Madras High Court
Muniappa Naciker vs Balakrishna Naicker on 11 March, 1998
Equivalent citations: (1998)2MLJ388
JUDGMENT S.S. Subramani, J.
1. Defendant in O.S. No. 476 of 1974, on the file of District Munsifs Court, Kallakkurichi, is the appellant.
2. Plaintiff and defendant are brothers, and they are the sons of Thulasi Naicker. It is the case of the plaintiff that he acquired the plaint schedule properties under Exx.A.1 to A.25, between the period 1943 to 1967 and the defendant is interfering with his possession. It is also the plaintiff's case that all the properties are his self-acquisitions, and his father died only about ten years prior to the institution of the suit and he was managing the family. It is his further case that he is doing business even from his young age, in paddy, groundnut, gingelly and jaggery, and out of the income earned from the business, he was in a position to acquire all these items. None of these items are family properties, nor were they purchased from out of the family income, nor was he the manager at that time. The family had only two items of properties, i.e., Ac. 1-43 cents of punja land and Ac.0.74 cents of nanja lands. The income from the joint family properties was hardly sufficient for the maintenance of the family. There was no surplus income. Plaintiff did not purchase the suit properties out of the ancestral nucleus. After the death of the father, defendant is interfering with the plaintiffs possession of the suit properties. Hence the suit was filed. In fact, a notice (copy marked as Ex.A-44) was issued by the plaintiff himself asking the defendant not to interfere with his possession, and Ex.A.45 reply was sent by the defendant, contending that the plaint properties are the family properties, and also claiming one half share in those items.
3. In the written statement filed by the appellant (defendant), it was contended that all the plaint items are family acquisitions. Even though they were taken in the name of the plaintiff, that will not make them self-acquisitions of the plaintiff. The plaintiff was managing the affairs of the family. The father was incapable of managing the affairs, and plaintiff being the elder member of the family, and being the elder son of the father, was really controlling the affairs of the family. The business that he was carrying on, was family business, and all of them have contributed for acquisition of the properties. It is also said that when dispute arose, there was a panchayat, and the plaintiff himself has agreed to give half share to the defendant. He denied the alleged trespass or attempt to trespass.
4. The trial court marked Exx.A-1 to A-47 on the side of plaintiff. Plaintiff examined himself as P.W.1 and another witness as P.W.2. Exx.B-1 to B-6 were marked on the side of the defendant. D.Ws.1 to 3 were examined on the side of the defendant. D.W.3 is the defendant himself. D.Ws.1 and 2 are close relations of the parties.
5. The trial court held that the properties are family properties and declared the plaintiff's right over one half share. The trial court was of the view that the case of the plaintiff that he was earning even before marriage cannot be accepted. It was found that normally an unmarried and undivided member will not be allowed to do business separately or to purchase properties separately. It was also found by the trial court that it is not unusual in a Hindu joint family to put the different members of the family in different professions for the interest of the family and to have purchased properties for the family in the name of the elder son of the family but of the income of all the members of the family and also out of the joint family nucleus. The trial court was also of the view that it was for the plaintiff to prove that all the properties are self-acquisitions and that he had income of his own. It further held that in the circumstances of the case, it is hardly believable that P.W.1 (plaintiff) was carrying on business of his own excluding the other members of the family. It also held that 'Thulasi Naicker and the defendant could have been incapable of purchasing any property for 24 years continuously and the plaintiff alone could not have been a capable person in the family to have purchased the suit properties under Exs.A-1 to A-25'. The trial court was of the view that under the circumstances of the case, it has to be held that the suit properties are joint family properties.
6. It also believed the oral evidence of the defendant.
7. Aggrieved by the judgment, plaintiff preferred A.S. No. 275 of 1976, on the file of Subordinate Judge's Court, Cuddalore. The lower appellate court reconsidered the entire evidence and finally came to the conclusion that the decision of the trial court is wrong and, therefore, requires interference, The lower appellate court held that the burden is entirely on the defendant to prove that there was sufficient nucleus to purchase the other properties, and evidence in that regard is lacking. It also took into consideration that plaintiff was only a junior member in that family and his father was alive when most of the properties were acquired. Therefore, there cannot be any question of presumption of acquisition on behalf of the family. It also found that the father was never prevented from managing the affairs of the family and he himself was dealing the properties which stood in his name, or which belonged to the family. It also came to the conclusion that the properties covered by Ex.A-1, i.e., more than 4 acres of land, was purchased by plaintiff with funds provided by the mother and, therefore, under no circumstance the same could be treated as family property. It also came to the conclusion that there was no appreciable income from the family properties, and the income, from the family properties would not have been sufficient even to meet the day-to-day maintenance of the family. It further held that income could be derived from the family properties only if there was rain. Apart from plaintiff and defendant, deceased Thulasi Naicker had to maintain his wife, and conduct marriage of his three daughters. So, there would not have been any surplus income from out of the family properties which could have been made use of for acquiring the properties under Exs.A-1 to A-25. The appeal was, therefore, allowed, and consequently a decree as prayed for by respondent/plaintiff was granted.
