Madras High Court
Duraisamy Pillai And Ors. vs Mannammal And Anr. on 28 October, 1997
Equivalent citations: (1998)3MLJ338
JUDGMENT S.M. Sidickk, J.
1. This appeal by the defendants 5, 6, 8, 9 and 10 is directed as against the common judgment and decree passed in I.A.No. 91 of 1987 and A.S.No. 191 of 1986 on the file of Principal District Court, Vellore on 18.8.1987 setting aside the judgment and decree dated 30.9.1985 in the suit in O.S.No. 66 of 1982 on the file of Sub Court at Tiruvannamalai.
2. The short facts which are necessary for the disposal of the appeal are as follows: The suit properties described in the A schedule are the self-acquired properties of one Duraiswami Pillai. The defendants 1 and 2 in the suit are the undivided sons of Duraiswami Pillai. The first plaintiff in the suit is the wife of the said Duraiswami Pillai. The 2nd plaintiff and the 4th defendant are the daughters of Duraiswami Pillai. The original owner Duraiswami Pillai died on 31.5.1962 leaving the plaintiffs and defendants 1, 2 and 4 to succeed to his properties. The 3rd defendant is the wife of the 2nd defendant. The plaintiffs and the defendants 1, 2 and 4 have been in joint possession and enjoyment of the plaint A schedule properties after the death of Duraiswami Pillai. The defendants 5 to 10 have purchased items 5 to 16 of the plaint A Schedule properties from the defendants 1 and 2 who are the sons of the deceased Duraiswami Pillai. The said alienations are not valid under law and they would not affect the right title and interest of the plaintiffs in the plaint A schedule properties. The defendants 1 and 2 have also executed sham and nominal settlement deeds in favour of the defendants 3 and 4 in respect of items 1 to 4. The said settlement deeds are void in law and they are not binding on the plaintiffs. Hence, the suit.
3. The suit claim is resisted by the defendants by filing separate written statements. The contentions raised by them are briefly stated as follows: The suit properties are not the self-acquired properties of Duraiswami Pillai. They are the joint family properties of Duraiswami Pillai. Even during the life time of Duraiswami Pillai there had been a partition between him and his sons. At any rate some of the defendants have purchased some of the items of the suit properties bona fide for value. Hence the suit for partition deserves dismissal with costs.
4. The learned Subordinate Judge at Tiruvannamalai framed as many as seven issues and came to the conclusion that the suit properties are not the self-acquired properties of Duraiswami Pillai, and the suit properties are the joint family properties of Duraiswami Pillai and his two sons. Who are the defendants 1 and 2 and Duraiswami Pillai died on 31.5.1962 and the defendants 1 and 2 alone partitioned the properties and the said partition is not binding on the plaintiffs, and the defendants 5, 8, 9 and 10 purchased some of the properties bona fide for value and even then the said sales will not be binding on the plaintiffs and under equity the properties purchased by defendants 5, 8, 9 and 10 should be allotted to the share of defendants 1 and 2, and the settlement deeds executed by defendants 1 and 2 are not valid under law, and the plaintiffs are entitled to 2/15th share and the 4th defendant is entitled to 1/15th share and accordingly a preliminary decree for partition and separate possession was passed by the learned Subordinate Judge at Tiruvannamalai. Aggrieved against the Judgment and Decree of the learned Subordinate Judge, Tiruvannamalai dated 30.9.1985 in O.S.No. 66 of 1982 the plaintiffs filed an appeal in A.S.No. 191 of 1986 before the Principal District Judge at Vellore. During the pendency of the first appeal in A.S.No. 191 of 1986, the plaintiffs filed an application to receive additional documents in I.A.No. 91 of 1987. The learned Principal District Judge at Vellore, after hearing both the counsel allowed the Appeal in A.S.No. 191 of 1986 and also allowed the application to receive additional documents in I.A.No. 91 of 1987 and set aside the judgment and decree of the trial court and remanded the suit in O.S.No. 66 of 1982 for fresh disposal in accordance with law. As against the order of remand, the defendants 5, 6, 8, 9 and 10 have preferred this C.M.A.
5. After hearing the learned Counsel for both sides the point that arises for determination in this appeal is as to whether the common judgment and decree passed by the learned Principal District Judge at Vellore in A.S.No. I91 of 1986 and I.A.No. 91 of 1987 are sustainable on the facts and circumstances of the case.
