In the High Court of Judicature at Madras
Dated: 07.12.2009
Coram:
The Honourable Mrs. Justice R.BANUMATHI
Second Appeal No.15 of 2007
E. Siva .. Appellant
vs.
1. E.Neelappa Chowdary
2. Karthikeyan
3. Saraswathi
4. Lakshmi
5. S.Shanthi
6. Minor S.Suresh
..rep. by mother & natural guardian
5th respondent S.Shanthi.
..R5 & R5 are recorded as legal
representatives of the deceased
Shanmugam vide order
dt.21.12.2006 made in M.P.No.1/2006. .. Respondents
Second Appeal filed under Section 100 C.P.C against the judgement and decree dated 18.11.2003 made in A.S.No.40 of 2001 on the file of Principal District Court, Chengalpattu, against the judgement and decree dated 30.10.1998 made in O.S.No.551 of 1991 on the file of Sub Court, Poonamallee.
For Appellant : Mr.N.Rosi Naidu
For Respondents : Mr.Srinath Sridevan for R1
No appearance for R2 to R6.
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J U D G M E N T
Second Appeal arises out of judgment in A.S.No.40 of 2001 reversing judgment of the trial Court in O.S.No.551 of 1991 and thereby passing a preliminary decree for partition. Unsuccessful second defendant is the appellant. For convenience, parties are referred to in their original rank in the suit.
2. Ellappa Chowdary was the only son of Vannappa Chowdary. Plaintiff, defendants 1 to 3, 5 and 6 are sons and daughters of Ellappa Chowdary. After life time of Vannappa Chowdary, Ellappa Chowdary inherited suit 'A' and 'B' schedule properties from his father.
3. Case of plaintiff is that properties set out in schedule 'A', 'B' and 'D' properties mentioned in the plaint belonged to their grand father Vannappa Chowdary, who died intestate and all properties devolved upon his only son Ellappa Chowdary. Further case of plaintiff is that during life time of their father Ellappa Chowdary, after meeting expenses of family, he was having surplus income from 'A' and 'B' schedule properties. Out of the amount saved, their father Ellappa Chowdary purchased 'C' schedule property and 'C' schedule property becomes joint Hindu Family Property and the plaintiff is entitled for his share in plaint 'A', 'C' and 'D' schedule properties. To that effect, plaintiff had also issued a legal notice Ex.A4 (18.7.1979) demanding partition and father Ellappa Chowdary sent a reply Ex.A7 (25.07.1979) alleging that ancestral properties were sold to third parties for discharging debts. Hence plaintiff filed suit in O.S.No.551 of 1991 for partition.
4. Second defendant filed written statement and the same was adopted by defendants 3, 4 and 6. In their written statement, defendants alleged that their father Ellappa Chowdary executed Ex.B5 Will (06.11.1981) and allotted 0.94 acres in S.No.175/1 ('A' schedule property) to the plaintiff and hence question of partition does not arise as far as 'A' schedule property is concerned. Defendants further averred that in Ex.B5 Will, father Ellappa Chowdary allotted share in 'D' schedule property-house property in favour of plaintiff and hence plaintiff is not entitled for partition in 'D' schedule property also. Insofar as 'C' schedule property is concerned, second defendant stated that 'C' schedule property was acquired by father Ellappa Chowdary out of his own earnings and hence it became the self acquired property of their father Ellappa Chowdary and that he could deal with this property on his own. It was further averred that 'C' schedule property (except Item Nos.2 and 7) was settled in favour of defendants under Exs.B2 to B4 settlement deeds (06.12.1977) and therefore plaintiff is not entitled to claim partition.
5. On the above pleadings, in the trial Court 16 issues were framed. To substantiate plaintiff's claim, plaintiff examined himself as P.W.1, his brother-in-law as P.W.2 and marked Exs.A1 to A8. On the side of defendants, Exs.B1 to B17 were marked and D.Ws.1 and 2 were examined. Upon consideration of oral and documentary evidence, trial Court held that under Ex.B5 Will (06.11.1981), Ellappa Chowdary allotted 0.94 acres in 'A' schedule property to the plaintiff. Insofar as 'B' schedule property is concerned, trial Court held that it was sold by Ellappa Chowdary during his life time to meet family expenses and discharge debts and hence 'B' schedule property was not available for partition. Insofar as 'C' schedule property is concerned, trial Court held that plaintiff has not produced documents to show that Ellappa Chowdary had surplus income to purchase 'C' schedule property. It was further held that 'C' schedule property was self acquired property of Ellappa Chowdary and therefore plaintiff has no right to claim partition in 'C' schedule property. Trial Court mainly pointed out that Exs.B2 to B4 settlement deeds were executed as early as in 1977, ten years prior to filing of suits and one of the beneficiaries having settled his share in the year 1985, plaintiff has no right to claim partition. Insofar as 'D' schedule property also, trial Court held that plaintiff is not entitled to claim partition. Holding that plaintiff is not entitled for share in 'A', 'C' and 'D' schedule properties, trial Court dismissed the suit.
