Madras High Court
Ramayee Ammal vs Ramasamy Gounder on 20 March, 2012
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/03/2012 CORAM THE HONOURABLE MR.JUSTICE P.DEVADASS S.A.(MD) No.22 of 2006 1.Ramayee Ammal 2.Sivakami ... Appellants/Plaintiffs Vs. 1.Ramasamy Gounder 2.V.R.Nachimuthu 3.Palanichamy ... Respondents/Defendants Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned Principal District Judge, Karur dated 31.10.2002 in A.S.No.48 of 2002 confirming the judgment and decree of the learned Subordinate Judge, Karur dated 22.02.2002 in O.S.No.373 of 1995. !For Appellants ... Mr.G.R.Swaminathan ^For Respondents ... Mr.K.Govindarajan * * * * * :JUDGMENT
The plaintiffs in the partition suit in O.S.No.373 of 1995, on the file of Subordinate Judge, Karur, are the appellants. They sought for 1/2 share in 4.93 acres situate in Thukkachi Village in Karur District, comprised in S.No.298/1.
2. It becomes necessary to note down certain relationships as set out in Ex.A.1 Genealogy.
MUTHU GOUNDEN ________________|_______________ | | THEVANNA GOUNDEN (died) ALAKIANNA GOUNDEN (no issues) (died) | _____________|_______ | | | NACHIMUTHU (died) NACHIMUTHU* MUTHUSAMY (adoption)* (died) (died) | | RAMASAMY | (1st defendant) NALLAMMAL | (died) NACHIMUTHU __________________| (2nd defendant) | | | KULANTHAISAMY RAMASAMY---RAMAYEE PALANICHAMY (died) |(wife/1st (3rd defendant) |Plaintiff) | SIVAGAMI (daughter/2nd Plaintiff)
* The issueless Thevanna Gounder adopted Natchimuthu, son of his brother Alakianna Gounder.
3. According to first plaintiff, wife of late Ramasamy, the suit property belonged to her husband. During his life time, as between him and the defendants, under Ex.A.4 partition deed dated 11.09.1992, the joint family properties were partitioned. While doing so, the suit property is omitted to be included in Ex.A.4. In the suit property, she and her daughter/2nd plaintiff, are entitled to half share, while the remaining half goes to the defendants and the properties were in their joint possession.
4. However, according to the defendants, Thevanna Gounder and Alagiyanna Gounder are sons of Nachimuthu Gounder. Thevanna was not having issues, while his brother Alagiyanna had two sons, namely, Nachimuthu and Muthusamy. In the circumstances, Thevanna adopted the said Nachimuthu as his son. Nachimuthu's son is 1st defendant, and his son is 2nd defendant and his son is 3rd defendant. The suit property is the absolute property of Thevanna. After him, it became the property of the defendants.
5. The trial Court framed necessary issues. During the trial, first plaintiff Ramayee examined herself as P.W.1 and marked Exs.A.1 to A.5, while the first defendant Ramasamy examined himself as D.W.1 and one Periasamy as P.W.2 and marked Exs.B.1 to B.12.
6. Appreciating the evidence, the trial Court came to the conclusion that Nachimuthu is the adopted son of Thevanna and the plaintiffs have not established that the suit property is their joint family property. It is the self-acquired property of Thevanna and by law of inheritance, it became the property of the defendants. Thus, the plaintiffs have no share in it. Thus, dismissed the suit.
7. Plaintiffs appealed to the District Court, Karur, in A.S.No.48 of 2002, which was dismissed by the District Judge, Karur on his concurring with the findings of the trial Court. As against the concurrent findings, the appellants have come to this Court by way of this second appeal.
8. At the time of admitting the second appeal, this Court formulated the following substantial questions of law for consideration:
(1) Whether the Courts below are right in shifting the burden on the plaintiffs/appellants when there is a well settled proposition of law that the initial burden of proof is on such person to prove that the properties are his self-acquired properties as a Manager of Hindu Joint Family?