6. Point: The learned Counsel for the appellants contended that the first appellate court failed to see that there was sufficient pleadings and evidence on record to come to the conclusion that the suit properties are the joint family properties and the first appellate court erred in law without any scrutiny of the materials on record and making an order of remand of the suit to the trial court, and that the plaintiffs have not explained as to where from they got the additional documents which are sought to be produced as additional evidence before the first appellant court, and the order allowing the application to receive the additional documents is contrary to law, and the lower appellate court could have decided the matter by itself and there was absolutely no justification whatsoever for the order of remand.
7. The learned Counsel for the respondents contended that the suit properties are the self-acquired properties of Duraiswami Pillai and the first plaintiff is an illiterate woman and so she could not produce the documents in time before the trial court, and therefore an application was filed before the first appellate court to receive additional documents, and in those circumstances the first appellate court was right in allowing the application I.A.No. 91 of 1987 to receive additional documents and so the order in S.A.No. 91 of 1987 must be sustained.
8. The learned Counsel for the appellants contended that it is the burden on the plaintiffs to prove that the suit properties are the self-acquired properties of Duraiswami Pillai and it is not the initial burden on the defendants in the suit to establish that the suit properties are the joint family properties. This contention is directly answered by the leading case of the Supreme court reported in Mudigouda v. Ramachandra , wherein it was laid down as follows:
There is no presumption that a Hindu family merely because it is joint, possess any joint property, The burden of proving that any particular property is joint family property, is therefore in the first instance upon the person who claims it as co-parcenary property. But if the possession of a nucleus of the joint family is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with it said the property in question could have been acquired. It is only after the possession of an adequate necleus is shown, then the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the joint family estate
9. This leading decision of the Supreme Court was followed by our High Court in so many decisions reported in Suppanna Kounder v. Subbulakshmi (1972) 2 M.L.J. 110 : 84 L.W. 280; Srinivasan v. Sundaramurthy ; Muthu v. Adaikappa Chettiar (1987) 2 M.L.J. 454; Ponnusamy v. Meenakshi Ammal 1987 T.N.L.J. 162 and Laxminarayani Ammal v. Tatabai Ammal (1988) 1 M.L.J. 153. Therefore, the initial burden is only on the persons who state that the suit properties are the joint family properties, and it is only after the possession of an adequate nucleus is shown, then the burden shifts on to the person who claims the property as self-acquired properties to establish that the. properties were acquired without any aid from the joint family property. Therefore, the additional documents filed by the plaintiffs before the first appellate court are absolutely necessary to pronounce a judgment in this case and to render justice between the parties.
10. In this respect we have to ascertain as to whether the plaintiffs have made out the ground for the reception of additional evidence before the first appellate court. In the affidavit filed in support of the petition for reception of additional documents before the Principal District Court at Vellore in I.A.No. 91 of 1987, the 1st plaintiff has stated in paras 5 and 6 of her affidavit that she was advised to produce the documents of title and she could not get them earlier in spite of her diligent search and only now she was able to trace them and being an ignorant old lady she was not aware of the court procedure, and these documents are more than 30 years old and they are registered documents, and they are necessary also to pronounce the proper judgment and render justice between the parties. These allegations in paras 5 and 6 of the affidavit of the 1st plaintiff filed I.A.No. 91 of 1987 before the Principal District Court at Vellore were not specifically controverted by the contesting defendants before the District Court. I find from the counter statement filed on behalf of the 4th defendant in the first appellate court in I.A.No. 91 of 1987 that the allegations in paras 5 and 6 of the 1st plaintiffs affidavit were not specifically denied but the 4th respondent would state in his counter that the allegations in para 4 of the affidavit are mischievous and misleading, and no palpable or acceptable reasons have been given by the petitioners in paras 4 and 5 of the affidavit to make out a case for receiving the additional documents. Therefore the allegations of the 1st plaintiff in her affidavit that she is an illiterate lady and she could not get earlier these additional documents, which are documents of title, in spite of her diligent search, and she was able to trace them only now, and these documents are necessary to pronounce a judgment in this case, go unchallenged. Therefore the first appellate court viz., the Principal District Court, Vellore was justified in ordering the reception of additional documents under Order 41, Rule 27, C.P.C., and that order cannot be disturbed on any score.
