Madras High Court
Vembu Ammal And 7 Others vs Pattuammal And 3 Others on 22 July, 1999
Equivalent citations: 1999(3)CTC717
ORDER
1. The defendants who suffered a decree for partition is O.S. No.16 of 1984 on the file of the Sub-Court, Ariyalur, have filed the above Appeal.
2. The respondents/plaintiffs filed the suit for partition and separate possession of their half share in the suit properties. Even according to the plaintiffs 'C' schedule mentioned properties in the plaint are the suit properties. The plaintiffs claim that the 'C' schedule properties are the properties of late Veeramuthu and he acquired the same from out of his earnings and from the income of ancestral properties. The 1st plaintiff claims that she is the legally wedded wife of the said Veeramuthu and the other plaintiffs are their children. Accordingly to the plaintiffs, after the death of the said Veeramuthu, a dispute arose between the 1st plaintiff and the 1st defendant regarding the properties mentioned in the plaint. There was a panchayat in which it was decided that the properties described in 'A' schedule should be allotted to the plaintiffs and 'B' schedule properties it was decided that the partition should be done in future, and, till then, the income derived from houses as rent and from the business should be enjoyed commonly. On that basis the plaintiffs have filed the above suit for partition claiming half share in the suit properties.
3. The 1st defendant filed written statement. She also claims that she is the legally wedded wife of the said deceased Veeramuthu and the defendants 2 to 8 are her children. She has specifically claimed that the 'C' schedule properties are of her own, and they are not the joint family properties as claimed by the plaintiffs. On that basis it is alleged that the plaintiffs cannot claim any share in the suit properties.
4. The trial Court framed as many as seven issues and after appreciating the oral and documentary evidence found that the suit properties are the joint family properties of the deceased Veeramuthu and that the 1st plaintiff alone should be the legally wedded wife of the deceased Veeramuthu. On the basis of the abovesaid findings the trial Court passed the preliminary decree for partition and separate possession.
5. The learned counsel appearing for the appellants/defendants has submitted that the trial Court without even appreciating the fundamental principles of law governing the adjudication of claim pertaining to the character of joint family properties and without even appreciating the case of the plaintiffs, and the evidence adduced on behalf of the plaintiffs, decreed the suit. As submitted by the learned counsel, the trial Court has not at all adverted to the evidence adduced on behalf of the plaintiffs. But, the case has been decided only on the basis of the evidence of D.W.1. It is well settled that the burden of proof is on the person who claims that a particular property is the joint family property if it stands in the name of the individual. In the present case, admittedly, the suit properties stand in the name of the 1st defendant. When the plaintiffs claim that the same have been purchased from the nucleus of the joint family, properties they have to establish the same.
6. While dealing with similar issue the Division Bench of this Court in Pattusami Padayachi v. Mullaiammal, 1976 (II) M.L.J. 225, has held as follows:-
"18. The main contention of the learned counsel for the appellant is that the properties in Tholuvur which stood in the name of Pattayee Animal are to be, having regard to the affluence of the family, treated as joint family properties. No doubt, Muthusami Padayachi obtained about 18 acres of land in the partition effected as between himself and his brothers. Probably, the quantum of the share obtained by Muthusami Padayachi was greater. But that by itself does not lead to the presumption that such a corpus of joint family properties would yield surplus income. The plaintiff has not taken the precaution to prove that the family income from such properties obtained by Muthusami Padayachi was so abundant that it always resulted in a surplus which surplus could be utilised for further annexations to erstwhile joint family properties. It has now become almost axiomatic that properties purchased by one or the other of the members of a co-parcenary or joint family when the family is joint cannot as a matter of course be treated as joint family property. The coparcener who challenges such title in the member and pleads that they should also be brought to the hotch-pot, ought to establish by cogent and mature evidence that there was enough surplus income which was available in the joint family and which positively could be the foundation for such annexures made by one or the other of the members of the joint family. In the absence of such nexus between the purchase price of the purchased properties and the available surplus of the joint family, the presumption that the properties in the names of the members of a coparcenary should automatically be treated as joint family properties would fail. In all cases definite proof is required that the further purchase in the name of joint family members ought to have been made and could not have been made otherwise than from the surplus income of the family. For a greater reason, the rule is more strict in the case of properties in the name of female members. From time immemorial it has become customary amongst Hindus at any rate for females to have properties of their own. Even our Sastras describe such property of a female as Stridhana property. Therefore, the concept that a female could own properties of her own is an age-long concept. If this concept therefore has been an accepted one from ages, then the fact that a female member in a joint family has properties in her own name would not necessarily lead to the conclusion that the origin of such properties should be traced to the joint family or Income from the joint family. This principle also is well established.
