Madras High Court
Sivakumar vs Gopalakrishnan on 13 December, 2019
SA(MD)Nos.690 & 691 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 22.09.2023
PRNOUNCED ON: 20.10.2023
CORAM:
THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN
S.A.(MD) Nos.690 & 691 of 2020
and
CMP (MD) No.7207 of 2020
Devaki
1. Sivakumar
2. Prabu Ram
3. Shanmugam
4. Chandrasekaran
5. Arumugam
6. Suganya
7. Saravanan
... Appellants in both appeals
Vs.
1. Gopalakrishnan
... Respondent in both the appeals
nd
2.Sridevi ... 2 Respondent in SA.No.690 of 2020
Common Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree dated 13.12.2019 passed in
A.S.Nos.97 & 98 of 2018 respectively on the file of the VI Additional
District Court, Madurai reversing the judgment and decree dated 28.08.2018
passed in O.S.No.1018 of 2010 & O.S.No.123 of 2009 respectively on the
file of the III Additional Subordinate Court, Madurai.
1/26
https://www.mhc.tn.gov.in/judis
SA(MD)Nos.690 & 691 of 2020
For Appellant : Mr. M.V.Venkataseshan
Senior Counsel
for Mr.S.Vellaichamy
For Respondents : Mr.N.Vallinayagam for R1
R2-No Appearance in SA(MD).No.690/2020
****
COMMON JUDGMENT
S.A.No.690 of 2020 arising out of a suit in O.S.No.1018 of 2010 for partition filed by the appellant herein against the respondents. SA.No. 691 of 2020 arising out of O.S.No.123 of 2009 for the relief of delivery of possession, filed by the first defendant in OS.No.1018 of 2010 as the plaintiff. The appellant and the respondents in both the appeals are the children of one deceased Marnadu.
2. Pleadings in O.S.No.123 of 2009:-
(a) Brief averments of the plaint in OS.No.123 of 2009:-
According to the plaintiff, the suit property is absolute property of the plaintiff by virtue of the Sale deed dated 09.12.1999. The defendants 1 to 5 are his siblings, and on the permission granted by the plaintiff, they have been residing in the first and second floors of the suit property. Whereas, the plaintiff is residing in the ground floor. According to this plaintiff, the possession of the defendants is under the permission of the plaintiff. It is the 2/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 submission of the plaintiff that the defendants has their own houses and let out their house and receiving rents. Now that the first and second floors are required for the plaintiff. When the plaintiff requested the defendants to vacate the premises, for one reason or the other, they have been delaying the same. In this regard, the plaintiff has sent a legal notice, for which, the defendant has sent a untenable reply. Therefore, the plaintiff seek for the relief of delivery of possession of the first and second floors of the suit property.
(b). The written statement in OS.No.123 of 2009 in brief is as follows:-
These defendants admit the relationship. According to these defendants, the suit property is not the absolute property of the plaintiff, on the contrary, the same is a joint family property and that these defendants have been in a possession and enjoyment of the suit property as joint owners. It is the specific submission of these defendants that the suit property has been purchased from and out of ancestral nucleus and through the joint family income derived from “Sri Devi Sweets”. These defendants further submit that the plaintiff has also purchased two other house properties at Solaiazhagupuram in the year 2005 from and out of the joint family income. It is the submission of these defendants that they are enjoying the first and 3/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 second floor of the suit property only in the capacity as the joint family members, and the plaintiff has no right to direct the defendants to vacate from the suit property. Therefore, the defendants prayed to dismiss the suit.
3. Pleadings in O.S.No.1018 of 2010:-
(a). Brief averments of the plaint in OS.No.1018 of 2010:-
The plaintiffs in OS.No.1018 of 2010 are the defendants in OS.No. 123 of 2009. The first defendant in OS.No.1018 of 2010 is the plaintiff in O.S.No.123 of 2009. According to the plaintiff, the first item of the suit property was purchased from the joint family income and ancestral nucleus.
It is the submission of the plaintiff that the first defendant has no separate income of his own, except coparcenary income of the Sweet stall till2006. Though the first item of the property stands in the name of the first defendant, the same is only the joint family property. It is also the submission of the plaintiff that the items 2 & 3 of the property were purchased in the name of the first defendant, being the elder member and Karta of the joint family through the joint family income derived from the “Sri Devi Sweets”. Therefore, according to the plaintiff even the suit property items 2 and 3 are the joint family property and that the plaintiff is having right over the same. Hence, the plaintiff has come forward with the relief of partition to divide the suit property into 7 equal shares and to allot 4/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 the five equal shares to the plaintiffs jointly.
