Madras High Court
Puthiavinayagam Pillai vs Sivasankaran Pillai on 18 September, 1996
Equivalent citations: (1997)1MLJ199
JUDGMENT Raju, J.
1. The above second appeal has been filed by the plaintiff in O.S. No. 548 of 1980 on the file of the Principal District Munsif Court, Srivilliputhur, who succeeded before the learned Trial Judge, but lost before the first appellate court. The parties hereto are brothers, who are sons of one late Vellaiappa Pillai. The suit was filed for declaration of the plaintiff's title to the suit schedule property and for possession of the same from the defendant. The case of the plaintiff before the trial court was that he purchased a vacant site in the year 1948 and constructed two houses in the year 1949, that the plaintiff and defendant are brothers, that they had no ancestral properties, that the plaintiff was working as a teacher and he was also an Artist by profession and the houses in question were constructed from put of his self earnings, that in the year 1956 he had purchased a vacant site, north of the suit house and constructed two small houses, that he was taking care of the other members of the family who were younger to him, that in the year 1965, the father who abruptly left the family returned after twelve years and died in the disputed house situated in the eastern portion, that after about four year of joint living, the plaintiff wanted to have separate residence and therefore be permitted the defendant to live in the disputed house and possession of the defendant of the-suit property was only permissive in character and since the defendant precipitated by giving police complaint claiming ownership of the property under the pretext and on the allegation that the plaintiff is attempting to disturb his possession, the necessity to file the suit arose after exchange of notices between parties.
2. The defendant in his written statement contended that the plaintiff and the defendant originally belonged to Mamsapuram, that their family owned an ancestral masonry house at Mamsapuram and the plaintiff sold the ancestral house at Mamsapuram and purchased a site in the name of the plaintiff and constructed the twin houses separate entrances, that the purchase and constructions were done from out of the sale proceeds of the ancestral house and therefore the suit house belonged to the plaintiff and the defendant as ancestral property belonging to the joint family. It was also the claim of the defendant that there was no partition between the brothers in respect of the joint family properties and the plaintiff and the defendant are co-parceners or co-sharers having equal interest in the suit property and it was only for the purpose of convenience, the plaintiff and the defendant were living in separate portions. The further contention of the defendant was that he live along with his parents in the house marked, K.L.B.G. that the defendant got married in the year 1955 and the brothers exchanged the house and the plaintiff being the elder brother, used to receive all the money earned by the defendant also and the fact is proved by the painting of the portrait of "Sri Andal", for painting a sum of Rs. 4,000 was received as remuneration and apart from the above work, they have also painted many portraits of Gods and Alwars and received remuneration from donors and that from such income, the brothers have purchased a house which is opposite to the suit house. It is only thereafter, the brothers, divided it into two separate portions in continuation of the houses occupied by them respectively. In the year 1975 the plaintiff's son got married and when the plaintiff wanted to have his son's family separately, the defendant gave his portion to the plaintiff's son as a temporary relief and consequently the case of the plaintiff that he had purchased the house on the northern side of the suit property was false. Ever since 1955 the defendant claimed to have lived in the suit property though the mess was common and only from 1969, the defendant was having a separate mess and the defendant, therefore, disputed the theory of permissive occupation and possession of the suit property by him.
3. On the above claim and counter-claim, the suit came to be tried and both parties adduced oral and documentary evidences. On the side of the plaintiff, apart from the plaintiff himself who got examined as P.W. 1, a third party was examined. On the said of the defendant, he got himself examined as D.W. 1 and he also examined on his side the sister by name Subbammal as D.W. 2. Learned Trial Judge after considering the oral and documentary evidence on record, by his judgment and Decree dated 20.7.1981 decreed the suit an prayed for, on the view that the purchase effected under Ex. A-1 in the name of the plaintiff was from out of his earnings and the property did not belong to the joint family, that it was futile on the part of the defendant to contend that the said suit property was purchased house at Mamsapuram, that the plaintiff had independent earnings from out of which, he constructed the house and there was also no clinching documentary or oral evidence, to prove that the plaintiff recognised or treated the suit property as joint family property or there was a blending, and that therefore, the plaintiff as an ostensible title holder he is entitled to recover possession also from the defendant. Aggrieved, the defendant filed in appeal before the Sub Court, Sirivilliputhur. Learned Subordinate Judge has chosen to appreciate the materials as it appealed to him and relying on the statement of law in respect of the presumptions available to adjudge the existence of a joint family or coparcanary property, considered the materials in the light of the statement of law as extracted from the Text Book on Hindu Law by Mulla, 13th Edition. Learned First Appellate-Judge has chosen to come ultimately to the conclusion that the suit property belonged to the joint family, that the same came to be purchased only from out of the sale proceeds of the ancestral house at Mamsapuram and that therefore, the exclusive right claimed by the plaintiff cannot be sustained. In coming to such a conclusion, learned First Appellate Judge also was very much influenced by the deposition of D.W. 2, the sister of the parties, on the view that she had no axe to grind against one of the brothers she being common sister to both. Learned First Appellate Judge consequently allowed the appeal and dismissed the suit. Aggrieved, the above second appeal by the plaintiff.