(2) Are the Courts below right in dismissing the suit when the defendants claimed adverse possession as against the plaintiffs and has virtually accepted the title of the plaintiffs?
(3) Are the Courts below are not wrong in not decreeing the suit as prayed for when it is the case of the both the plaintiffs and the defendants were enjoying the properties in common till 1992?
9. According to the learned counsel for the appellants, Thevanna died issueless. The adoption of Nachimuthu by Thevanna has not been established. Suit property is their joint family property. Defendants did not establish any independent source of income for Thevanna to acquire the suit property. Ex.B.5 to B.9 and B.11 revenue records are for collection of land revenue and they are not title deeds and they will not give valid title to the defendants. In this perspective of the matter, the learned counsel would submit that the findings of the court below are flawed.
10. On the other hand, the learned counsel for the respondent would contend that the suit property is the self acquired property of Thevanna. A person may be a member of a joint family, but the property may not be joint family property unless it is established that it was acquired out of the nucleus of the joint family income. Establishing this is on the person, who alleges that it is a joint family property and on his discharge of the onus only dislodging of the same by the opposite party arises. (See CHINNAYYAN Vs. CHITHAMBARAM [1993 (II) MLJ 41] and SENGODAN Vs. DHARMALINGAM [1995 (I) MLJ 336]). The issueless Thevanna adopted his brother's son Nachimuthu, who is father of first defendant. He being his adopted son has been mentioned in some of the ancient documents, at a time, when there was no controversy between the parties. It is an ancient adoption, much prior to 1956. After passage of several years, proof of minute details of adoption is impossible. Based on the available material records, adoption can be established. (See DEBI PRASAD Vs. TRIBENI DEVI [AIR 1970 SC 1286]). Since suit is the absolute property of defendants' side, P.W.1's husband Ramasamy has not included it in his second will Ex.B.12 dated 10.06.1993. In this view of the matter, the learned counsel for the respondents would support the judgments of the Courts below.
11. Plaintiffs say that the property is the joint family property of plaintiffs and defendants. But, defendants say that it is the self-acquired property of their ancestor Thevanna Gounder. After him, his adopted son Nachimuthu and after him they have become its owners.
12. In the circumstances, the other limb of the contention of the plaintiffs is that Thevanna is their common ancestor, he did not adopt Nachimuthu, so, even if it is held to be Thevanna's self acquired property, plaintiffs and defendants are equally entitled to the property.
13. In view of the divergent pleadings, it becomes necessary to find out whether the suit property is joint family property or self-acquired property of Thevanna and whether Thevanna has adopted Nachimuthu.
14. Let us first decide about the relationship between the parties. Now, we recall the genealogy table, which we have already given in paragraph No.2 supra. The relationship stated therein were not disputed by both sides except the adoption of Nachimuthu by Thevanna.
15. Nachimuthu is the son of Alagianna, who is brother of Thevanna. Plaintiffs did not deny Thevanna was not having any issues.
16. Thevanna having adopted Nachimuthu has been pleaded by the defendants. So, the onus is upon them to establish it. (See NILIMA MUKHERJEE Vs. KANTA BHUSAN GHOSH [2002 (1) LW 71]).
17. In Exs.B.3 and B.4 mortgage bonds dated 30.06.1922 and 01.06.1927, Nachimuthu has been described as son of Thevanna. They are ancient documents. They came into being at a time when there was no controversy between the parties. The controversy between them arose only in 1995. In her cross- examination, P.W.1 did not deny that Nachimuthu is the adopted son of Thevanna. The Hindu Adoptions and Maintenance Act came into being in 1956. The adoption in our case was long before that. It is an ancient adoption. To establish the validity of such adoption, proof of minute details of it after passage of several decades would be now impossible. But, the factum of adoption has to be proved by the party who pleads it. (See DEBI PRASAD Vs. TRIBENI DEVI [AIR 1970 SC 1286]) Now, that has been established by documentary proof. In the face of such documents plaintiffs have no valid evidence to dislodge it. Thus, we have no hesitation to hold that Nachimuthu, a son of Alagianna is the adopted son of Thevanna, who is father of first defendant.