8. It is against the said judgment, defendant has preferred this second appeal.
9. At the time of admission of the second appeal, the following substantial questions of law were raised for consideration;
(1) Whether the lower appellate court was right in reversing the judgment of the trial court on the ground that the burden of proof had been wrongly cast on the plaintiff? and (2) Whether the judgment of the lower appellate court is right in law because of its omission to consider material evidence in this case?
10. Both these questions can be considered together.
11. In 'Dr. Paras Diwan - Hindu Law', First Edn. -1995, at page 209, the learned Authors have discussed about the concept of separate property thus:
It appears that when the concept of communal property prevailed among Hindu communities, the question of self-acquisitions could not have arisen. When the communal system got transformed into the typical Hindu joint family, the members of the family, including the coparcener, were allowed to have self-acquisitions.
But, it seems, in the beginning he was given limited right over them. He was allowed to retain it during his lifetime. In the second stage of development, he was allowed double share. In the last stage of development he was allowed to retain it as his separate property having full rights over it. But basic postulates of all such acquisitions was that they were acquired without any detriment to the joint family property.
A text of Manu is explicit on the matter:
What one member acquires by his exertions without using paternal wealth, with acquisition of his own effort, he shall not share except by his own will.
Yajnavalkya laid down:
Whatever is acquired by the coparcener himself, without detriment to the father's estate, as a present from a friend, or a gift at nuptials, does not appertain to the co-heirs. Nor shall he who recovers hereditary property, which has been taken away, give it up to coparceners; nor what has been gained by science.
Vijaneshwara's comment on this text are:
Consequently what is obtained from a friend as a return of an obligation conferred at the charge of the patrimony; what is received at marriage concluded in the Asura form or the like; what is recovered of the hereditary estate at the expenditure of the ancestral wealth; all must be shared with the whole of the brethren and the father. He need not give up to the co-heirs what has been gained by him through science, by reading the scripture or by expounding their meaning.
The crux of the matter is that only those acquisitions would be self-acquisitions which are acquired "without detriment" to the joint family property. As a corollary, all acquisitions made by a coparcener with the aid of the joint family property or funds are part of the joint family property. In the modern Hindu Law, this is the well established proposition. But a difficulty often arises as to when we would say that acquisitions are without any detriment to the joint family property, and when we can say that they are to the detriment to the property.
[Italics supplied] Finally, at page 213 of the same book, the learned Authors have summarised the concept regarding 'separate property' as follows:
In our submission the following propositions would help us in the understanding of the law :
(a) The property acquired with self-exertion or labour will be separate property only when it is acquired without any detriment to the joint family property, that is, without any aid of joint family funds.
(b) Where in the acquisition of property by a member, there is a detriment to the joint family property i.e., in its acquisition joint family property has been used, or there is joint family nucleus, the property so acquired will be separate property.
(c) If the detriment to the joint family property is insignificant or the joint family property nucleus is nominal, then the property so acquired will be separate property.
(d) Whether or not there is detriment to the joint family property would depend upon the facts and circumstances of each case.
According to me, the above passage by the learned Authors is the summary of the law declared by the Privy Council the Supreme Court and also our High Court.
12. In 'Mayne's Hindu Law & Usage' - 14th Edition (1996), at page 651, the learned Author has said thus:
The burden of proving that any particular property is joint family property, is in the first instance upon the person who claims it as coparcenary property. Where the possession of a nucleus of joint family property is either admitted or proved, an acquisition made by a member of the family is presumed to be joint family property, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. Until and unless adequate nucleus is shown; the onus is not on the acquirer to prove that the property standing in his name was purchased from joint family funds. And it is only after the possession of an adequate nucleus is shown, the onus shifts on to the person who claims the property as self-acquisition, affirmatively to make out that the property was acquired without any aid from the family estate.
