Madras High Court
Thambiran Naicker And Anr. vs Duraiswamy Naicker And Ors. on 5 March, 1996
Equivalent citations: (1996)2MLJ207
JUDGMENT S.S. Subramani, J.
1. Defendants 1 and 2 in O.S. No. 76 of 1981, on the file of the Sub Judge's Court, Kancheepuram, are the appellants herein.
2. Plaintiff filed the suit for partition claiming one-fourth share in the plaint items. There are five schedules A to E. In so far as A Schedule items are concerned, there is no dispute between the parties and, therefore, a decree was granted by the trial court. But in respect of the other Schedules, the suit was dismissed.
3. Plaintiff preferred an appeal, where a decree was granted for C and D Schedule items also. Regarding B Schedule, the suit was dismissed. Regarding E Schedule, the same was given up. Defendants 1 and 2 are challenging the preliminary decree passed by the lower appellate court whereby it granted a share in the C Schedule item also.
4. Material averments in the plaint are:
One Kuppusami Naicker, plaintiff and defendants 1 and 2 and the husband of the third defendant constituted a Hindu undivided family. It is the case of the plaintiff that A Schedule items belong to the family and even during the lifetime of his father, he left the village to seek an employment at Madras and thereafter he was helping the members of the family with his meagre income. It is said that with the help of funds supplied by him, properties were purchased in the name of the father and also in the name of defendants 1 and 2 and also the deceased brother (husband of the third defendant). According to him, all these items purchased in the name of the brothers are all family properties and they are available for partition. B Schedule items which are scheduled in the plaint were purchased in the name of the wife of the third defendant and the wife of the first defendant. The case that is put forward is that only to shield those properties, the same were acquired by the brothers in the name of their wives. According to him, the female members have no source of inc ome, and those properties also formed part of the joint family assets.
5. In the written statement filed by the appellants, they contended that except the A Schedule items, the details of which are given in paragraph 6 of the written statement, the family did not possess any other items of properties, and there was no surplus income to acquire other properties. According to them, B and C Schedule properties are the acquisitions either by the family members or trip brothers without the aid of income from the family property, and the same are not available for partition.
6. The trial court, on the above pleadings, came to the conclusion that the palintiff has not proved that the family had surplus income to purchase the property. For the said purpose, it relied on certain allegations in the plaint whereby the plaintiffs had stated that the family income was meagre and, therefore, he had to leave the family house, seeking employment. The trial court also held that the case put forward by the plaintiff that he was helping the members of the family was also not proved since he himself was getting only a meagre income. Therefore, the case put forward by the plaintiff that all the properties are family properties was found against and for admitted properties, a preliminary decree was passed.
7. When the matter was taken in appeal, the lower appellate court reappreciated the entire evidence and came to the conclusion that in respect of B Schedule items, plaintiff cannot have any claim since it stands in the names of the female members of the family. The lower appellate court said that the properties which stand in the name of the family members cannot be treated as joint family properties. But in so far as C Schedule items were concerned, the court below was of the view that defendants 1 and 2 have no other source of income, and the plaintiff, though elder member of the family, was not in management and, therefore, defendants 1 and 2 and husband of the third defendant must be presumed to have taken the income and they are bound to explain how the other properties were purchased. In that view, the lower appellate court held that the C Schedule items are also family properties. D Schedule consists only two wells. There was no serious dispute regarding this item. A partition decree was granted in respect of this item.
8. At the time of admission of the second appeal, the following substantial questions of law have been raised for consideration:
(1) Whether the lower appellate court had kept in its mind the principle that in order to constitute a joint family property, they ought to have been acquired from a nucleus which is sufficient and adequate to have the later acquisitions, in addition to joint family properties already in existence, if any? and (2) Whether the lower appellate court had applied its mind to the ratio decidendi of this Court's decision in P. Kamakshi Ammal v. P. Venkatesan (1986)1 An W.R. 438, especially when the appellate court's judgment has been rendered on 31.7.1986?