19. In Nagayasami Naidu v. Kochadai Naidu, , the Division Bench of this Court consisting of Ramamurti, J. and Alagiriswami, J., as he then was, upheld the whole some principle and said it is for the parties who claim properties as joint family properties to specifically plead the particulars and details in the pleadings and establish the same by adducing evidence. If there is no pleading and if on the side of the plaintiffs there is no evidence, there is no need for detailed scrutiny of the case of female members or persons claiming through them, as to the resources of the female members and as to how they acquired the properties in question. More stronger language is not necessary to reject the contention of the plaintiff in the instant case that the properties which stood in the name of Pattathammal are to be deemed and held as her own properties. Excepting for the bare ipse dixit of the plaintiff, there is no acceptable material for us to reject the real title of Pattathammal in the properties purchased by her in Tholuvur Village. There is also evidence in this case that Pattathammal's parents were rich and that they provided the necessary funds to Pattathammal to purchase the properties. Incidentally the plaintiff's case is that such properties were held by Pattathammal benami for the family. The theory of benami also depends on express pleadings followed up by clear proof. There is, of course, pleadings in this case but proof is completely absent."
7. In this case, the onus is not one the 1st defendants to prove that the suit properties standing in her name have not been purchased from the joint family nucleus. The Courts have held that when properties stand in the name of female member, evidence should be very strong to the effect that the said properties were purchased in her name from the nucleus of the joint family. The Division Bench of this Court in Kandaswami Chettiar v. Gopal Chettiar, 1975 (II) M.L.J. 184, while dealing with similar case has held as follows:-
"17. On a fair reading of the evidence let in by the plaintiff, we are unable to find as to what was the income of the joint family and even if there was any income from the so-called joint family trade, what was the surplus, which was available to enable the co-parceners of the family to augment the same by purchasing properties. The plaintiff has come to Court with a definite case that the properties described in schedule B-l, C and G are joint family properties. He cannot merely plead such a fact without proving them by acceptable material. We are unable to hold that the second defendant was dubbed as the manager of the family. More reliable evidence is required to impress on the second defendant the badge of a joint family manger. There is not even a whisper either in the pleadings or in the witness box by the plaintiff or his witnesses that the joint family income was handed over to the second defendant for purchase of other properties in the names of the fifth defendant or the seventh defendant, If a co-parcener desires to establish that a property in the name of a female member of the family or in the name of the manager himself has to be accepted and treated as property acquired from the joint family nucleus, it is absolutely essential that such a co- parcener should not only barely plead the same, but also establish the existence of such a joint family funds or nucleus. Even if the joint family nucleus is so established, the presumptions that the accretions made by the manager or the purchase made by him should be deemed to be from and out of such a nucleus does not arise, if there is no proof that such nucleus of the joint family is not an income- yielding apparatus. The proof required is very strict and the burden is on the person, who sets up a case that the property in the name of a female member of the family or in the name of the manager or any other co-parcener is to be treated as joint family property. Such burden could be said to have been discharged and the usual presumption that such acquisitions are attributable to the joint family nucleus and its income would not automatically arise, but would depend on the proof of the availability of such surplus income or joint family nucleus on the date of such acquisition or purchases. The same is the principle even in cases where moneys were advanced or mortgages over immovable properties. That such a presumption would arise only in the above circumstances are now very well established.
... .... ....
22. Before parting with the case, we have to also consider the nature of proof required, when the property is secured in the names of female members of the family or female relatives. No doubt, the Supreme Court in Narayanaswami v. Ramakrishna, , after noticing the fact, that the acquisitions were made in the name of the Karta's wife, his son etc., held on a consideration of the evidence that it did not appear that the joint family had at the date of the acquisitions made sufficient nucleus from which these properties could be acquired. In that context, the learned Judge said:
'Where in fact at the date of acquisition of a particular property, the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown.' A Division Bench of this Court consisting of Ramamurthi, J. and Alagiriswami, J., had occasion to consider the judgment of the Supreme Court in Narayanaswami v. Ramakrishna, , in Nagayasami v. Kochadai, . There, or Court said:
'There is no essential distinction as to the scope of the presumption in the case of acquisitions in the names of male members of a joint family. In the case of male members of a joint family, there is a presumption that if the joint family had sufficient ancestral nucleus, the properties standing or acquired in the name of junior members are joint family properties unless the presumption is rebutted by showing that the properties are separate properties of the particular member or members in whose names the properties stand or were acquired. There is no such presumption in the case of properties standing in the name of female members. In the latter case, it is for the party, who claims properties as joint family properties, to specifically plead the particulars and details, in the pleadings and establish the same by adducing necessary evidence. If there is no pleading and if on the side of the plaintiffs there is no evidence, there is no need for detailed scrutiny of the case of the female members or persons claiming through them, as to the resources of the female members and as to how they acquired the properties in question. If the plaintiff on whom the burden lies adduce no evidence, no further question arises and the female member in whose name the property stands, must be held to be the beneficial owner of the property in question.' ... ... ....
24. In the light of the above well said and well laid principles of law, we are unable, with great respect, to approve of the decision in Ramudu Mudaliar v.
