Madras High Court
K.V.Ramasamy vs K.V.Rahgavan on 4 August, 2009
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/08/2009 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM APPEAL Suit No.176 of 2001 & M.P.Nos.2 of 2007, 1 of 2008 & 1 of 2009 and Tr.A.S.No.282 of 2008 Appeal Suit No.176 of 2001: K.V.Ramasamy ... Appellant/ Plaintiff Vs. 1.K.V.Rahgavan 2.K.V.Sridharan 3.Lalitha Viswanathan 4.Jeyalakshmi Sridharan ... Respondents/ Defendants 2 to 5 Tr. Appeal Suit No.282 of 2008: K.V.Raghavan ... Appellant/ Plaintiff Vs. 1.K.V.Sridharan 2.K.V.Ramasamy 3.Lalitha Viswanathan ... Respondents/ Defendants 2 to 4 Appeal suits have been filed under Section 96 r/w Order 41 Rule 1 of C.P.C., against the common judgment dated 27.01.2000 passed in O.S.Nos.91 of 1992 & 109 of 1998 by the Principal Subordinate Court, Tirunelveli. !For appellant in A.S.No.176/2001 & 2nd respondent in A.S.No.282/2008 ... Ms.Hema Sampath, Senior Counsel, for Mr.R.Subramanian For appellant in Tr.A.S.No.282/2008 & 1st respondent in A.S.No.176/2001 ... Mr.M.Vallinayagam ^For respondents 2 to 4 in A.S.No.176/2001 & respondents 1 & 3 in Tr.A.S.No.282/2008 ... Mr.T.R.Rajagopalan Senior counsel, for Mr.T.R.Rajaraman :COMMON JUDGMENT
These appeal suits have been preferred against the common judgment rendered in Original Suit Nos.91 of 1992 and 109 of 1998 by the Principal Subordinate Court, Tirunelveli.
2.The appellant in Appeal Suit No.176 of 2001 as plaintiff has filed Original Suit No.91 of 1992 on the file of the trial Court for the reliefs of partition and separate possession of his 5/16th share in the suit properties, wherein the present respondents have been shown as defendants 2 to 5.
3.The appellant in Tr. Appeal Suit No.282 of 2002 as plaintiff has instituted Original Suit No.109 of 1998 on the file of the trial Court for the relief of perpetual injunction, wherein the present respondents have been shown as defendants 2 to 4.
Original Suit No.91 of 1992 :
4.The nubble of the averments made in the amended plaint is that the first defendant is the father of the plaintiff and defendants 2 & 3. The 4th defendant is the mother of the plaintiff and defendants 2 & 3. The 5th defendant is the wife of the third defendant. The plaintiff and defendants 1 to 3 have constituted a Hindu joint family. The father of the first defendant by name Sri.K.S.Veeraraghava Iyer has practiced as an advocate and he possessed of ancestral house and buildings at Srivaikundam and also possessed of 10.60 acres of nanja land and other punja lands at Thozhappanpannai Village. Even during his life time, he sold 4.10 acres of land which situates in Thozhappanpannai Village, the ancestral house and godown at Srivaikundam. He purchased property in Melaseval Village, which is being called as Achankulam. The first defendant and his elder brother by name K.V.Srinivasan have started a partnership business under the name and style of "Srinivasa Brothers" at Melaseval with the assistance of ancestral funds given by their father. The property which situates in Achankulam Village has been given to the said brother by their father. Out of the profits earned by them, they started a Rice Mill business and also Lorry Transport business under the name and style of "Srinivasa Brothers" Prop.Srinivasaraghavan Transports and after some time, the said brothers have partitioned the Buses and Lorries. The first item in the suit first schedule is ancestrally belonged to the first defendant and his brothers. In a partition, the said property has been allotted to the share of the first defendant. Therefore, the first item of the suit first schedule has become an ancestral property of the plaintiff and defendants 1 to 3. The plaintiff and second defendant have been residing in the said house. The third defendant has resided in the said house for some time and now he is residing in Vannarapettai, Tirunelveli. The plaintiff has finished his studies in the year 1970 and he started to assist his father and also paternal uncle in their business. The second defendant has completed his studies in the year 1974 and since he is a qualified engineer, he got appointment out-side. The third defendant, after finishing his studies, has also joined with the first defendant in the business. Out of joint efforts of the plaintiff and defendants 1 to 3, they purchased number of vehicles. In a partition effected between the first defendant and his brother K.V.Srinivasan, the first defendant has been given 5 Lorries and four Buses. After partition, the plaintiff and defendants 2 & 3 have worked in the transport companies of the first defendant. Out of their joint earnings and also out of joint family nucleus, the first defendant has started so many new businesses. Due to mis-understanding between the third defendant and plaintiff, the first defendant has taken one side. During January 1991 a mediation has taken place in the presence of elders of the family. The first defendant has agreed to divide all the properties amicably. He worked out value of his shares and also value of shares of his sons and it will show that all the properties are the joint family properties. Out of the joint family funds, the first defendant has purchased item Nos.4 & 5 of the first schedule in the name of the fourth defendant. Out of the joint family funds, a business by name "Balaji Finance" has also been started in the name of the 5th defendant who is none other than the wife of the 3rd defendant. During the pendency of the suit, the first defendant has passed away and therefore, his 1/4th share has to be divided into four shares and thus in aggregation the plaintiff is entitled to get 5/16th share in all the suit properties. Under the said circumstances, the present suit has been instituted for the reliefs sought for therein.
