suit, in O.S.No.2 of 2007, on the file of the Subordinate Court, Nagapattinam, praying for a decree declaring that the plaintiff is the absolute owner of the suit property and for recovery of possession by vacating the defendant from the suit property. 3. The plaintiff had stated that he is the resident of Neela North Street, Nagapattinam. He had worked in Arab countries as a driver, and with the money earned by him he had purchased the suit property, on 11.1.1974, wherein he had constructed colony houses. He had also obtained the necessary permission from the Nagapattinam municipality for putting up a construction and he had also paid the https://hcservices.ecourts.gov.in/hcservices/ tax for the house in his name. He had borrowed money from the Nagapattinam Housing Loan Society for the construction of the said house and he had also repaid the borrowed amount from his own income. The electricity connection also stands in his name. 4. It had also been stated that the defendant is the younger brother, who was residing in some other place for rent. As the owner of the defendant's house had asked the defendant to vacate the house under his occupation, the plaintiff had permitted the defendant to reside in a portion of the suit property in the year, 1987. Thereafter, in spite of repeated demands to vacate the suit property belonging to the plaintiff, the defendant had refused to do so. In such circumstances, the plaintiff had filed the suit, in O.S.No.2 of 2007, on the file of the Subordinate Court, Nagapattinam. 5. In the written statement filed on behalf of the defendant, it has been stated that the suit property belongs to the joint family consisting of the plaintiff, the defendant and the widow of their brother Venugopal. The property was, originally, purchased by Muthusamy Naidu, father of the plaintiff and the defendant. Since, Muthusamy Naidu had been affected by paralytic stroke and he had become immobile, the property had been purchased in the name of the plaintiff. 6. It had also been stated that the plaintiff is not earning sufficient income to purchase the suit property. He was only a driver earning Rs.75/- per month. Even the marriage of the plaintiff had been performed by the defendant by borrowing money from the defendant's employer. The suit property had been purchased by the father of the plaintiff and the defendant with the help of the borrowed money and as such, the suit property was treated as a joint family property. 7. It has also been stated that the plaintiff, in the suit in O.S.No.131 of 1981, had accepted that the suit property and other properties were coparcenary properties and that the plaintiff was entitled only to 1/6th share in the said properties as he had no independent right in them. While so, the plaintiff ought to have filed a suit for partition of his 1/6th share, instead of filing a suit for declaration and for recovery of possession, as in the present case. 8. In view of the averments made on behalf of the plaintiff, as well as the defendant, the trial Court had framed the following issues for consideration: "1. Whether the suit property is the absolute property of the plaintiff vide a sale deed or in the joint family property? https://hcservices.ecourts.gov.in/hcservices/ 2. Whether the plaintiff is entitled for a declaration that he is absolute owner of the suit property? 3. Whether the plaintiff is entitled to seek recovery of possession from the defendant? 4. To what other reliefs?" 9. The plaintiff had examined himself as P.W.1 and two other witnesses had been examined on behalf of the plaintiff as P.W.2 and P.W.3. Exhibits A.1 to A.12 had been marked on behalf of the plaintiff. On the side of the defendant, the defendant had examined himself as D.W.1 and two other persons had been examined as D.W.2 and D.W.3. Exhibits B.1 to B.17 had been marked on behalf of the defendant. The identity card of D.W.3 had been marked as Exhibit X.1. 10. In view of the averments made on behalf of the plaintiff, as well as the defendant and on considering the evidence available on record, the trial Court had found that, even though the defendant had claimed that the suit property is a joint family property and that his father Muthusamy Naidu had sufficient funds for the purchase of the suit property, at the time of the execution of Exhibit A.1, he had not been in a position to substantiate his claim, by sufficient evidence. Further, the defendant had not chosen to prove that he was earning more than the plaintiff and that he had contributed for the purchase of the suit property. On the other hand, the plaintiff had marked Exhibit A.8, to show that he was a taxi driver in the year, 1974, and that he had managed to pay Rs.2,490/-, on 20.5.1975, to the Co-operative Housing Society for the repayment of the loan obtained for the purchase of the said property. It was further found that the defendant was not in a position to show that his employer had given him Rs.2,500/-, as claimed by him for the purchase of the suit property. Further, there is no pleading on the side of the defendant that the said property had been purchased or acquired based on the joint labour of the plaintiff, the defendant and their father. The defendant had not been in a position to prove that there was a coparcenary existing at the time of the purchase of the property and that there were other properties, which were existing at the relevant point of time. Therefore, the trial Court had held that the suit property cannot be said to be forming a part of the joint family property. 11. The trial Court had also found that the plaintiff had not signed the counter, which had been filed by the counsel, in E.P.No.147 of 1984, filed to bring the suit property, in O.S.No.131 of 1981, for sale and therefore, Exhibit B.7 cannot be taken as a declaration by the plaintiff that the suit property is an ancestral https://hcservices.ecourts.gov.in/hcservices/ property. In such circumstances, the trial Court had come to the conclusion that the suit property is not a joint family property belonging to the plaintiff, as well as the defendant and other members of the family, but that it was an absolute property belonging to the plaintiff. As such, the trial Court had decreed the suit, as prayed for by the plaintiff. 12. Aggrieved by the judgment and decree, dated 30.7.2007, made in O.S.No.2 of 2007, on the file of the Subordinate Court, Nagapattinam, the defendant in the suit had filed an appeal, in A.S.No.34 of 2007, on the file of the District Court Nagapattinam. 13. The first appellate Court had framed the following points for consideration: "1. Whether the plaintiff is the absolute owner of the property or it was purchased from out of the funds of joint family in the name of the plaintiff? 2. Whether this appeal has to be allowed? 