6. Being aggrieved by the dismissal of the suit, plaintiff filed A.S.No.40 of 2001. Lower appellate Court held that defendants failed to adduce sufficient evidence to prove that Ellappa Chowdary purchased 'C' schedule property out of self earnings and drew presumption that 'C' schedule property purchased in the name of Ellappa Chowdary was also joint family property. Finding that ancestral properties cannot be settled, lower appellate Court held that Exs.B2 to B4 are not valid in the eye of law. Holding that Ex.B5 Will (06.11.1981) was not proved through attesting witnesses, lower appellate Court held since there was exchange of notices for partition, defence plea of prior partition cannot stand scrutiny. Reversing findings of trial Court, lower appellate Court held that plaintiff is entitled to 7/30 share in 'A' 'C' and 'D' schedule properties and passed a preliminary decree for partition. Lower appellate Court also held that plaintiff is entitled for a sum of Rs.12,600/- towards the share of three years' income from the suit properties and directed that future income shall be ascertained under Order 20 Rule 12 of Civil Procedure Code.
7. Being aggrieved by reversal judgment of the lower appellate Court, second defendant has filed this Second Appeal. At the time of admission, the following substantial questions of law were formulated for consideration:
"1. Whether the plaintiff's admission with respect to individual status of the 'C' schedule property is to be negatived so that there is a nucleus with the other property which are joint family property?
2. Whether the first appellate Court is right in presuming that as there is proof of existence of joint family property of the properties purchased, hence this 'C' schedule property would have been purchased from the income of the joint family property?
3. Whether the first appellate Court is right in negativing the Will on the ground that the attesting witnesses had not been examined to prove the Will and when particularly the plaintiff had not denied the execution of the Will and had admitted the existence of the Will and further when the same was not challenged specifically?"
8. Learned counsel for appellant contended that lower appellate Court failed to note that plaintiff has not discharged his burden by adducing documentary and oral evidence to prove that 'C' schedule property was purchased from out of sale proceeds of 'B' schedule property and surplus income from nucleus available. It was further contended that lower appellate Court failed to note that P.Ws.1 and 2 have admitted that in respect of 'A', 'C' and 'D' schedule properties, they are in possession and enjoyment of the same, as allotted under Ex.B5 Will (06.11.1981) and settlement deeds Exs.B2 to B4 (06.12.1977) and while so, inference has to be drawn as to severance in status. It was further argued that after issuance of notice under Ex.A4 (18.07.1979), the plaintiff did not insist for partition of property and suit has been filed nearly after 12 years only to harass defendants.
9. Learned counsel for first respondent/plaintiff submitted that onus of proving as to whether 'C' schedule property is ancestral property or self acquired property, is only on defendants and defendants have not adduced any evidence to substantiate their defence plea that 'C' schedule property was self acquired property of Ellappa Chowdary. It was further submitted that strong presumption in favour of jointness of the family, which was not rebutted by the defendants, rightly taken into consideration by lower appellate Court, which resulted in reversing the judgment of trial Court.
10. Insofar as 'A' schedule property is concerned, Ellappa Chowdary during his life time executed Ex.B5 Will (06.11.1981) allotting 94 cents each to his wife Muniammal, plaintiff and defendants 1 to 3. Admittedly, after filing of suit, plaintiff, mother Muniammal and defendants 1 to 3 have sold 'A' schedule property-Survey No.175/1-4.79 acres under Ex.A8 sale deed (17.11.1994) in favour of one Ramu and therefore, 'A' schedule property is not available for partition.
11. As far as 'B' schedule property is concerned, Ellappa Chowdary himself had sold out the said property to one Chempiammal during his life time to meet his family expenses and discharge debts. Hence 'B' schedule property is also not available for partition.
12. With regard to 'D' schedule - house property, father has made certain arrangements under Ex.B5 Will (06.11.1981) and plaintiff and defendants 1 to 3 are said to be residing in their respective portions of the house allotted to them.
13. Case of plaintiff is that Ellappa Chowdary purchased 'C' schedule property from out of sale proceeds of 'B' schedule property and income derived from 'A' schedule property. Case of defendants is that father Ellappa Chowdary acquired 'C' schedule property from out of his self earnings and settled in favour of defendants.