5.In the written statement filed on the side of the defendants 1, 3 to 5 it is stated like thus:
It is true that the father of the first defendant by name K.S.Veeraraghava Iyer has had his practice as an advocate at Srivaikundam and he earned a lot in his profession. But, it is false to say that all the ancestral properties are income yielding properties. All the ancestral properties have been under the cultivation of tenants and the tenants have become chronic defaulters and virtually no income has derived from the ancestral properties. The said K.S.Veeraraghava Iyer has sold 4 acres 10 cents of wet lands and also house properties in Srivaikundam. The remaining lands could not be sold due to tenancy trouble. Even during his life time, he sold the remaining ancestral lands. The first defendant and his brothers have not got any amount from ancestral lands. The father of the first defendant viz., K.S.Veeraraghava Iyer has left a huge liability to the tune of Rs.89,972/- and on 22.06.1954 in a sound disposing state of mind, he executed a Will, wherein he set out all his liabilities and also settled all his self-acquired properties in favour of the first defendant and his brothers. One of the brothers of the first defendant by name Srinivasa Iyer has got married in the year 1937 and his wife has hailed from a rich family and with the assistance of his wife's family, he started a Rice Mill business as early as 1939 at Melacheval. From the year 1943, the first defendant has worked along with his brother Srinivasa Iyer in his business and the said Srinivasa Iyer has paid considerable amount to the first defendant and subsequently the first defendant has entered into the business of Srinivasa Iyer as one of the partners. The Rice Mill belonged to partnership firm has already been sold by the first defendant and his brother Srinivasa Iyer. The first defendant and his brother Srinivasa Iyer on various occasions have lent financial assistance to Veeraraghava Iyyer. In respect of the self acquired properties of Veerarahgava Iyer, he bequeathed the same in favour of the first defendant and his brothers. The first item of the first schedule is the absolute property of Veerarahgava Iyer and the same has been bequeathed in favour of the first defendant and his brother. The first defendant has instituted Original Suit No.163 of 1988 on the file of the Subordinate Court for the relief of partition, wherein a compromise has been effected and in pursuance of the same, he has given Rs.70,000/- to each of his brother and got absolute interest in the first item of the suit first schedule. Therefore, the suit first item of the first schedule is the separate property of the first defendant. The first defendant and his brother Srinivasa Iyer have run a partnership businesses and they earned lot of money. The second item of the first schedule has not been properly described. The first defendant and his brother Srinivasa Iyer has purchased various properties out of their own earnings. Therefore, the second item of the first schedule is the separate property of the first defendant. On 02.05.1985 a partition has been taken place between the first defendant and his brother Srinivasa Iyer, wherein some movable properties have been allotted to the share of the first defendant and they are the absolute property of the first defendant. The third item of the suit first schedule is the separate property of the first defendant and he purchased the same on 22.07.1974. Likewise, the fourth item of the first schedule is the separate property of the 4th defendant and 5th item of the first schedule is also separate property of the 4th defendant. The 6th item of the first schedule is the separate property of the first defendant and he purchased the same under a registered sale deed dated 27.11.1968. The first defendant has executed a Will dated 28.06.1989 and subsequently he executed another Will dated 03.02.1992 and therefore, the first schedule of properties are not liable for partition. The properties mentioned in the suit second scheduled are also separate properties of the first defendant and the same are also not liable to be partitioned. The joint family, consisting of the plaintiff and defendants 1 to 3, has possessed of joint family funds to the tune of Rs.72,724.64 and the same has been divided amongst them.