4. Mr. E. Padmanabhan, Learned Senior Counsel appearing for the appellant while elaborating the substantial questions of law formulated at the time of admission of the appeal, contended that the first appellate court erred in law and misdirected itself in proceeding on a presumption and hypothesis that the plaintiff was the joint family Manager accountable for the affairs and funds of the joint family. Learned Senior Counsel further contended that the learned First Appellate Judge could not have held that the plaintiff's exclusive right over the property as ostensible owner particularly, when there are ample materials on record to show that he has self-earnings independently and that he was not the Manager of the joint family was not substantiated particularly in the teeth of the overwhelming materials on record to show that the acquisition of the property in dispute was only by way of self-acquisition, without the assistance of any joint family nucleus or funds. Per contra, Mr. Nataraja Shankar, learned Counsel appearing for the respondent/defendant vehemently contended by adverting to the findings recorded by learned First Appellate Judge that it was well within the area of discretion and powers of the first appellate court to reappreciate the evidence and come directly to a contrary conclusion than the one arrived at by the learned Trial Judge and that no exception could be taken to the manner of appreciation of evidence or the findings recorded by learned First Appellate Judge for the reasons assigned by him. Argued the learned Counsel for the respondent further that the sister examined as D.W. 2 had no grouse to speak against either of the brothers and the evidence tendered by her Would go to show the manner in which the purchase of the property was effected and how the property was all along treated and enjoyed between the parties and consequently the judgment of the First Appellate Judges does not call for any interference in this second appeal. Learned Counsel appearing in the matter brought to my notice certain, decisions in addition to the statement of law contained in the Text Book by the renowned author Mulla on Hindu Law. It is not necessary to set out in detail the various judgments relief upon except adverting to two of them which has meticulously analysed the relevant principles and laid down the proper approach to be adopted in adjudicating a claim of the nature wherein the existence of a joint family or the relationship of co-owners or co-sharers are claimed in respect of a property, said to be a joint family property as against a conflicting claim that it is the exclusive property of a member of the family. In P. Kamakshi Animal v. P. Venkatesan and Ors. a Division Bench of this Court consisting of Their Lordships S. Mohan, as the learned Judge then was and S. Swamikkanuu, J. elaborately reviewed the entire case law on the subject and held as hereunder:
30. It is a well-established principle of law that when in a suit a party claims that any particular item of the property is joint family property, the burden of proving that it is so rests on the party asserting it. Where it is established or admitted 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 presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arises if the nucleus is such that with its help the pr6perty claimed to be joint could not have been acquired. In order to give rise the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired, a family house in the occupation of the members and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value.
5. In Ponnuswami v. Meenakshi Ammal and Ors. , a Division Bench of this Court consisting of Sathiadev, J and Sivasubramaniam, J. also had an occasion to deal with a similar issue relating to the joint family and disputed claims between members of the joint family to a property as to whether such property was joint family property or self-acquired property of any member of the joint family. Sivasubramaniam, J who spoke for the Division Bench reiterated the well-settled principles in this regard often found declared or reiterated in one or the other of the decisions of this Court as also the Apex Court in the following terms:
9. In so far as the presumptions in respect of joint family are concerned, the law is well-settled now. There is no presumption that a family, because it is joint possess joint property or any property. When in a suit for partition, a party claims that any particular item or property is joint family property, the burden of proving that it is so rests on the party asserting it. According to the judicial pronouncements, to prove that a particular property is joint, the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. It is to be noted that in cases where it is established or admitted 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 presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family....