14. In AIR 1954 SC 379 (Srinivas Krishnarao Kango v. Narayanan Devji Kango and others, it was held that initial burden lies upon anyone, who asserts that any item of property was joint family property. It is settled law that there is no presumption that any property standing in the name of a kartha or a member of the joint family is joint family property. The person, who wants to set up the case that the property purchased in the name of the coparceners is that of the family, must plead and prove existence of joint family nucleus with sufficient evidence.
15. Placing reliance upon CDJ 2003 SC 780 : 2003 (10) SCC (D.S.Lakshmaiah v. L.Balasubramanyam), learned counsel for appellant contended that plaintiff having failed to discharge initial burden of establishing that there was any nucleus, there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. It was further submitted that it was for the plaintiff, who asserts that 'C' schedule property as joint family property, to prove that the said property is a joint family property. The said decision is in fact advantageous to the plaintiff. In paragraph 18 of the said judgment, Supreme Court has held that the legal principle, therefore, is that 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.
16. As held by the Supreme Court in AIR 1969 SC 1076 (Mudigowda Gowdappa Sankh and others v. Ramchandra Revgowda Sankh (dead) by his legal rep. and another), initial burden of proving that any particular property is joint family property, is, in the first instance, upon the person who claims it to be so. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. Only after proving adequate nucleus, the onus shifts on the person, who claims the property as a self-acquisition to make out that the property was acquired without aid from joint family property.
17. In this case, admittedly, family had ancestral properties viz., 'A' schedule property in S.No.175/1 - 4.79 acres and 'B' schedule property 5.90 acres. As pointed out by lower appellate Court, the avocation of the family is only agriculture. When the family had vast extent of 10 acres of land, the presumption is that the family had sufficient nucleus.
18. When family had sufficient nucleus, onus shifts to the defendants who claimed that 'C' schedule properties are self-acquired properties. Case of defendants is that 'C' schedule properties were purchased by Ellappa Chowdary without any aid from family nucleus. It was further argued that 'B' schedule property was sold long back and therefore sale proceeds could not have contributed for purchase of 'C' schedule properties. Further case of defendants is that Ellappa Chowdary purchased 'C' schedule properties from out of his own earnings by rearing milch animals and vending milk. Mere oral evidence would not be sufficient to substantiate defence plea that 'C' schedule properties are self-acquisition of Ellappa Chowdary.
19. Since Ellappa Chowdary was Kartha of Hindu family, it is for him to prove by clear and satisfactory evidence that the lands were acquired by him with his own separate funds and not with the help of joint family funds of which he was in possession and management as held by Supreme Court in AIR 1961 SC 1268 (Mallesappa v. Mallappa) and 1993-II MLJ 613 (K.V.Duraisamy and another v. D.Perumalsamy (minor) and another). In such cases, onus of proof must be placed on the Manager and not on the coparceners. No substantial evidence is forthcoming from the defendants, who asserted that 'C' schedule properties are self-acquisition of Ellappa Chowdary. When existence of adequate nucleus has been proved, lower appellate Court rightly held that 'C' schedule properties as joint family properties.
20. Subsequent conduct of parties would also establish that the parties treated the properties as joint family properties. Ex.B1 (Ex.B12) sale agreement dated 06.04.1994 was executed by plaintiff in favour of one Veerabhadra Chowdary. Later the same was cancelled under Ex.B17 (26.11.1996). Under Ex.A8 sale deed (17.11.1994) all the members of the joint family joined together to sell the property covered under Ex.B5 Will (06.11.1981) indicating the jointness of members of the family.
21. Item No.2 of 'C' schedule properties was already sold to third parties. The said sale deed was not produced to ascertain as to how the property was disposed of. As pointed our earlier, under Exs.B2 to B4 settlement deeds (06.12.1977) Ellappa Chowdary had executed three settlement deeds settling 'C' schedule properties excepting Item Nos.2 and 6 in favour of defendants 1 to 4. Case of defendants is that pursuant to settlement deeds, defendants are in possession and enjoyment of the respective properties settled in their favour. Under Ex.B6 sale deed (13.2.1985), D1 sold Item No.5-Survey No.201/12 to defendants 2 and 3.