There is no merit in the suit and the same is liable to be dismissed.
6.In the additional written statement filed on the side of the defendants 3 to 5, it is stated that the plaintiff has surreptitiously introduced in the amended plaint to the effect that the plaintiffs and defendants 1 to 3 are in joint possession and enjoyment of all the properties and to that effect no amendment petition has been filed and therefore, the present suit deserves dismissal.
7.On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after evaluating the evidence available on record, has dismissed the suit. Against the judgment and decree passed by the trial Court in Original Suit No.91 of 1992, Appeal Suit No.176 of 2000 has been preferred at the instance of the plaintiff as appellant on the file of this Court.
Original Suit No.109 of 1998:
8.The epitome of the averments made in the plaint is that the first defendant is the father of the plaintiff and defendants 2 & 3. The suit property is originally belonged to the father of the first defendant by name Veeraraghava Iyer and after his demise, the first defendant and his two brothers have succeeded the same. In a suit for partition, the first defendant has obtained the same and therefore, the same is the ancestral property of the plaintiff and defendants 1 to 3. The second defendant has resided in a portion of the house and likewise the third defendant has also resided in another portion of the said house. The second defendant has leased out a portion in which he lived and now he is residing in Vannarapettai. The plaintiff has requested the defendants 1 to 3 not to lease out the suit property to strangers. During the pendency of the suit, first defendant has passed away and now the defendants 2 & 4 have been making arrangements to lease out the suit property to third parties. Under the said circumstances, the present suit has been instituted for the reliefs sought for therein.
9.In the written statement filed on the side of the second defendant and adopted by the first defendant it is stated like thus; The suit property is not the joint family property of the plaintiff and other defendants. The suit property is the absolute property of the first defendant and in which the plaintiff is not having any semblance of right and therefore, the present suit deserves dismissal.
10.In the written statement filed on the side of the 4th defendant, it is stated that on 03.02.1992, the first defendant has executed a Will in favour of the 4th defendant in respect of the suit property and therefore, the plaintiff is not entitled to get the relief sought for in the plaint and altogether the present suit deserves dismissal.
11.In the additional written statement filed by the defendants 1 & 2, it is stated that the plaintiff has no right to seek the relief of perpetual injunction and therefore, the present suit is liable to be dismissed.
12.On the basis of divergent pleadings raised on either side, the trial Court has framed necessary issues and after pondering both the oral and documentary evidence has dismissed the suit. Against the judgment and decree passed by the trial Court, the plaintiff as appellant has preferred appeal suit in the District Court, Tirunelveli and subsequently the same has been transferred to the file of this Court so as to hear the same along with Appeal Suit No.176 of 2001.
13.Since common questions of law and facts are involved in both the appeals, common judgment is pronounced.
14.The conspectus of the case of the plaintiff in Original Suit No.91 of 1992 is that the first defendant, his father viz., K.S.Veeraraghava Iyer and his brothers have consisted of a joint Hindu Family and the same has owned 10.60 acres of nanja land. During the life of time of K.S.Veerarahgava Iyer, he sold 4.10 acres of lands which situates in Thozhappanpannai Village and also sold ancestral house and godown which situate in Srivaikuntam. He purchased properties in Melaseval Village, called Achankulam. The first defendant and his elder brother viz., K.V.Srinivasan Iyer has started a partnership business under the name and style of 'Srinivas Brothers' at Melaseval with the aidence of ancestral funds given by their father and subsequently they started Rice Mill business and Transport business by using joint family funds and thereafter a partition has been effected between the first defendant and his brothers, wherein the suit first item of first schedule has been alloted to the share of the first defendant and the first defendant by utilising joint family funds has purchased 4th and 5th items of first schedule in the name of his wife viz., 4th defendant herein and he has also purchased the remaining properties shown in the first schedule as well as in the second schedule and all the properties are joint family properties and in order to work out the share of the plaintiff, he instituted the present suit and during the pendency of the same, the first defendant has passed away and therefore, in aggregation the plaintiff is entitled to get 5/16th share in all the suit properties.