9. Both these questions could be considered together. Learned Counsel for the appellants contended that on the basis of the allegations in the plaint, the finding of the lower appellate court cannot stand. It is true that in the plaint, plaintiff has stated that the family did not have any source of income except a small property and a residential building, and the income there from was not sufficient even to meet the day-to-day expenses, and that is why his father wanted him to get an employment at Madras. In the written statement filed by the appellants, they denied that allegation. It is stated in the written statement that the allegations contained in para 4 are false. It is equally false to aver that the income from the family was just sufficient for the running of the family'. So, even though the plaintiff has stated that there was no income, the same was denied in the written statement, and a reading of the written statement shows that the family was in affluent circumstances.
10. No argument can be put forward on the allegations in the plaint for the simple reason that the plaintiff never took the income from the properties. Even while the father was alive, he left the village and got employment at Madras. Even at the time of his father's death in 1954, the plaintiff was not in the village. Thereafter, it was defendants 1 and 2 and the husband of the third defendant who were taking the income. Naturally, the plaintiff who had not taken any income, is not competent to say the quantum. But the defendants who were taking the income said that the income from the properties are more than sufficient.
11. At the time when father died, he had five acres of agricultural lands. In the family partition, the father acquired nearly 1 Acre 80 cents of land, and it is in evidence that he also purchased share of one of his brothers. At the time when the father died, there was sufficient income for the family.
12. All B and C Schedule items were purchased after 1954, at a time when defendant 1 and 2 and the husband of the third defendant were in management. So, it is for them to show that the income from the family properties was in sufficient or it was not utilised for acquiring the other properties. Even though the plaintiff was the elder member, defendants were in management of the properties. Even though they were junior members of the family, the de facto management was with them. They did not have any other source of income except the income from the agricultural lands left by the father.
13. In Achuthan Nair v. Chinnammu Amma , their Lordships said thus:
Under Hindu Law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. But the principle is not applied to acquisition of properties in the name of a junior member of a tarwad (anandravan) under the Marumakkathayyam law. There is no presumption either way and the question has to be decided on the facts of each case. In the case of a property acquired in the name of the karnavan, however, there is a tarwad property and the presumption holds good unless and until it is rebutted by acceptable evidence....
14. In paragraph 10 of the said judgment, their Lordships held further thus:
If that be so, so far as the 1st defendant is concerned, there is a strong presumption that the said property was acquired from and out of the funds of the tavazhi; and, so far as the 4th defendant is concerned, in the circumstances of the present case the position is the same; though in law he was not the manager, we find he was in de facto management of the tavazhi properties, and, therefore, in possession of the tavazhi properties, its income and the accounts relating to those properties. Being in management of the properties, he stood in a fiduciary relationship with the other members of the tavazhi. Irrespective of any presumption, the said circumstances must be taken into consideration in coming to the conclusion whether the said property is tavazhi property or not.
15. Merely because the defendants are junior members, they cannot contend that it is for the plaintiff to prove the surplus income through which the other properties were acquired. The defendants who are in management are bound to account the management and their possession is that of a trustee. It is for them to prove that no part of the family income was made use of, for acquiring 'C Schedule items. A similar question came for consideration by this Court, and the same is reported in Sonnappa Iyer v. K.R. Ramuthaiammal and others (1994)1 M.L.J. 44, wherein a Division Bench of this Court has held thus:
The evidence on record conclusively shows that the first defendant had ancestral properties comprising of houses and was running a business which was also ancestral. He had no other source of income with which he could have purchased properties of his own. When there is no evidence as to his independent source of income and when he admittedly was the manager of the undivided family consisting of himself and his sons, the presumption under Hindu Law has to be drawn and the property should be presumed to be joint family property.
In this case, the burden of proof is really on the defendants, and they have failed to discharge the same. Presumption is against them. The appellants cannot take refuge on some allegations made in the plaint. The parties are aware of the real nature of the acquisition and how it was acquired. It cannot be expected of the plaintiff to say how it was acquired and when it was acquired. The best evidence that can be produced was not produced by the appellant.
16. Insofar as the B Schedule items are concerned, since the plaintiff has not preferred any appeal, I do not want to interfere regarding the same.
17. In the result, the substantial questions of law raised in this second appeal are all found against the appellants. The second appeal is dismissed with costs.