5. The written statement of the first defendant in OS.No.1018 of 2010 in brief is as follows:-
This defendant disputes the contents made by the plaintiff. It is the submission of the first defendant that there was no joint family business and there was no ancestral nucleus. According to this defendant, he earned for the benefit of the family from his tender age of 15 years and he also undertook coolie work even when he was 14 years of old. It is the further submission of the first defendant that he left his house and went to Madras so as to earn for the family, and upon the income he derived from such work, he used to send a sum of Rs.1,200/- to his family. The plaintiff further submits that he joined his father at the age of 19 in the “Sri Devi Sweets”. In the year 1992, “Sri Devi Sweets” was commenced in a rental building, and during the year 1998, the said building has been purchased in the joint name of the plaintiff and his 4 brothers. After the demise of his father during 1997, the plaintiff separated from the defendants and they have jointly occupied the defendant's right in Sri Devi Sweets building and force the defendant to separate his business. Hence, he commenced his own business under the name and style of “Kamala Sweet Stall”. According to this defendant, 5/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 plaintiffs 2 to 5 are running the business of “Sri Devi Sweets”. It is the submission of this defendant that since 1998 the plaintiffs 1 to 5 separated. Since the first defendant has interest over the welfare and development of their brothers and sisters, he requested them to stay in the first item of the property. The plaintiffs each of them have purchased house site and own the income derived from the “Sri Devi Sweets”. This defendant further submits that, for the marriage of the first plaintiff, he had assisted his father and that this defendant gave 25 sovereigns of gold, and have spent more than Rs.2.00 lakhs. Hence, this defendant submits that the suit for partition is liable to be dismissed. In his additional written statement, he disputes the existence of ancestral nucleus.
6. Evidence & documents:-
Before the Trial Court, both the suits in OS.Nos.123 of 2009 & 1018 of 2010 were taken together and the documents have been marked in O.S.No.123 of 2009 and the suit has been disposed of by way of a common order. The evidences and documents have been marked in O.S.No.123 of 2009. The plaintiff has examined 3 witnesses as P.W.1 to P.W.3 and has marked 15 documents as Exs.A1 to A15. On behalf of the defendant, 2 witnesses were examined as D.W.1 & D.W.2 and 4 documents have been marked as Exs.B1 to B4.
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7. Findings of the Trial Court and First Appellate Court:-
The Trial Court, after considering the evidence of either side and materials on record, have ultimately granted the relief of partition and dismissed the relief of delivery of possession. It was the findings of the Trial Court that the plaintiff in O.S.No.123 of 2009 has not proved his absolute ownership of the first item of the property, and it is also the finding of the Trial Court that since the plaintiff has not established his absolute right, and having admitted the existence of the joint family, ultimately granted the relief of partition. Aggrieved with the same, the plaintiff in O.S.No.123 of 2009 preferred the First Appeal in A.S.Nos.97 & 98 of 2018. In which the First Appellate Court has concluded that the initial burden is rest upon the defendants in OS.No.123 of 2009. It was also the finding of the First Appellate Court that mere existence of the joint family is not sufficient and what is essential is that it is the duty of the parties, who plead the joint family property, have to prove sufficient joint family nucleus for the purchase of the property. It is the findings of the First Appellate Court that, when the person, who pleads the joint family, fails to prove the existence of the sufficient joint family nucleus, so as to purchase the suit property, the burden never shifts upon the parties, who plead the absolute right over the same. It was also the finding of the First Appellate Court that, there is no joint family nucleus and 7/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 ultimately decreed the suit in O.S.No.123 of 2009 and dismissed the suit for partition in OS.No.1018 of 2010. Aggrieved with the same, the defendant in O.S.No.123 of 2009 and plaintiff in O.S.No.1018 of 2010 is before this Court by way of the Second Appeal.
8. Since the suit in O.S.Nos.123 of 2009 & 1018 of 2010 have been disposed of by way of a common order, for the sake of convenience, this Court deems it appropriate to refer the litigative status of the parties according to their rank in O.S.No.123 of 2009.