15.On the side of the defendants 1, 3 to 5, it has been elaborately contended that even though the erstwhile Hindu joint family consisted of K.S.Veeraraghava Iyer and his three sons has possessed of 10.60 cents of nanja land in Srivaikuntam, all the lands have been under the cultivation of tenants and nothing has come out and due to that the said Veeraraghava Iyer has sold 4.10 acres of land and also house properties for a sum of Rs.41,250/- and during his life time, he has sold the remaining properties and he has had roaring practice in advocate profession and thereby earned lot of money and out of his own volition and a sound disposing state of mind, he executed a Will dated 22.06.1954, wherein he settled the first item of suit first schedule property in favour of his three sons absolutely and the elder brother of the first defendant by name Srinivasa Iyer by Utilising his own funds has started a business in Paddy as early as on 1939 at Melacheval and the first defendant has also joined in his business and subsequently out of their own exertion, they started partnership business and by Utilising the surplus income, the first defendant has purchased some of the suit properties and 4th & 5th items of the first schedule are the absolute properties of the 4th defendant and since the remaining suit properties are the separate properties of the first defendant, the plaintiff and the remaining defendants are not having any semblance of right over the same and therefore, the plaintiff is not entitled to get the reliefs sought for in the plaint.
16.The main contention urged on the side of the plaintiff in Original Suit No.109 of 1998 is that the suit property therein is originally belonged to the father of the first defendant viz., Veeraraghava Iyer and after his demise, the first defendant and his brothers have succeeded the same and in a suit for partition, the said property has been allotted to the share of the first defendant and therefore, it has become ancestral house of the plaintiff and defendants, and now the defendants 1 & 2 have been making arrangements to lease out the same to strangers. Under the said circumstances, the present suit has been filed for the relief of perpetual injunction.
17.On the side of the contesting defendants, it has been stated that the suit property is the absolute property of the first defendant and in which the plaintiff and remaining defendants are not having any semblance of right and as per Will dated 03.02.1992 executed by the first defendant, the same belongs to the 4th defendant viz., wife of the first defendant and therefore, the suit is liable to be dismissed.
18.The following points have become emerged in Appeal Suit No.176 of 2001:
"a)Whether all the suit properties are the joint family properties?
b)Whether the suit items 4 & 5 of the first schedule are the absolute properties of the 4th defendant?
c)Whether the appellant/plaintiff is entitled to get the relief as prayed for?"
19.Likewise, the following point has arisen in Appeal Suit No.282 of 2008;
"Whether the appellant/plaintiff is entitled to get the relief of perpetual injunction as prayed for in the plaint?"
20.Before perpending the rival submissions made by either counsel, the Court has to look into the petitions filed on the side of the appellant/plaintiff in Appeal Suit No.176 of 2001. On the side of the appellant/plaintiff, two petitions have been filed in M.P.Nos.1 of 2008 & 1 of 2009 under Order 41 Rule 27 of the Code of Civil Procedure so as to admit all the documents mentioned therein as additional evidence. Along with M.P.No.1 of 2008, registration copy of Partnership deed dated 06.04.1944 and sale deeds dated 29.03.1992 & 16.08.1992 have been filed. Likewise, in M.P.No.1 of 2009 registration copies of four sale deeds dated 16.07.1971 have been filed.
21.The learned Senior counsel appearing for the appellant/plaintiff in Appeal Suit No.176 of 2001 has laconically contended that the documents filed along with M.P.No.1 of 2008 & M.P.No.1 of 2009 are very much essential for the purpose of deciding the real dispute that exists betwixt the parties and therefore, M.P.Nos.1 of 2008 & 1 of 2009 may be allowed.
22.Per contra, the learned senior counsel appearing for the respondents has also equally contended that the documents mentioned along with M.P.Nos.1 of 2008 & 1 of 2009 have been filed belatedly and for filing the same, no sufficient reasons have been given on the side of the appellant/plaintiff and therefore, M.P.Nos.1 of 2008 & 1 of 2009 cannot be allowed.
23.As stated earlier, M.P.Nos.1 of 2008 & 1 of 2009 have been filed under Order 41 rule 27 of the Code of Civil Procedure, 1908 and the same reads as follows;
"Production of additional evidence in Appellate Court.- (1)The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if,
(a)the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa)the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at that time when the decree appealed against was passed, or
(b)the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2)Wherever additional evidence is allowed to be produced by an Appellate Court the Court shall record the reason for its admission."
24.From the close reading of the provision of Order 41 Rule 27 of the said Code, the Court can easily learn to the effect that the parties to an appeal shall not be entitled to produce additional evidence (oral or documentary) in the appellate Court. But, however additional evidence can be adduced under the following circumstances;
a)If the trial Court has refused to admit additional evidence.
b)If the party seeking to additional evidence establishes that notwithstanding their best effort and due diligence, such additional evidence has not been produced before the trial Court.
c)If the appellate Court requires any document to be produced or any witness to be examined for the purpose of pronouncing judgment.