Ellammal, . There, Raghavan, J., observed thus:
'When a family continues to be a joint family, there is no reason why the purchase by a member in a revenue auction should be exclusively for himself and not for and on behalf the family of which he was a member. It is, of course, open to a member of a joint Hindu family to acquire property in his own name. But the acquirer has to establish that he fund for the purchase did not come from the joint family funds but that it was his own.' With great respect to the learned Judge the onus is not on the acquirer to prove that the property standing in his name was purchased from joint family funds, that may be so, in the case of manager of the joint family, but not so in the case of all co-parceners. For a greater reason it is not so in me case of female members. We are, therefore, of the view that in the absence of any evidence in this case that there was such income- yielding apparatus in the nature of a joint family properties being available to the co-parceners even for purposes of enjoyment, as in this case the mother is admittedly enjoying the income therefrom, we are unable to hold that the properties described in schedule B-l, C and G ought to be deemed and considered as joint family properties. The properties in the name of the female members and female relatives respectively of the family such as the fifth and seventh defendants should stand without being disturbed. This is so because the plaintiff has failed to prove that on the date of acquiring these properties, the family had sufficient income from which the disputed accretions or acquisitions might have been made."
8. The Orissa High Court also has taken similar view in the decision in Manohari Devi v. Choudhury Sibanaca Das, , following the view taken by this Court in Nagayasami Naidu v. Kochadai Naidu, , and has held as follows:-
"Learned Counsel for the respondents have urged that the presumptive doctrine enunciated in the aforesaid decisions applies to acquisitions in the names of male members of a joint family; it has no application in the case of acquisitions in the names of female members of a joint family. In support of this stand learned counselrely on the case of Nagayasami Naidu v. Kochadai Naidu, wherein it was held, '18.A. We will now take up for consideration point No.2, i.e. the character of the properties set out in schedules B to E. This is discussed in paras 66 to 72 of the Judgment of the learned Judge. The teamed Judge has proceeded on the footing that as the family owned sufficient nucleus, which would yield an income between Rs.12,000 and Rs.16,000 per annum, all the properties set out in schedules B to E must be held to be joint family properties, as they could have been acquired with the assistance of ancestral nucleus inasmuch/as defendants 2, 3, 4 and 5 who claimed these properties ass their own separate properties have not made out their own separate resources with which these properties could have been or were acquired. Even at the outset, it has to be mentioned that the entire perspective approach is not correct There is an essential distinction as to the scope of the presumption in the case of acquisitions in the names of male members of a joint family, there is a presumption that if the joint family had sufficient ancestral nucleus, the properties standing or acquired in the name of junior members are joint family properties unless the presumption is rebutted by showing that the properties are the properties of the particular member or members in whose names the properties stand or were acquired. There is no such presumption in the case of properties standing in the name of female members. In the latter case, it is for the party who claims properties as joint family properties to specifically plead the particulars and details, in the pleadings and establish the same by adducing necessary evidence. If there is no pleadings and if on the side of the plaintiffs there is no evidence, there is no need for detailed scrutiny of the case of the female members or persons claiming through them, as to the resources of the female members and as to how they acquired the properties in question. If the plaintiff on whom the burden lies adduces no evidence, no further question arises and the female member in whose name the property stands, must be held to be the beneficial owner of the property in question."
9. Now, it has to be appreciated whether the plaintiffs have discharged their burden, as held in the abovesaid decisions. Of course there is pleading to the effect that the suit properties were purchased from out of the joint family income. But, unfortunately, no evidence note worthy has been adduced by P.W.1, to show that the suit properties were purchased in the name of the 1st defendant from out of the joint family nucleus though P.W.3 has come forward with the plea that the suit properties were purchased from out of the income of deceased Veeramuthu, no particulars regarding the same were given. Except the. vague statement, no other acceptable evidence is available before the Court to accept the case of the plaintiffs.
10. Moreover, the plaintiffs have come forward with the specific plea that in the panchayat held, the panchayatdars agreed that the parties have to enjoy the "C" schedule properties commonly and they have to share the income therefrom. Unfortunately, P.W.2 even in chief-examination has stated that the parties had not accepted for such enjoyment of the said income. This fact itself would clearly show that the 1st defendant did not agree to part with the income from the "C" schedule properties, even in the panchayat. The learned counsel for the respondents/plaintiffs has submitted that the trial Court is correct in holding that the "C" schedule properties were purchased in the name of the deceased Veeramuthu from out of the joint family income, since the 1st defendant has not established that she purchased the same from Out of her funds. The learned counsel has also pointed out some evidence to show that the 1st defendant did not have any income. As stated earlier, the burden is on the plaintiffs to establish that there was nucleus in the joint family so as to enable them to purchase the suit properties in the name of the 1st defendant. In the absence of any materials on the side of the plaintiffs, the learned counsel cannot rely on the evidence adduced on the side of the defendants to submit that since the defendants have not established their case, the suit has to be decreed as prayed for. The trial Court, unfortunately, without understanding the basic principles of law regarding the same, had decreed the suit, and passed a preliminary decree as if the 1st defendant has not established her case.
11. For the foregoing reasons, the judgment and decree of the trial Court are set aside. Consequently, this Appeal is allowed accordingly. No costs.