10. In order to give rise to the presumption, the nucleus must be such that with its help the property claimed to be joint could have been acquired. Whether the evidence adduced by party is 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 extent of the nucleus. What is to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made. Alternatively, this may be shown from the nature and relative value of the nucleus itself. It is to be noted that this question of presumption differs from case to case and there cannot be a principle which will apply to all the cases. Even though the initial' burden is on the plaintiff in case to prove that the house property, which is the subject matter of the present appeal, was purchased out of the joint family, nucleus, when there is intrinsic evidence in the case to show that there was sufficient income from the admitted joint family properties, an inference can be drawn that the said property was purchased out of the joint family funds....
6. I have carefully considered the submissions of the learned Counsel appearing on either side, in the light of the above well-settled principles governing the matter in issue and the materials placed on record in this case. So far as the materials on record, except the evidence of D.W. 2, to which a reference will be separately made are concerned, the fact remains that the plaintiff was the purchaser of, the land, on which, the houses in question were constructed, under Ex. A-1 sale deed dt.21.4.1948 for a consideration of Rs. 100, The house property was sold three years before under Ex. B-2, dated 18.4.1945 for Rs. 800 not by the plaintiff as alleged but only by the father of the plaintiff and defendant, the father executing the sale deed for himself and on behalf of the defendant, who was then a minor and the plaintiff as the second independent vendor. That apart, there are materials on record to show that the plaintiff was working as a teacher from 1944 to 1946 and thereafter he was employed in 1948 and 1949 and that in addition to his regular employment as above, the plaintiff was also carrying, on the profession of an Artist, by drawing pictures and making sufficient earnings. No doubt, it is the common case, that after the sale of the house in 1945 and after some time thereafter the father disappeared from the family but returned after several years and during this time, apparently, the plaintiff who was the eldest person was protecting and taking care of the other members of the family, particularly, the defendant also who was said to be of nine or ten years of age when the property in question was acquired in 1948 and thereafter when the same was improved also the defendant was only a minor and there is absolutely no evidence whatsoever to show that he was sufficiently of the age to earn any income. From the fact that as a minor body he was in the family and he might have been doing some odd jobs in the family, will not give him the opportunity or right to claim that the earnings made by the plaintiff was the joint family earnings unless any concrete or positive materials were made available to show joint earnings at the relevant or material point of time. Which, in my view, is conspicuously absent in this case. The defendant has not chosen and he could not also produce any documentary evidence to substantiate his claim that with the sale of the only house property in the year 1945 under Ex. B-2 which recited the house also to be the self acquired property of the father only, now claimed to be ancestral by the defendant the family possessed of any other joint family property to the plaintiff of that the plaintiff was the Manager of a Hindu joint family owning properties of which, the plaintiff was or could be said to have been managing or administering even during the life time of the father. The entire case of the defendant pertaining to the acquisition of land in 1948 and construction made subsequently and improvements, if any, made periodically, to claim that the property is the joint family property, the same according to the defendant having been purchased from out of the funds realised from the sale of the house three years prior to the purchase in 1948 rests merely upon the oral evidence of D.W. 2 the sister of the parties. No doubt, this evidence of D.W. 2 appears to have gained the confidence of the learned first appellate Judge. A careful reading of the evidence would go to show that the deposition of D.W. 2 the sister who would not be said to have had cordial relationship with the plaintiff cannot be itself be held to be sufficient to prove any of the basic or fundamental facts, which are required to be established by a person asserting the joint family character of a property which indisputably even assuming for consideration is standing in the name of a member of the joint family when the father was very much alive and when there was no positive or concrete evidence to show that any joint family funds as such were entrusted in the hands of the plaintiff, who was at the most a member of the joint family. There are no proper or clincing material to demonstrate as to when the father left the family and as to what happened to Rs. 800 said to have been realised by the sale of the family house at Mamsapuram, except, a mere assertion of D.W. 2 in the Box as a witness that it was not correct for the plaintiff to claim of D.W. 2 that the plaintiff, his brother, father and mother and every one jointly constructed the house would look like a story, particularly