Further the Court can easily discern that if the appellate Court decides to admit additional evidence, it has to record reason for its admission.
25.In 1964(1) MLJ 13 Supreme Court (K.Venkataramiah Vs. A.Seetharama Reddy and others) the Honourable Apex Court has clinchingly held that the provision for recording reasons mentioned in Order 41 Rule 27 of the Code of Civil Procedure, 1908 is only directory and not mandatory even though the word "shall" is used in the said Rule. The omission to record reasons for allowing additional evidence does not vitiate such admission.
26.In 2000(2) MLJ 461 (S.N.Hasan Abubucker Vs. Kottikulam Street Mohideen Pallivasal Therkku Mohideen Pallivasan, Nirvagi Mutheru Committee through its Secretary, M.S.Buhari and another), this Court has held that the ultimate aim of the Judicial proceeding is to render justice and technicalities including Order 41 Rule 27 of the Code of Civil Procedure are only handmaids of justice and it is not possible for the judicial mind to shut out or close its eyes when an important piece of evidence is brought to its notice.
27.From the decisions referred to supra, it is made clear to the Court that the word "shall" mentioned in the Order 41 Rule 27(2) of the Code of Civil Procedure is nothing but directory and not mandatory, and even if sufficient reasons have not been assigned for admission of additional evidence, such admission would not be vitiated. Further it is made clear to the Court that the Courts shall not dwell upon technicalities mentioned in law. The ultimate goal of the Court is to render justice and under the said circumstances, the Court can admit important and also necessary piece of evidence even in appellate stage. Therefore, the argument advanced by the learned senior counsel appearing for the appellant in Appeal Suit No.176 of 2001 is really having subsisting force. Under the said circumstances, the petitions filed in M.P.Nos.1 of 2008 & 1 of 2009 are allowed and the documents filed thereon are marked as Exs.A26 to A32.
28.As stated earlier, on the side of the appellant/plaintiff in Appeal Suit No.176 of 2001, it has been contended that erstwhile Hindu joint family consisted of K.S.Veeraraghava Iyer and his three sons has possessed of sufficient nucleus and by Utilising surplus income of the Hindu joint family, the first defendant and his elder brother have started partnership business and thereby, the first defendant has earned all the properties mentioned in the first and second schedules and therefore, all the suit properties are having the character of joint family properties and under the said circumstances, the Court has to look into the Correct legal position involved in these appeals.
29.In 1998 (2) Law Weekly 259 (Muniappa Naicker Vs. Balakrishna Naicker) this Court has held that nucleus must have left sufficient surplus income to enable acquisition. If a member proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up claim that it is his personal property to establish that the said property has been acquired without any assistance from joint family property.
30.In 1998 (2) Law Weekly 175 (Kasthuri Naidu, died 6 others Vs. Padmanabhan and others) this Court has held that failure to prove existence of nucleus, no question of acquiring property by a joint family will arise. Presumption as to acquisition by a coparcener being his self acquisition.
31.In 1996 (1) MLJ 320 (Kandasami and another Vs. Adi Narayanan and others) this Court has held that a person claiming that a certain property belongs to the joint family, must prove initially that the joint family had sufficient nucleus out of which such later acquisition could have been made. Further it has been held that the properties acquired or standing in the name of female member of a family, she need not prove how she acquired it.
32.In AIR 1954 Supreme Court 379 (Srinivas Krishnarao Kango Vs. Narayan Devji Kango and others) the Honourable Apex Court has held that proving of existence of a joint family does not lead to the presumption that the 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 having possessed some joint family properties 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.
33.In 1989 (2) Law Weekly 227 (Ponuswamy Vs. Meenakshi Ammal and others) the Division Bench of this Court has held that the properties standing in the name of the father holding joint family property, in the absence of independent income from separate property. Presumption arises as to nucleus and as to acquisition being joint family property.
34.From the conjoint reading of the decisions referred to supra, the following aspects can be culled out easily:
a)The joint family nucleus must have left sufficient surplus income so as to enable acquisition.
b)Initially burden lies upon a member who alledges that a particular property is a joint family property to the extent that the alleged joint family nucleus must have left sufficient surplus income and by Utilising the same, the property in question could have been acquired.
c)If the initial burden as referred to above is proved then the burden shifts to the member of the joint family setting up claim that it is his personal property and the same has been acquired without any assistance from the joint family property.
d)Failure to prove existence of nucleus, the inevitable presumption is that the acquisition in question is nothing but self acquisition.
e)Mere fact of existence of a joint family does not lead to presumption that a property held by any of its member is joint family property unless the above aspect are proved.
f)If the property acquired is standing in the name of the female member of a joint family, she need not prove as to how she acquired it.