9. Submissions of either side counsels:-
The learned senior counsel for the defendant/appellant would contend that the finding of the First Appellate Court resting the burden upon the defendant is erroneous. It is the further contention of the learned senior counsel that, when there is a proof for running Sweet Stall under the name and style of Sri Devi Sweets, and when there is an admission that the plaintiff/respondent has joined in the Sri Devi Sweets along with his father, still the findings of the First Appellate Court that there is no joint family and joint family nucleus, and has shifting the burden to the defendants is contrary to the settled legal principles of law. The learned senior counsel would vehemently contend that the very sale of the ancestral property under Ex.B4 dated 24.06.1992, in which, the plaintiff/defendant was a party to the 8/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 document cannot plead the non existence of the ancestral joint family nucleus. Therefore, would contend that the very finding of the First Appellate Court is erroneous and liable to be reversed and prayed to dismiss O.S.No.123 of 2009 and grant relief of partition as prayed in O.S.No.1018 of 2010. The learned senior counsel relied on the following judgement in support of his contention:-
1. Mallesappa Bandeppa Desai and another Vs.Desai Mallappa alias Mallesappa and another reported in AIR 1961 SC 1268;
2. K.V.Duraisamy and another Vs. D.Perumalsamy (Minor) and another reported in 1993 II MLJ 613;
3. Sonnappa Iyer Vs. K.R.Ramuthaiammal and 6 others reported in 1994-LW-273;
4. P.R.Kannaiyan (died) & 7 others Vs. Ramasamy Mandiri & 10 others reported in 2005-3-L.W.627.
10. Per contra, the learned counsel for the plaintiff/respondent would contend that though the defendants marked Ex.B4 viz., the Sale of ancestral property, the recital of those documents would exemplify that the sale was necessitated only to discharge the family dues and that since the father of the plaintiff and the defendant namely Late.Marnadu was having a big family, and he was under the debt and only to discharge those debts, he 9/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 sold the property and that the said recital is very much available in those documents. Therefore, vehemently submitted that there could not be any surplus beyond the debt. It is the further contention of the learned counsel for the respondent/plaintiff that the mere existence of the joint family is not sufficient to bring the suit property as the joint family property, and it is very much essential that the availability of the sufficient joint family nucleus so as to purchase the property. Therefore, would contend that the suit property items 1 to 3 are the self acquired properties of the plaintiff/respondent and that by virtue of Section 54 of Transfer of Property Act, the presumption relied by the First Appellate Court has to be upheld by dismissing the suit for partition. Thus, the learned counsel for the plaintiff/respondent would prayed for the dismissal of both the Second Appeals. 10/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020
11. The Second Appeals are in the admission stage and in the Second Appeals, they have proposed the following substantial questions of law:-
“a. Whether the lower appellate Court is right in reversing the well-considered judgment of the trial Court when the joint family nucleus and source of formation of joint family was proved under Ex.B4 dated 24.6.1992.
b. Whether the lower appellate Court is right in reversing the judgment of the trial Court, when the starting of joint family business of Sridevi sweet stall by the father and the continuation by the appellant and respondents were undisputed facts on record.
c. Whether the lower appellate court is right in ordering recovery of possession when without praying for declaration when the individual right of the respondent was put in issue.”
12. Analysis of the submissions:-
From the submissions of either side and from the finding of the Trial Court as well as the First Appellate Court, before we go into the merits of the matter, this Court deems it appropriate to find out, against whom the burden of proof lies. The Trial Court, in its finding, has rest the burden of proof with the plaintiff on the premise that the plaintiff has admitted the existence of the joint family as he has assisted his father along with other 11/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 brothers in the Sri Devi Sweets. However, the First Appellate Court has repelled the said finding and rest the burden upon the defendant on the ground that the mere existence of the joint family is not sufficient and the existence of sufficient joint family nucleus for the purchase of the property is essential. If the sufficient joint family nucleus is established, then only the burden can be shifted, to prove the suit property is the absolute property.