22. 'C' schedule properties being joint family properties, the Manager has no absolute power of disposal over joint Hindu family property. Father or Kartha of joint family can execute a gift for pious purpose if it is within reasonable limits considering importance of property gifted. 'C' schedule properties being joint family properties, Ellappa Chowdary-Manager of joint family property had no absolute power to execute settlement deeds in favour of defendants 1 to 4. It is well settled that Hindu father has no power to gift away joint family property. In 1953-II MLJ 459 (Rathnasabapathi Pillai v. Saraswathi Ammal), it was held as follows:
"It is now well-established that a Hindu father has no power to gift away ancestral and joint family property in part or in whole except for the special purposes laid down in the text, which are limited and circumscribed and that too of small portions of movable property, mostly to discharge a necessary moral obligation cast on a Hindu father or manager of the family. A gift otherwise, is void in its inception and a document evidencing such as gift does not convey any interest to the donee. Though a gift of coparcenary property is not as such recognised even if it is by the entire body of coparceners, a transaction evidencing the gift of ancestral property to which all the coparceners were parties cannot, however, be attacked as void in toto as all the coparceners that claim to have an interest in the property must be deemed to be parties to the gift and the gift does not become invalid as the interest of any other person is not affected by such a transaction. Hence a gift made with the consent of all the coparceners, where there is no minor or child in the womb, could not be attacked as being void in toto. The question whether such an alienation is open to interdiction by a person affected by such a gift, as for instance, a wife or other maintenance holder depends on the nature of interest of the maintenance holder. A widow under the Hindu Law, even as modified by the Hindu Women's Right to Property Act, 1937, is not a coparcener though she is entitled to claim the interest of her deceased husband in the joint family property. Hence she cannot question an alienation by way of gift of joint family property by the entire body of coparceners.
In K.V.Duraisamy and another v. D.Perumalsamy (minor) and another, 1993-II M.L.J.613, it was held as follows:
"It is quite evident that there was some joint family nucleus with the aid of which the first appellant started arecanut trade and derived income therefrom. Since he was the manager of the family at the time of acquisition of the lands, as it has been laid down by the Supreme Court in Mallesappa v. Mallappa, A.I.R.1961 S.C.1268;=(1962) 2 M.L.J.(S.C) 154; =1962 S.C.J 589 = (1961) 2 S.C.R.779 = (1962) 2 An W.R.(S.C) 154 it is for him to prove by clear and satisfactory evidence that the lands were acquired by him with his own separate funds and not with the help of joint family funds of which he was in possession and charge. The onus of proof must, in such a case, be placed on the manager and not on the coparceners".
Having regard to the above, lower appellate Court rightly held that Exs.B2 to B4 are not valid documents in the eye of law.
23. Trial Court dismissed plaintiff's suit mainly on the ground that after issuance of Ex.A4 notice (18.07.1979), plaintiff did not pursue the matter for quite some time. Trial court has also pointed out that under Ex.B6 sale deed (13.2.1985) D1 sold item No.5-Survey No.201/12 to defendants 2 and 3 and plaintiff did not raise any protest indicating waiver of his right for partition.
24. In a suit for partition, a party can claim that a particular item of property is a joint family property and the burden of proof lies on the party who asserting it. It is apparent from the evidence that after issuance of Ex.A4 notice in 1979, members of joint family had jointly sold 'A' schedule property under Ex.A8 sale deed (17.11.1994). Ex.A8 is a strong circumstance indicating continued jointness of the family and therefore, trial Court was not right in saying that plaintiff is to be non-suited because of delayed filing of suit for partition.
25. In paragraph 23 of its judgment, lower appellate Court has arrived at the conclusion that the plaintiff is entitled to 7/30th share in 'C' and 'D' schedule properties. 'D' schedule property is a house property and pursuant to the settlement/arrangement under Ex.B5 Will, plaintiff and defendants are in possession of their respective portions in 'D' schedule house property. While effecting final decree insofar as 'D' schedule property is concerned, equity to be worked out in allotting respective portions to the respective sharers as far as practicable. Insofar as 'C' schedule properties are concerned, as discussed earlier earlier, item nos.2 and 7 are not available for partition. Insofar as other items of 'C' schedule properties are concerned, while effecting final decree equity to be worked out in allotting respective portions to the respective sharers. Insofar as mesne profits are concerned, lower appellate Court has ordered future mense profits has to be decided through the enquiry under Order 20 Rule 12 of Civil Procedure Code.
26. In the light of well settled principles, upon analysis of evidence and materials on record, lower appellate Court rightly held that 'C and D' schedule properties are the joint family properties and arrived at the conclusion that plaintiff is entitled to 7/30th share. Conclusion of lower appellate Court is well balanced and does not suffer from any serious error warranting interference exercising jurisdiction under Section 100 of Civil Procedure Code.
27. In the result, the judgment of lower appellate Court in A.S.No.41 of 2001 dated 18.11.2003 is confirmed and Second Appeal is dismissed. As pointed out earlier in paragraph 25, in Schedule 'C' (excepting item nos.2 and 7), equities are to be worked out as far as practicable while passing final decree. No costs. Consequently, M.P.No.1 of 2007 is also dismissed.
ATR
To
1. The Principal District Judge
Chengalpattu.
2. The Subordinate Judge
Poonamallee.
3. The Section Officer, V.R.Section,
High Court,
Madras
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