35.With the aforesaid legal backdrops, the Court has to look into the rival submissions made by the learned senior counsel appearing on either side.
36.The learned senior counsel appearing for the appellant/plaintiff found in Appeal Suit No.176 of 2001 has contended with great vehemence that erstwhile Hindu joint family consisted of K.S.Veeraraghava Iyer and his three sons has had possessed of more than 10 acres of nanja lands in Tirunelveli District and by Utilising its surplus income, the first defendant and his elder brother viz., K.V.Srinivasan Iyer have started their partnership business and both of them have derived enormous income and the first item of the suit first schedule is ancestral property and the first defendant by Utilising his share of income has purchased the remaining items of suit properties in his name and also in the name of his wife who has been arrayed as 4th defendant in the suit and further the first defendant and others have jointly executed some sale deeds in favour of third parties, wherein also the character of joint family properties has been mentioned and the trial Court without considering the contention urged on the side of the appellant/plaintiff has erroneously dismissed the suit and therefore, the judgment and decree passed by the trial Court in Original Suit No.91 of 1992 are liable to be set aside.
37.In order to repel the argument advanced by the learned counsel appearing for the appellant/ plaintiff, in Appeal Suit No.176 of 2001, the learned senior counsel appearing for the respondents/ defendants has also equally contended that the first item of the suit first schedule has been settled by the father of the first defendant by name K.S.Veeraraghava Iyer in favour of his three sons under the Will dated 22.06.1954, wherein he has clearly set out his self-acquisition as well as ancestral properties and further the ancestral properties are not income yielding and the same have been enjoyed by the tenants and even during his life time, he sold the major portion of the ancestral properties and therefore, it is false to contend that the erstwhile Hindu joint family has possessed of sufficient nucleus and further the elder brother of the first defendant by name K.S.Srinivasa Iyer has obtained enormous wealth from his wife's side and by Utilising the same, he started a business initially and subsequently the first defendant has been inducted as one of its partners and both of them have conducted lucrative Rice and Paddy business as well as Transport business and by Utilising the surplus income, the first defendant has had acquired the remaining properties mentioned in the plaint and further the 4th and 5th items of the first schedule are the separate properties of the 4th defendant and therefore, the plaintiff is not entitled to get the relief sought for in the plaint.
38.On the side of the contesting defendants, Ex.B3 has been filed. Ex.B3 is nothing but a Will dated 22.06.1954 alleged to have been executed by K.S.Veeraraghava Iyer, wherein it has been clearly stated about his advocate practice, his outstandings separate acquisition and further it is stated that the suit first item of first schedule is his separate property and the same has been settled in favour of his 3 sons including the first defendant. The first defendant has filed Original Suit No.163 of 1988 for the relief of partition against his two brothers, wherein a compromise has been effected and in pursuance of the same, he purchased shares of his brothers in respect of the suit first item of the first schedule and thus the suit first item of the first schedule has become separate property of the first defendant.
39.At this juncture, a nice legal question arises as to whether a property obtained by a father through testamentary succession can be treated as a joint family property along with his son?.
40.This question has been answered in different ways by different High Courts and with the result there has been a considerable diversity of judicial opinion and the Honourable Apex Court In AIR 1953 Supreme Court 495 (C.N.Arunachala Mudaliar Vs. A.Muruganatha Mudaliar and another) has held that in view of settled law that a mithakshara father has absolute right of disposition over his self-acquired property to which in exception can be taken by his male descendants, it is not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rank as ancestral property in the hands of the donee in which his sons would acquire co-ordinate interest.
41.In the instant case, as stated in many places, as per Ex.B3 the deceased K.S.Veeraraghava Iyer has settled the first item of the first schedule in favour of his three sons including the first defendant herein. Therefore, the first defendant has acquired 1/3rd share under Ex.B3. In view of the irresistible conclusion arrived at by the Honourable Apex Court in the decision referred to supra, the Court can easily come to a conclusion that 1/3rd share of the first defendant obtained under Ex.B3 is his separate property and subsequently he acquired the remaining shares by way of compromise, entered into in Original Suit No.163 of 1988. Therefore, the first time of the first schedule is the separate and absolute property of the first defendant and in which nobody is having any semblance of right.