13. In 'N.R. Raghavachariar's Hindu Law - Principles and Precedents' - Eighth Edition (1987), the learned Author has considered this question elaborately on the basis of various decided cases. The learned Author says at page 225 that if a member of a family takes aid of any portion of the joint or ancestral property, in acquiring fresh properties, however small that aid may be, the property so acquired assumes that character of joint family property and cannot be claimed by the acquirer as his self-acquisition. The extent of his contribution or that of the family fund is immaterial, and if any help has been taken from the family property, it is enough to make the acquired property, the property of the joint family. The learned Author further says that before the property in the possession of any one coparcener can be presumed to be joint family property, it is necessary to establish the existence of a nucleus of joint property. Both sufficiency of the joint family nucleus and its availability to the particular member who has acquired the property in dispute should be established, and the nucleus must have left sufficient surplus income to enable the acquisition. It is only when an adequate nucleus is shown that the burden shifts on to the member in whose name the property stands or is purchased to show that he had acquired the property without any aid from the family assets. In the absence of proof of the existence of such a nucleus it could not be said that a property standing in the name of a member was not his self-acquisition and that he held it in trust for the family. Nucleus has to be established as a matter of fact and its existence cannot normally be resumed or assumed on probabilities; the burden is very heavy on the person alleging its existence and mere lapse of time will not relieve him from discharging his obligation.
14. I have already extracted the law declared and laid down in various textbooks. Let me now consider as to what is laid down in various case-laws about this concept.
15. In Appalaswami v. Suryanarayanamurti and Ors. I.L.R. 1948 Mad. 440 : (1947)2 M.L.J. 138. A.I.R. 1947 RC. 189, their Lordships have said thus:
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 any one asserting that any item of property is 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.
16. In Srinivas Krishnarao Kongo v. Marayan Devji Kongo and Ors. . Their Lordships have taken into consideration the decision cited supra. In that case, the family had nucleus. It was in the nature of a building and land around the same. The question that came for consideration was, whether that was sufficient nucleus. While considering the same, Their Lordships held thus : (Headnote 'a') Proof of the evidence 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. A.I.R. 1947 Cal. 189 (192), Relied on.
Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of the fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case.
Where the finding of the courts is that the income from the ancestral lands was not sufficient even for the maintenance of the members and the houses in dispute are substantial, burden is on the plaintiff who alleges the houses to have been acquired out of joint family funds to establish it.
Held that even if the contention that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, that burden had been discharged.
Likewise it was held that since ancestral Watan lands were intact, and were available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family, whether it were held that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result was the same. A.I.R. 1947 C. 189, Relied on....
17. In Rukhmabai v. Laxminarayan . it was held thus:
....there is no presumption that any property, whether moveable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he 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 the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.
18. In Achuthan Nair v. Chinnammu Ammal and Ors. . it has held 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 Marumakkathayam 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 strong presumption that it is a tarwad property and the presumption holds good unless and until it is rebutted by acceptable evidence.
18. A reading of the above decisions makes it clear that if a coparcener is in management of the family properties, a presumption may arise that an acquisition made by him is for the benefit of the family. But if he is not in management, or the family properties are not in his possession, there is no scope for such a presumption.
19. In Mudigowda v. Ramachandra . it was held thus:
There is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. - A.I.R. 1947 RC. 189, Relied on.
20. In Baikuntha Nath Pramanik v. Sashi Bhusan Pramanik (1972)2 S.C.W.R. 406. it was held thus:
When a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the name of the persons who were in the management of the family properties are family acquisitions.
21. In Ratanchand Darbarilal v. Commissioner of Income-tax, M.R . the question that came for consideration was, whether some members of an undivided family by themselves can form a partnership. The High Court of Madhya Pradesh held that without a partition or partial partition, some members alone cannot form a partnership firm. Setting aside the finding, in paragraph 6 of the judgment (at page 1575) Their Lordships said thus:
...We do not think this view is correct in law. It is a well settled proposition applicable to Hindu Law that members of the joint family and even co-partners can, without disturbing the status of the joint family or the coparcenary, acquire separate property or run independent business for themselves.
On the basis of the law declared in the various Texts as well as case-laws, the following propositions emerge : (1) A Hindu Family is presumed to be joint. But at the same time, there is no presumption that the joint family is possessed of family properties. (2) The manager, if he is in possession of family properties and is in management thereof and acquires any other property, the law presumes that it is joint family property. (3) Even in such cases, presumption will arise only if it is shown that the family property had left surplus income out of which other properties could be acquired. If the nature and relative value of the property are such that there is no income, any fresh acquisition cannot be treated as a family property. It is well within the powers of the members of the family that they can acquire separate properties and can have their own avocations in life. There is no law which says that only if a member gets married or comes of a particular age, he can do business or earn income. There is also no presumption that any property acquired by a member is a family property.