18. Now, we will pass on to the question as to the nature of the suit property, whether it is joint family property or self acquire property.
19. Plaintiffs say that it is joint family property. It is their plea. So, the onus is upon them to establish it. They must show that it was acquired out of the nucleus of joint family income. Thus, the initial burden is on the plaintiffs to prove that the suit property is the joint family property. If they discharge their this initial burden, then comes the duty of the defendants to dislodge it, namely, to prove that it is self acquired property. (See CHINNAYYAN Vs. CHITHAMBARAM [1993 (II) MLJ 41] and SENGODAN Vs. DHARMALINGAM [1995 (I) MLJ 336]).
20. Now, let us see, whether the plaintiffs have discharged their burden.
21. On 02.05.1891, under Ex.A.5, Thevanna and his brother Alagianna jointly purchased a property. Under Ex.A.2 sale deed dated 27.04.1901, Thevanna purchased the suit property from one Rama Gounder. In view of the joint purchase under Ex.A.5, learned counsel for the appellants would submit that the suit property also has been purchased jointly by the brothers under Ex.A.2 out of joint family income.
22. As per law, a person may be a member of joint family, but the property purchased in his name cannot be stated to be and presumed to be joint family property, unless it is proved that it has been acquired out of the nucleus of the joint family income. (See 1993 (2) MLJ 41 [supra]).
23. P.W.1's husband Ramasamy, few months prior to Ex.A.4 partition deed dated 11.09.1992 executed his Ex.A.3 Will dated 10.06.1992 bequeathing his properties, wherein he had included the suit property also, but later, in his second Will Ex.B.12, dated 10.06.1993, realising that he is not the owner of the suit property he had excluded the suit property.
24. Now, in this case, title deed for the suit property stands in the name of Thevanna. Long before that there was joint purchase under Ex.A.2. There is no acceptable evidence from plaintiffs to prove the existence of nucleus of joint family income and out of that the suit property was purchased under Ex.A.2 by Thevanna. So, plaintiffs have not discharged their initial burden, namely, that the suit property is their joint family, only thereafter defendants have to prove that the property is self acquired property of their ancestor Thevanna. Ex.A.2 sale deed shows that it is the absolute property of Thevanna.
25. In their written statement, defendants have also pleaded that in any event by their long, open and exclusive possession, they have acquired title to the property by adverse possession.
26. Exs.B.5 to B.9 and B.11 revenue records would show that the suit property has been in the continued possession of the defendants, that would falsify plaintiffs claim of common enjoyment of the property till 1995.
27. Although defendants are owners of the suit property, they have also alternatively put up a case of adverse possession. It does not mean that they have accepted the title of plaintiffs or it does not advance the case of plaintiffs. At the most the said plea of the defendants in the written statement may be taken as a cautious plea rather than admission of title of the plaintiffs.
28. In winding up our decision, we hold that the plaintiffs have failed to establish their initial burden of proving that the suit property is the joint family property.
29. The property was not in common enjoyment of both till 1992. The property is the absolute property of defendants' ancestor Thevanna, who adopted Nachimuthu, after him, defendants became owners of the suit property. In the circumstances, it cannot be held that by their plea in the written statement, defendants have accepted the title of plaintiffs.
30. Thus, we do not find any flaw in the concurrent findings of the Courts below. In the light of the above, the substantial questions of law are answered as against the plaintiffs.
31. In the result, this Second Appeal is dismissed confirming the decree and judgment of the trial Court/Sub Court, Karur made in O.S.No.373 of 1995 and the first appellate Court/Principal District Judge, Karur made in A.S.No.48 of 2002. No costs.
sj To
1.The Principal District Judge, Karur.
2.The Subordinate Judge, Karur.