42.The crux of the case of the plaintiff is that the first defendant and his brother K.V.Srinivasan Iyer have started their business only by utilising surplus income of the erstwhile joint family. As marshalled earlier, the initial burden lies upon the plaintiff to prove that the erstwhile joint family has had possessed of sufficient nucleus and also yielded surplus income. At this juncture, it would be more useful to look into the evidence adduced by the plaintiff in Original Suit No.91 of 1992 and the plaintiff has been examined as PW1. He has categorically admitted in his evidence during the course of cross-examination that his father viz., first defendant told him that the senior paternal uncle by name Srinivasan Iyer with the aidence of the fund given by his father-in-law started Rice Mill business and further he admitted that he has not known personally about the capital of Rice Mill business and further he admitted that only by Utilising the partnership business, the first defendant and his brothers have purchased so many properties. Further he has stated in his evidence that he has not possessed of any document to show that the partnership business have been started by Utilising surplus income of ancestral properties. In fact the aforesaid evidence given by PW1 has clearly accinged the entire contentions urged on the side of the appellant/plaintiff in Appeal Suit No.176 of 2001. To put it in short, the aforesaid admission made by PW1 has given a clear death-knell to his entire case.
43.The admitted case of both the parties is that both the first defendant and his elder brother by name K.V.Srinivasa Iyer have started Rice and Paddy business and also transport business under the garb of partnership. Of-course it is true that the first defendant is also one of the members of the Hindu joint family during the relevant period and both the first defendant and his elder brother have started and conducted their partnership business. At this stage, a nice legal question arises as to whether a business conducted by a member of a joint family can be treated as joint family business?.
44. In paragraph No.234 (4) of the Principles of Hindu Law (Mulla), it is stated like thus;
"Presumption as to business carried on by a member: There is no presumption that a business carried on by a member of a joint family, is joint business. Nor is there any presumption that a business carried on by such a member in partnership with a stranger is a joint family business. Therefore no presumption that a business standing in the name of or started by even a manager is joint family business, but if the joint family funds are utilished in opening of a new branch then the new branch will be recorded as part of the old business".
45.Therefore, it is quite clear that there is no presumption with regard to a business carried on by a member of a joint family to the extent that it is a joint family business.
46.Since the partnership business run by the first defendant and his elder brother viz., K.V.Srinivasan Iyer cannot be treated as a joint family business and since plaintiff (PW1) himself has clearly admitted in his evidence that he has had no personal knowledge about the surplus income of the nucleus of the erstwhile joint family consisted of K.S.Veeraraghava Iyer and his three sons, it is pellucid that partnership business run by the first defendant and his elder brother viz., K.V.Srinivasan Iyer is their separate business and in which nobody is having any semblance of right.
47.The specific contention of the plaintiff is that the remaining suit properties have been acquired through the income derived from the business run by the first defendant and therefore, it can also be clothed as joint family properties. It has already been pointed out that the business run by the first defendant and his elder brother K.V.Srinivasan Iyer is their separate business. The plaintiff himself has clearly admitted that by Utilising the surplus income of the business run by his father and his senior paternal uncle, the remaining suit properties have been acquired. Since the business itself is a separate business, it is needless to say that the acquisition of the remaining suit properties are also self-acquisition.
48.The learned senior counsel appearing for the appellant/plaintiff in Appeal Suit No.176 of 2001 has also relied upon the decision reported in 2006 (4) Law Weekly 798 (Mrs.Bagirathi & 5 others Vs. S.Manivann & another) wherein the Division Bench of this court has held that where ancestral property has been divided between several joint owners, there can be no doubt that if any of them have male issue at the time of partition, the share which falls to him will continue to be ancestral property in his hands as regards his male issue, for, their rights had already attached upon it and the partition only cuts off the claims of the dividing members.
49.It is an axiomatic principle of law that if ancestral properties have been divided between coparcener, the share of a coparcener is also ancestral property in his hands along with his male issues and at the same time, if a son has succeeded the separate estate of his father, the same would not be characterized as joint family property along with his son.
50.In the instant case, as noted down in many places, the plaintiff has virtually failed to prove that the erstwhile Hindu joint family consisted of K.S.Veeraraghava Iyer and three sons has possessed of sufficient nucleus and also surplus income. The plaintiff has also failed to establish that the partnership business run by the first defendant and his elder brother viz., K.S.Srinivasan Iyer is the joint family business. Since the above aspects have not at all been established, the Court cannot come to a conclusion that all the suit properties are the joint family properties.