11. Now turning to the question of order of remand of the suit to the trial court passed by the learned Principal District Judge at Vellore, I find that the learned Judge viewed the matter with wrong approach for the following reasons. The learned Principal District Judge at Vellore has given scope for the plaintiffs to amend the plaint by passing an order of remand in view of the argumentation of share of the first plaintiff and in view of the death of her son viz., the 1st defendant. Order 20, Rule 18 of C.P.C. states that where the court passes a preliminary decree for partition of the property, the court must declare the rights of several parties interested in the property. So in the preliminary decree there must be declaration of right, title and interest of every one of the co-sharers or coparceners in the suit properties by succession on the death of the original owner or by succession on the death of a co-owner or coparcener during the pendency of the partition suit or appeal. It is not necessary to amend the plaint to declare the shares of the co-owners or coparceners in the suit properties by argumentations of shares during the pendency of suit or appeal. It is sufficient for the court itself either the appellate court or the trial court to declare their right and the shares for each one of the parties to the suit after taking into consideration the augmentation of the share on the death of the co-owner or the coparcener during the pendency of suit or appeal. In other words the scope for amending the plaint in view of the augmentation of the shares on the death of one of the co-owners or coparceners during the pendency of the suit or appeal cannot be the basis for an order of remand under Order 41, Rule 23 of C.P.C.
12. The trial court has recorded the oral evidence as well as documentary evidence and rendered a decision after a full fledged trial. Merely because there is argumentation of shares of some of the parties in the suit and merely because there are some documents to be produced as additional evidence, the suit cannot be remanded to the trial court for fresh disposal in accordance with law. In this respect it is useful to refer to two decisions of our High Court. In the decision reported in Kannu Naicker v. Kalaimani 100 L.W. 922, Justice K.M. Natarajan held as follows:
In the instant case, it being common cast that the parties were not prevented from adducing any evidence, the only test that should be applied by the appellate court is, whether the appellate court itself requires any document to be produced or any witness to be examined to enable it to be pronounce judgment or for any other substantial cause. As has been pointed out in a number of decisions, the appellate court should come to finding on that question and this finding could only be after considering the entire evidence already on record.
13. In one another decision of a Division Bench of our High Court consisting of Justice Nainar Sundaram and Justice Bellie, reported in Visalakshiammal v. Dhanalakshmiammal (1982) 92 L. W. 414. It was held as follows:
The unsatisfactory consideration of an issue by the first court and the non-advertance to the judicial precedents by the first court while deciding an issue and the need to take additional evidence should not always be counted in favour of making an order of remand. These lacunae, if in fact they are present, can be rectified by the appellate court itself. There should be always endeavour to dispose of the case by the appellate court itself. Where the commissions and omissions made by the first court could be corrected by the appellate court.
Therefore the mere reception of additional documents or additional evidence could not be a ground to order for remand and to try the suit once again by the trial court. The first appellate court itself can record the evidence and mark the documents as mentioned in Order 41, Rule 27(1) of C.P.C. In such circumstances, I am of the view that the order of remand passed by the first appellate court viz., the Principal District Judge at Vellore cannot be sustained, and the Principal District Judge at Vellore is directed to take the appeal itself on its original file and record the evidence and mark the documents in accordance with law after giving sufficient opportunity to both sides. Hence, the order of remand of the suit in O.S.No. 66 of 1982 to the trial court for fresh disposal passed by the learned Principal District Judge at Vellore has to be set aside even though the order for reception of additional documents in I.A.No. 91 of 1987 must be upheld. Considering the above facts, and circumstances of the case, I am to hold that this appeal has to be partly allowed, and the common Judgment and decree of the learned Principal District Judge at Vellore in I.A.No. 91 of 1987 and A.S.No. 191 of 1986 are modified, and the common judgment and order passed by the learned Principal District Judge at Vellore in I.A.No. 91 of 1987. is confirmed, and the common judgment and decree passed by the learned Principal District Judge at Vellore in A.S.No. 191 of 1986 are set aside, and the learned Principal District Judge at Vellore is directed to take the appeal in A.S.No. 191 of 1986 on its original file and record the evidence and mark the documents in view of the reception of the additional documents after giving sufficient opportunity to both the parties to the suit as well as to the appeal and then dispose of the appeal in A.S.No. 191 of 1986 in accordance with law, and each party is directed to bear their own costs in this appeal, and I answer this point accordingly.
14. In the result C.M.A. is partly allowed. The common judgment and decree of the learned Principal District Judge at Vellore in I.A.No. 91 of 1987 and A.S.No. 191 of 1986 are modified. The common Judgment and order passed by the learned Principal District Judge at Vellore in I.A.No. 91 of 1987 are confirmed. The common Judgment and decree passed by the learned Principal District Judge at vellore in A.S.No. 191 of 1986 are set aside. The learned Principal District Judge at Vellore is directed to take the appeal in A.S.No. 191 of 1986 on his original file and issue notice to the counsel on record and record the evidence and mark the documents in view of the reception of additional documents as per order in I.A.No. 91 of 1987 after giving sufficient opportunity to both the parties to the suit as well as to the appeal and then dispose of the appeal in A.S.No. 191 of 1986 in accordance with law. Each party is directed to bear their own costs in this C.M.A.