in the teeth of her own specific admission about the self-earnings of the plaintiff. The learned trial Judge has rightly pointed out the vital contradictions in the evidence of D.W. 1 and D.W. 2 on the basis of which only the trial Judge chose to accept the claim of the plaintiff and came to the conclusion that the ostensible owner of the property could not be denied of his right to the properties standing in his name. The picture Ex. B-1 was admittedly produced in 1975-76 cannot have any relevance to the case on hand. The lapse of time between the sale of the family house and that too by the father who was alive claiming to be his self-acquired property is not only substantial but the sale consideration for the purchase by the plaintiff in his name of the property in 1948 was merely Rs. one hundred and in the teeth of the fact that the plaintiff was employed and was an earnings member in addition to his practicing the profession of an Artist, part-time, the claim of the plaintiff that the property in question was a self-acquired one cannot be so summarily disbelieved or rejected as was done by the first appellate court. The first appellate Court readily but not justifiably presumed the accountability of the plaintiff not found to be a manager of the joint family. In my view, the fact that the first appellate court was not well instructed on the fundamental principles of law, governing the adjudication of a claim pertaining to the existence of a joint family with sufficient joint nucleus as also the accountability of an ordinary member as opposed to the manager of a joint family resulted in the erroneous approach and appreciation of materials on record and consequently the findings arrived at by the first appellate Court stood seriously vitiated on account of such misdirection both in law and in the matter of appreciation of the evidence on record. As noticed earlier, the principles referred to as having been laid down by this Court have been miserably failed to be observed as disclosed from an inappropriate aspect of such a venture as being statement of law from a standard text book, alone having been adverted to and considered by the first appellate court. Learned first Appellate Judge committed in my view, a grave error in placing entire reliance upon the evidence of D.W. 2, which, as pointed out earlier, was not and could not be construed to constitute proper or legally acceptable evidence to prove the existence of a joint family with sufficient nucleus or the accountability of the plaintiff who is a member, if at all and not a manager of the joint family for the acquisition the property in question, as the joint family property, and also to deny the ostensible title holder of his right to the property, who as noticed earlier, has also been shown and proved to have had his own self earnings sufficient for acquiring the property, so as to constitute it as his self-acquired property.
7. Learned first appellate Judge, though had every right even to reappreciate the materials on record and to draw conclusions different from the one arrived at by the learned trial Judge, such appreciation of evidence by the learned first appellate Judge must be in conformity with the requirements of law and cannot be arbitrary or be made in an unreasonable manner. The appreciation of the material by a judicial forum should be in a judicious manner and an objective process of reasoning and cannot be said to be a mere subjective one, totally immune from the scrutiny of an appellate court be it the second appellate court. Learned first Appellate Judge, so far as the case on hand is concerned, has not only misapplied the relevant and governing legal principles of law to be kept in view in a matter of adjudication of the nature in question, but also misdirected himself in overlooking and omitting to give due credence to concrete materials merely on the basis of the oral evidence of D.W. 2 which lacked any precision or particulars or carry any conviction or support of any documentary evidence which as pointed out by the trial, Judge did not support the version of the defendant. Wherever there is documentary evidence as also oral evidence, the importance of documentary evidence cannot be belittled merely on the assertion of a witness in the box tendering oral evidence unless such evidence has some support or corroboration of some documentary evidence to give such oral evidence the credibility of acceptance. In this case the oral evidence on record on the said of the defendant does not have such credibility of acceptance and the conclusions arrived at by the learned Trial Judge are found to be well merited and well reasoned than the findings recorded by the First Appellate Judge, which as pointed out earlier, are not supported by legally acceptable materials, considering the matter in contrast to the one recorded by the learned Trial Judge. Consequently, the judgment and decree of the first appellate Judge is hereby set aside, the second appeal is allowed and the judgment and decree of the learned Trial Judge is restored. There shall be no order as to costs.
8. At the conclusion of the judgment learned Counsel for the respondent submitted that taking into account the nature of the decree viz., for recovery of possession and the relationship of parties, some reasonable time may be granted for delivery by the court itself. Keeping into account, the request made and the relationship of parties, I consider that the defendant may have six months time for delivery of possession.