13. In order to analyse this aspect, this Court deems it appropriate to rely upon few judgments. It is pertinent to mention the judgment in Bhagwat Sharan (Dead through legal representatives) Vs. Purushottam and others reported in (2020) 6 SCC 387, wherein the Hon’ble Supreme Court, after referring various judgments, has ultimately hold that, unless there is material on record to show the existence of joint family nucleus, or that it was purchased through the funds coming out of the nucleus, such property cannot be construed as the joint family property. In the said judgment, the Hon’ble Supreme Court has relied upon the judgment of the Randhi Appalaswami Vs. Randhi Suryanarayamurti reported in 1947 SCC OnLine PC 42 and the judgment of the D.S.Lakshmaiah Vs. L.Balasubramanyam reported in (2003) 10 SCC 310. The relevant portion of the judgment in Bhagwat Sharan's case is paragraph 11 and the same is as follows:-
12/26
https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 “11. The Privy Council in Randhi Appalaswami V. Randhi Suryanarayanamurti held as follows: (SCC OnLine PC) '... The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established 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 burden shifts to the party alleging self- acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.” ((Emphasis supplied by this Court)
14. After analysing the above judgment, in paragraph 21, the Hon’ble Supreme Court has ultimately held as follows:-
“21. An admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein. It is in this light that we have to examine the admission made by Hari Ram and his brothers while filing the written statement to the suit filed by Seth Budhmal. In Para 6, the averment was that the defendants constituted trading joint Hindu family. It is obvious that the admission was with regard to a trading family and not HUF. In view of the law cited above, it is clear that not only jointness of the family has to be proved but burden lies upon the person alleging 13/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus. In our opinion, this has not been proved in the present case. Merely because the business is joint would not raise the presumption that there is a joint Hindu family. As far as Para 8 is concerned, in our view, there is no clear-cut admission. The allegation made was that the minors were represented by Defendants 1 to 3, who were head of their respective branches. In reply to this it was stated that Defendants 1 to 3 were neither the head or the karta, nor was the mortgage transaction made in that capacity. This admission cannot be said to be an unequivocal admission of there being a joint family.” (Emphasis supplied by this Court)
15. In D.S.Lakshmaiah's case (cited supra), the burden is rest upon the person who assert that the property is a joint family property, and only if he proves the existence of sufficient joint family nucleus, the onus could shift on the person, who claims it to be self acquired property. The relevant portion of the judgment in D.S.Lakshmaiah's case (cited supra) is paragraphs 17 and 18 and the same are as follows:-
“17. In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from 14/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 Item 2 property and no other nucleus was claimed, the burden remained on the respondents to establish that Item 1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents' claim of Item 1 to be joint family property would fail as rightly held by the first appellate court.
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.” (Emphasis supplied by this Court)
16. Even the judgment relied upon by the respondent/plaintiff in Appasaheb Peerappa Chamdgade Vs.Devendra Peerappa Chamdgade and others reported in (2007) 1 SCC 521 is also on the above line. The relevant portion of the judgment is paragraph 17 and the same reads as follows:
“17. Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu family but on 15/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self- acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence.”
17. Even the Hon’ble Division Bench of this Court in a judgment in R.Deivanai Ammal (Died) and another Vs. G.Meenakshi Ammal and others reported in 2004 (4) CTC 208, after referring various judgments, from C.V.Vythinatha Aiyar Vs. C.V.Varadaraja Iyer and others reported in 1938 (1) MLJ 216, has held in paragraph 15 and the same reads as follows:-
“15. It is a well-established principle of law that where a party claims that any particular item of 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 arise if the nucleus is such that with its help the property claimed to be joint could not have been 16/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 acquired. In order to give rise to the presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus should 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 nucleus out of which acquisitions could be made even though it might be of considerable value.”
18. Therefore, the ratio enunciated in those rulings would be, when a party claims that particular items of the property is joint family property, then the burden of proving such property is a joint family property is rest upon the party, who affirms it. Only after establishing such factum, and after establishing the availability of some form of nucleus and its relative value, which would become the probable nucleus to purchase such property, then only the presumption would arise to consider those properties are the joint family property, and the burden would shift to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family.
19. If we consider the instant case with above background, the specific case of the defendant is that the suit properties, more particularly, item 1 to 3 were purchased out of the joint family business and income of 17/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 Sridevi Sweets which was started through the sale proceeds of the ancestral house property.