3. To what relief the appellant is entitled to?" 14. Based on the evidence available on record, the first appellate Court had also arrived at similar conclusions as that of the trial Court, while confirming the judgment and decree of the trial Court. 15. Aggrieved by the judgment and decree, dated 9.1.2009, made in A.S.No.34 of 2007, the defendant in the suit, who was the appellant in the first appeal, had filed the present second appeal. 16. This Court had admitted the second appeal on the following substantial questions of law: "1. Whether the Courts below had understood the burden of proof on the part of the dominus litus namely the plaintiff had discharged his burden of proof that the respondent had enough resources to purchase the property during the year 1974 in the absence of the same whether the Courts below are right in decreeing the suit? 2. Whether the Courts below are justified in slightly brushing aside the important nexus between the character of the property and the execution of the mortgage by constructing the defendant and other members of the family as eonominee parties?" https://hcservices.ecourts.gov.in/hcservices/ 17. The learned counsel appearing for the appellant had submitted that the judgment and decree of the Courts below were contrary to law, weight of evidence and the probabilities of the case. The Courts below had failed to see that the suit property is a joint family property belonging to the plaintiff, the defendant and the other members of the family. The Courts below ought to have held that the suit property is not the exclusive property of the plaintiff/respondent, as it has been purchased by the father of the plaintiff and the defendant, using their own money and the money borrowed from the defendant's employer. 18. The learned counsel appearing for the appellant had further submitted that the Courts below ought to have found that the plaintiff was not in a position to show that he had sufficient income as a driver to purchase the property on his own. Further, the Courts below had erred in coming to the conclusion that the suit property is the self acquired property of the plaintiff, who is the respondent in the present second appeal, without properly appreciating the evidence on record. 19. The learned counsel appearing for the appellant had further submitted that the trial Court, as well as the first appellate Court had committed an error in coming to the conclusion that the counter filed, in E.P.No.147 of 1984, wherein it had been admitted that the suit property is a coparcenary, does not bind the plaintiff, as it had been singed only by the counsel. The Courts below had failed to see that the members of the joint family were residing in the suit property and after obtaining the loan by mortgaging the property, the members of the joint family had constructed a house therein. In such circumstances, the findings of the Courts below are erroneous and invalid. 20. The learned counsel appearing for the appellant had further submitted that the findings of the Courts below are perverse. When it is the duty of the plaintiff to show sufficient proof of his income, to substantiate his claim that he had purchased the suit property, with his own funds, the Courts below had, wrongly, shifted the burden of proof on the defendant to show that the suit property had been purchased from common funds. 21. The learned counsel appearing for the appellant had relied on the following decisions in support of his contentions: 1. NARENDRA GOPAL VIDYARTHI Vs. RAJAT VIDYARTHI (2009) 3 SCC 287 2. MUTHUSAMY Vs. CHINNARI GOUNDER (2009) 1 MLJ 354 3. N.KRISHNASAMY MUDALIAR (DIED) & 2 OTHERS Vs RAMATHAL & 2 OTHERS (2009-3-L.W.649) https://hcservices.ecourts.gov.in/hcservices/ 22. Per contra, the learned counsel appearing for the respondent had submitted that, from the evidence available on record, the Courts below had rightly come to the conclusion that the suit property belongs to the respondent, as he had purchased the suit property from his own funds and that the amount borrowed from the Nagapattinam Housing Loan Society had also been repaid from the income of the respondent. Further, there was no evidence to show that the father of the appellant, as well as the respondent, had sufficient income, as he was immobalised due to a paralytic stroke. 23. The learned counsel appearing for the respondent had submitted that both the Courts below had rightly held that the suit property is a self acquired property of the plaintiff. All the relevant records relating to the suit property are in favour of the plaintiff. Further, there is no substantial question of law arising for the consideration of this Court in the present second appeal. 24. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available, this Court is of the considered view that the appellant has not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. The appellant has not been in a position to show that the findings of the Courts below are erroneous and incorrect. The courts below had rightly held that the appellant had not been in a position to show that the suit property had been purchased from the income of the father of the plaintiff and the defendant and from the money obtained from the defendant's employer. Further, there is nothing on record to show that the father of the plaintiff and the defendant was earning an income, even though he was immobilised due to a paralytic stroke. 25. The Courts below had found that the plaintiff was a driver having an independent source of income and the suit property had been purchased by the respondent from his own funds, by borrowing a certain amount of money from the Nagapattinam Housing Loan Society. The contentions raised on behalf of the appellant that the respondent had not discharged his burden of proof caused on him cannot be countenanced. 26. It is also clear that the Courts below had rightly held that the admission made in Exhibit B.7 counter, filed in E.P.No.147 of 1984, cannot be held to be binding on the respondent. As such, it cannot be said that the findings of the trial Court, as well as the first appellate Court, are perverse in nature. As far as the decisions cited by the learned counsel appearing for the appellant are concerned, this Court does not find that the above decisions could be substantially relevant in supporting the contentions raised by him. https://hcservices.ecourts.gov.in/hcservices/ 27. Further, there is no substantial question of law arising for consideration of this Court in the present second appeal. As such, the second appeal is devoid of merits and therefore, it is liable to be dismissed. Hence, it stands dismissed. No costs. Consequently, connected M.P.Nos.1 and 2 of 2009 are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar VS To: 1. The District Judge, Nagapattinam, 2. The Subordinate Judge, Nagapattinam + 1 cc to Mr. S.M. Loganathan, Advocate SR.53698 + 1 cc to Mr. C.S. Prakasha Rao, Advocate SR.53699 S.A.No.427 of 2009 VS(CO) EU 2.09.2010. https://hcservices.ecourts.gov.in/hcservices/