22. On the above propositions, let us see whether the finding of the lower appellate court calls for any interference.
23. The trial court, in paragraph 7 of the judgment, has held that the acquisition under Ex.A-1 was made when the plaintiff was aged 20. He was at that time unmarried. The trial court has further held thus:
.... Normally an unmarried and undivided member of a joint family could not be allowed by the family to do business in separate and to purchase properties in his name in separate for himself at his age of 20 years....
I do not think the said observation of the trial court is based on any legal principle. The trial court further went on to hold thus:
...It is riot unusual in a Hindu joint family to put the different members of the family in different professions for the interest of the family and to have purchased properties for the family in the name of the elder son of the family out of the incomes of all the members of the family and also out of the joint family nucleus.
The above observation is also not on the basis of any legal principle, or based on any text. The said observation is patently incorrect. The trial court has further held that the burden is on the plaintiff to prove that he has acquired the properties by his own efforts and by his own income. The apparent tenor of the document has to be considered for the purpose of deciding the nature of acquisition, unless there are circumstances to show that the apparent tenor is not correct. In this case, the brief facts are that the plaintiff was only a coparcener and not a managing member. Most of the acquisitions were made by him at a time when his father was alive. Even though the appellant has a case that his father was not managing the affairs, absolutely no evidence has been let in to substantiate the same. In fact, prior to Ex.A-1, the properties were acquired and dealt with by the father, is clear. If it is their case that it was out of the family funds the plaintiff purchased the properties, defendant will have to establish as to what prevented the father from acquiring the property as was being done in the case of Exs.A-46 and A-47.
24. The only items of property that belonged to the family are Ac. 1-43 cents of punja land and Ac.0-74 cents of nanja lands. Nobody has a case that any detriment has caused to those items, because of the acquisitions made under Exs.A-1 to A-25. Those Items are kept intact. It is also in evidence that apart from plaintiff and defendant, deceased Thulasi Naicker had three daughters, and he has also his wife to be maintained. The daughters were to be given in marriage. It has also come out in evidence that he had no other source of income. The lower appellate court has also considered the income that could have been earned from out of the family properties. It is said that any income could be there from out of those items only if there were rains. Even the defendant is not in a position to say as to what was the income that was derived from out of the family properties, and whether there was any surplus income from out of which the properties could be acquired.
25. Ex. A-1 property is having an area of more than 4 acres. That was acquired in the year 1943. Even though the plaintiff has a case that it was acquired out of his own income, and from the business which he was carrying on, the lower appellate court has held that even the defendant's witness has proved that Ex. A-1 property cannot be a family property, the reason being that the consideration for purchasing Ex.A-1 was advanced by plaintiff's father. That item itself is four acres and the subsequent acquisitions were all made thereafter. Even the extent of the two items which admittedly belong to the joint family is only less than 2 acres. Defendant has to prove whether the family had surplus income at the time of each acquisition made by the plaintiff. All the acquisitions covered under Exs. A-1 to A-25 were made during a span of 25 years, and most of the Items have been purchased for paltry sums of Rs. 25, Rs. 75, Rs. 300, Rs. 100, Rs. 170, etc.
26. Ex.A-1 property is for a consideration of Rs. 900. If that property could be purchased by the plaintiff for Rs. 900, naturally, the subsequent acquisitions which are mostly for very paltry sums, can also be presumed to have been made by the plaintiff. At the same time, defendant has not adduced any evidence to show how far the family properties were affected by these acquisitions. Unless there is a detriment to the family properly, there cannot be any question of treating the properties covered under Ex.A-1 to A-25, as family properties. It is on the basis of principle of trust, the subsequently acquired properties are said to have been treated as family properties. If there is no scope for applying that principle, the apparent tenor of the documents will have to stand.
27. Even the oral evidence of witnesses examined on the side of the defendant was considered by the lower appellate court to come to the conclusion that it also supports only the case of the plaintiff. For all these years, plaintiff has been paying tax to these properties. It has also been found by the lower court that during the relevant time, plaintiff was doing his own business. On going by these circumstances, I feel that the judgment of the lower appellate court is correct, and it has applied the correct proposition of law in casting the burden of proof, and also in arriving at the correct conclusion that all the properties are the self-acquisitions of the plaintiff.
28. Learned Counsel for the appellant was not in a position to satisfy this Court and any material piece of evidence was not taken into consideration by the lower appellate court. Both the questions of law are, therefore, found against the appellant.
29. In the result, the second appeal is dismissed, however, without any order as to costs.