20. In this regard, the defendants have submitted Ex.B4 namely, the sale deed executed by Mr.Marnadu, father of the plaintiff and defendant along with the other brothers of late Mr.Marnadu. According to the defendants, out of total sale proceeds of Rs.45,000/-, their father Mr.Marnadu was entitled to 50%, and through which, the Sridevi Sweets was started. This was categorically objected and denied by the plaintiff, and he would contend that even according to the recitals of Ex.B4, Sale Deed, the sale was necessitated only to discharge the sundry debt and for family expenses.
21. The learned counsel for the plaintiff would submit that their father Marnadu had 7 children, and found it difficult to maintain the big family, which necessitated him to borrow amounts. Therefore, only to discharge those debts and for the family expenses, the suit property was sold. The First Appellate Court has rightly extracted the recitals relating to Ex.B4- sale deed “rhl;rpfs; Kd;dpiyapy; buhf;fkhf v';fs; FLk;g bryt[f;F rpy;yiwf; fld;fis jPh;g;gjw;fhf bgw;Wf; bfhz;L” and hold that there could not have been any surplus amount available from the sale of ancestral property, after 18/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 discharging the sundry debt and after meeting out family expenses.
22. It is pertinent to mention here that the existence of surplus cannot be presumed, and the same has to be substantially proved. Absolutely, there are no proof filed before this Court as to the availability of the surplus amount from the sale of ancestral property through Ex.B4.
23 Besides, the above contention of the plaintiff, the case of the plaintiff was further vindicated from the admission made by the cousin of the plaintiff and the defendants. The said admission also was extracted by the First Appellate Court. For ready reference, the same is extracted hereunder:-
**vdJ mk;khtpwF ; thjpapd; mg;gh khuehLt[k.; thjpapd;
rpj;jg;gh gukrptKk; nrh;eJ
; fpiua Mtzk; U:/45.000 f;F
vGjpf;bfhLj;jhh;fs; vd;why; rhpjhd;/ mf;fpiuaj;bjhifia thjpapd; mg;ght[k;. rpj;jg;ght[k; g';fplL ; f; bfhz;lhh;fs; vd;why; rhpjhd;/ thjpapd; rpj;jg;gh kJiu tpuhl;ogj;jpy; FoapUf;fpwhh;/ thjp. gpujpthjpapd; mk;kh. gps;isfspd; rpWtajpnyna ,we;Jtpl;lhh; vd;why; rhpjhd;/ mth; ,wf;Fk;nghJ thjpf;F Rkhh; 12 taJ ,Uf;Fk;/ thjpapd; rnfhju rnfhjhpfSf;F mijtpl taJFiwt[jhd;/ 1992k; Mz;oy; vdJ jhahUf;F thjpapd; mg;ght[k.; rpj;jg;ght[k; fpiua Mtzk; vGjpf; bfhLj;jhh;fs;/ mg;nghJ thjpapd; jhahh; capUld; ,y;iy vd;why; rhpjhd;/ thjpapd;
jhahh; ,we;J ,uz;L Mz;LfSf;F gpd;dh;. mf;fpiua Mtzk; vGjpf; bfhLf;fg;gl;lJ/ mr;rkaj;jpnyna thjp nfhghyfpUc&;zd; 19/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 mtuJ jfg;gdhUld; nrh;eJ ; ntiyf;Fr; brd;W te;jhh; vd;why;
rhpjhd;/ thjpapd; jfg;gdhh; Kjypy; Typntiy bra;jhh;/**
24. Therefore, if we harmoniously read the recitals in Ex.B4-Sale deed and the evidence of DW2 would emphasis and reflect that, there could not have been any ancestral nucleus from the sale of the ancestral property. On facts, the findings arrived at by the First Appellate Court is based upon the materials. Therefore, mere existence of the ancestral property and its sale will in no way shift the burden to the plaintiff to prove his self acquisition. As long as the surplus nucleus is not shown, the burden will never shift to the party, who pleads self acquisition.