51.The learned senior counsel appearing for the appellant/plaintiff in Appeal Suit No.176 of 2001 has also accentuated the Court to look into the additional documents filed on the side of the appellant/plaintiff. Some of the additional documents are the sale deeds executed by the first defendant and his elder brother K.V.Srinivasan Iyer, wherein also it has been clearly stated that all the properties mentioned therein have been obtained by their father by way of sale. It is an admitted fact that the deceased K.S.Veeraraghava Iyer has had lucrative advocate practice and he minted money like anything and therefore, it is quite clear that he has had independent income so as to purchase so many properties. Under the said circumstances, the Court cannot come to a conclusion that the additional documents have lent its support to the case of the appellant/plaintiff.
52.Now the Court has to look into the properties standing in the name of the fourth defendant viz., wife of the first defendant. It is an admitted fact that some items of the suit properties are standing in the name of the 4th defendant who is none other than the wife of the first defendant. The specific contention of the appellant/plaintiff is that the first defendant by Utilising joint family funds has purchased the properties in the name of 4th defendant. But the settled legal position is that the properties acquired, standing in the name of a female member of a Hindu Joint family cannot be treated as joint family properties and the female member need not prove as to how she acquired it. Therefore, it is quite clear that the properties standing in the name of the 4th defendant, wife of the first defendant are her separate properties. Therefore, in the light of the elucidation of both the factual and legal aspects, this Court can unflinchingly come to a conclusion that except the properties standing in the name of the 4th defendant, the remaining suit properties are the self-acquired properties of the first defendant.
53.Further the first defendant during his life time has executed two Wills dated 03.02.1992 & 28.06.1999 which have been marked as Ex.B67 & B68. Under Exs.B67 & B68 the first defendant in a sound disposing state of mind has settled his properties in favour of one of his sons by name K.V.Sridharan (3rd defendant) and also in favour of his wife. Under the said circumstances, it is needless to say that the plaintiff can easily be non- suited.
54.The trial Court after considering all the rival contentions raised on either side and after having elaborate discussion has rightly dismissed the suit filed in Original Suit No.91 of 1992 and under the said circumstances, the argument advanced by the learned senior counsel appearing for the appellant/plaintiff in Appeal Suit No.176 of 2001 is not having attractive force and whereas the argument advanced by the learned senior counsel appearing for the respondents/defendants is really having subsisting force and altogether Appeal Suit No.176 of 2001 is liable to be dismissed.
55.Now the Court has to analyse the relief sought for in Original Suit No.109 of 1998 (Appeal Suit No.282 of 2002), wherein the plaintiff has sought for the relief of perpetual injunction to the effect that the defendants 2 to 4 should not let out the suit property mentioned therein to third parties. The suit property is the absolute property of the first defendant, father of the plaintiff and defendants 2 & 3, and husband of the 4th defendant.
56.It has already been held in Appeal Suit No.176 of 2001 that the suit property is the separate property of the deceased first defendant and he subsequently settled the same in favour of the 4th defendant under Ex.B68. Therefore, on the date of filing of the suit, the plaintiff is not entitled to get the relief sought for and further virtually on the date of filing of the suit, he has no locus standi to institute the same.
57.At this juncture, it would be more useful to look into the well- known Latin maxim "Ubi jus ibi remedium". It means that where there is a legal right, there is a legal remedy.
58.In the instant case as pointed out earlier, on the date of filing of the suit itself, the plaintiff has had no semblance of right over the suit property and therefore, the plaintiff is not entitled to file the present suit for the relief of perpetual injunction against the contesting defendants.
59.The trial Court, after considering all the contentions raised on either side, has rightly dismissed the suit. In view of the discussion made earlier, it is very clear that the judgment and decree passed by the trial Court in Original Suit No.109 of 1998 are also perfectly correct and the same need not be interfered with and altogether Appeal Suit No.282 of 2008 is also liable to be dismissed.
60.In fine, these appeal suits are dismissed without costs. The common judgment passed in Original Suit No.91 of 1992 & 109 of 1998 by the Principal Subordinate Court, Tirunelveli is confirmed. Consequently connected M.P.No.2 of 2008 is also dismissed.
gcg The documents filed along with M.P.Nos.1 of 2008 & 1 of 2009 are marked as follows;
Ex.A26 06.04.1944 Partnership deed Ex.A27 29.03.1962 Sale deed Ex.A28 16.08.1962 Sale deed Ex.A29 16.07.1971 Certified copy of sale deed Ex.A30 16.07.1971 Certified copy of sale deed Ex.A31 16.07.1971 Certified copy of sale deed Ex.A32 16.07.1971 Certified copy of sale deed To 1.The Principal Subordinate Judge, Tirunelveli.