25. The learned senior counsel for the appellants/defendants relied upon the judgment in K.V.Duraisamy's case (cited supra) and would contend that when there are existence of a joint family nucleus, the self acquisition has to be proved by the person, who pleads such defence. But in this reported judgment, the existence of the joint family nucleus was admitted. Whereas in the case in hand, such fact is seriously disputed and the defendants have not established the same, except the existence of the mere joint family. To put it differently, the existence of the surplus joint family nucleus has not been proved. On the similar line, the learned senior counsel for the appellants/defendants relied on the judgment in Mallesappa's case 20/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 (cited supra) and would contend that the joint family Manager has to prove the self acquisition. The learned senior counsel also relied upon another judgment of the Hon'ble Division Bench of this Court in Sonnappa Iyer's case (cited supra) and would state that the burden is upon joint family Manager to prove the self acquisition. He also relied another judgment of the Hon'ble Division Bench of this Court in P.R.Kannaiyan's case (cited supra). In all those judgments, this Court has held that, when Karta has no income, then the burden is upon the Karta to prove the self acquisition.
26. This Court absolutely has no grievance or quarrel over the ratio of those judgments. But the fact of those reported judgments are that, the existence of surplus joint family nucleus has been proved. Here, though there were some admissions for the existence of the joint family business, admittedly, there are no proof that the joint family business has derived income so as to purchase the suit property. When there are no material available before this Court to prove the joint family nucleus in the purchase of the suit property, this Court cannot presume any joint family character of the suit property. Therefore, this Court is of the firm opinion that the judgment relied by the learned senior counsel for the appellants is not applicable to the facts and circumstances of this case.
27. In the case on hand, it is an admitted fact that the plaintiff has 21/26 https://www.mhc.tn.gov.in/judis SA(MD)Nos.690 & 691 of 2020 worked since his tender age of 14, which factum was admitted by the defendants. Admittedly, no proof has been filed that the plaintiff's father had a Sweet Stall business in the year 1992.
28. To recapitulate the above discussion, this Court is of the firm view that the defendants have miserably failed to prove the existence of the joint family nucleus for the purchase of the item 1 to 3 of the suit property in O.S.No.1018 of 2010 and admittedly, those properties stand in the name of Mr.Gopalakrishnan. Therefore, this Court holds that those properties are the absolute properties of Mr.Gopalakrishnan viz., the plaintiff. Once the property is absolute property, and when the defendants admit that they are in occupation of the item 1 of the suit property, the plaintiff has got every right to get vacant possession over the property.
29. According to the plaintiff, it is permissive possession, whereas the defence put forth by the defendants is that they are the joint owners. However, this Court disbelieves the case put forth by the defendants and this Court holds that the suit first item of the property is the absolute property of the plaintiff. Therefore, the plaintiff is entitled to have vacant possession of the suit property as prayed for.
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30. The learned senior counsel for the appellants has also made a feeble attempt that the judgment of the First Appellate Court is not in consonance with Order 41 Rule 31 of CPC and that the First Appellate Court did not frame any point for consideration and framed only omnibus point for consideration. Hence, contended that notwithstanding any other ground on this sole ground, the order of the First Appellate Court is liable to be set aside and the matter is remitted back to the First Appellate Court.
31. It is true that the First Appellate Court has framed an omnibus point for determination as to whether the appeal is to be allowed or not. However, if we harmoniously read the entire judgment, though no separate point for determination is framed for each issue, the First Appellate Court has gone into each and every issue and has ultimately arrived at a right conclusion. In this regard, it is useful to refer the judgment of the Hon'ble Supreme Court in G.Amalorpavam V. R.C.Diocese of Madurai reported in 2006-2-MLJ-63. As per the above ratio, on a harmonious reading of the judgment, if the Appellate Court has gone through each and every issue, then, only on the ground of framing of the omnibus issue, the appeals need not be remanded back.
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32. In view of the above detailed discussion, this Court could not find the existence of any substantial question of law. As a natural corollary, both the Second Appeals are liable to be dismissed.
33. In the result, both the Second Appeals are dismissed and thereby, the order of the First Appellate Court is confirmed. There shall be no order as to costs. Consequently, connected CMP is also closed.
20.10.2023
Speaking Order : Yes/No
NCC : Yes/No
Index :Yes/No
kmi
To
1.The VI Additional District Court,
Madurai.
2.The III Additional Subordinate Court,
Madurai.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
24/26
https://www.mhc.tn.gov.in/judis
SA(MD)Nos.690 & 691 of 2020
25/26
https://www.mhc.tn.gov.in/judis
SA(MD)Nos.690 & 691 of 2020
C.KUMARAPPAN, J.
kmi
S.A.(MD)Nos.690 & 691 of 2020
20.10.2023
26/26
https://www.mhc.tn.gov.in/judis