Madras High Court
R. Anandavalli vs Alagammal And Ors. on 3 July, 1992
Equivalent citations: (1993)1MLJ15
JUDGMENT Bellie, J.
1. The appellant-plaintiff R. Anandavalli is one of the daughters of Raju Konar, the first defendant being his wife, defendants 2 to 6 sons and defendants 7 and 8 daughters.
2. The case of the plaintiffs is that her father Raju Konar has himself earned money and acquired the properties and the bank deposits described in the suit schedule from his meat shop. Raju Konar died intestate on 12.3.1971. Each of the plaintiff and defendants 1 to 8 are entitled to equal share in the properties. While so the defendants producing a false release deed alleged to have been executed by the plaintiff withdrew the deposit amount from the bank on 13.12.1974. The plaintiff has claimed 1/9 share in the suit properties.
3. Defendants 1 to 6 defended the case by filing written statement. They denied that the suit properties are the self-acquired properties of Raju Konar and the plaintiff is entitled to 1/9 share. They contended that the plaintiff received a sum of Rs. 8,000 in cash and executed a release deed dated 13.12.1974 relinquishing her right in the suit properties. It is further contended that she is not entitled to any share in the amount deposited in the bank. Raju Konar inherited the meat shop business from his father Subbaiya Konar and the properties were acquired from out of the income of the meat shop. The said meat shop left by Subbaiya Konar was being run by Raju Konar and also defendants 2 to 4 and out of the income earned from that joint family business Raju Konar purchased the suit properties and some amounts were deposited in banks. The plaintiff was entitled to only l/54th share in the suit properties but even that share she relinquished by executing the said release deed. Thus the plaintiff is not entitled to any share in the suit properties. It is also contended that Raju Konar did not leave any gold jewels described in the schedule.
4. Defendants 7 and 8 remained ex pane. Defendants 9 and 10 banks filed written statements stating that since the plaintiff executed a release deed they paid the bank deposits to the second defendant with the consent of others.
5. The trial court on consideration of the evidence held that the suit properties were not self-acquired properties of Raju Konar as pleaded by the plaintiff and they are joint family properties and therefore the plaintiff was entitled to 1/54 share as contended by the contesting defendants. It further held that the plaintiff failed to prove that Raju Konar left any gold jewels or promissory note or any movables described in the schedule. On these findings the trial Court decreed the suit in favour of the plaintiff for l/54th share in the suit properties excepting the alleged gold jewels and promissory note-items (a), (b) and (c) in Part III and movables in Part IV schedule properties. Aggrieved the plaintiff has filed this appeal.
6. The main point that was argued by Mr. K.S. Ahamed, learned Counsel for the appellant-plaintiff is that the finding of the trial court that the suit properties are joint family properties is erroneous.
7. As regards the issue whether the plaintiff, as contended by the defendants, executed Ex.B-18 release deed, the finding of the trial court is perfectly right and there is absolutely no reason to interfere with that. The release deed itself has not been filed and only a certified copy has been produced. None of the defendants has gone into the witness box to speak with regard to the alleged release deed whether the plaintiff and her husband have testified as P. Ws. 1 and 2 that the alleged release deed is false and fabricated one. This is sufficient to hold that the alleged release deed is a false one.
8. The only main point that has to be considered is whether the finding of the trial court that the suit properties are not the self-acquired properties of Raju Konar as pleaded by the plaintiff is not correct. It is not in dispute that the suit properties (Items I and II immovables) were purchased by Raju Konar. No document has been filed, but according to the plaintiff they are with the second defendant and that is quite possible because the second defendant is the first son of Raju Konar and he is the eldest of all the sons and daughters. The question is whether the said properties were purchased out of the income earned by Raju Konar himself or out of the income of any joint family business as contended by the defendants.
9. As stated above the properties were purchased by Raju Konar. If it is contended that they were purchased by him out of the income of the joint family business and therefore they are joint family properties that has to be proved. The defendants case appears to be that Raju Konar's father Subbaiya Konar was having a meat shop business and that business was inherited by Raju Konar and the suit properties were purchased out of the income from that business. In this regard there is no clear averments in the written statement. Even without stating that Subbaiya Konar had a meat shop it is merely stated, as if it is admitted that there was a meat shop, that "Subbaiya Konar the father of Raju Konar was running the mutton shop?" It is not stated as to where the meat shop was.
10. May be Subbaiya Konar had a meat shop but from that alone it cannot be stated that the very meat shop was inherited by Raju Konar. It is quite possible that Subbaiya Konar had a meet shop in one place and Raju Konar had a meat shop in another place. In this connection Mr. K.S. Ahamed, learned Counsel for the appellant-plaintiff relied on a Division Bench judgment of this Court in R. Selvaraj v. R. Radhakrishna Pillai alias R.R. Krishna Pillai and Anr. (1976)1 M.L.J. 105, wherein it is held that, There is no presumption that a business conducted by a member of the joint family is a joint family business. On the other hand the presumption is to the contrary. The person alleging such a state of affairs should prove the same by acceptable and clinching evidence. The fact that the business started by one of the members was of the same nature as the business which was carried on by his ancestors will not by itself be a sufficient discharge of the burden of proof on the part of the person alleging that such business is ancestral business.
11. Whereas the plaintiff who has examined herself as P.W.2 and also her husband as P.W.1 have asserted that no meat shop was inherited by Raju Konar none of the defendants have got into the witness box to repudiate it. On the other hand in Exs.B-11 and B-13 Claim Forms sent by the defendants in connection with the amount deposited by Raju Konar in the banks they have clearly stated that the amount was the self-acquired property of Raju Konar. No reason whatsoever has been given as to why they have said so if really the amount was not self-acquired property of Raju Konar. In view of this admission of the defendants it does not lie in their mouth now to say that it was joint family property. Admission is the best form of evidence and the plaintiff can certainly rely on this.
12. The Supreme Court in Narayan Bhagwant Rao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors. , has stated that, An admission is the best evidence that an opposing party can rely upon, and, although it is not conclusive, is often decisive of the matter unless it can be successfully withdrawn or proved to be erroneous.
In another judgment in Avadh Kishore Das v. Ram Gopal and Ors. , the Supreme Court has held that, Evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong but they do raise an estoppel and shift the burden of proof on to the person making them or his representative-in-interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted.
In the present case, no attempt whatsoever has been made by the defendants to show that the said admission was wrong. When the defendants themselves have not given any explanation, the Court cannot on some presumption think that the admission may not be true.
13. Varadachariar, J. in Panyam Thirumalappa v. Alasyam Ramappa and Ors. A.I.R. 1938 Mad. 133, observed that, A Judge when asked to consider the weight 6f an admission by a party cannot ignore it on some guess of his own without plea or explanation by the party making the admission.
Therefore the said admissions in Exs.B-11 and B-13 must be given the full weight.
14. Further in a meat shop there will not be any stock in trade. Every day the stock of meat got in the morning has to be disposed of latest by the evening. Even if it is true that Raju Konar had his meat business in the same place where his father was doing business it cannot be stated that Raju Konar inherited from his father his meat business. As stated above none of the defendants has chosen to get into the witness box to speak in support of their case; instead they have examined D.W.1 one Samraj Moses who has nothing to do with the family and he alone has stated that Raju Konar inherited the meat shop business of his father Subbaiya Konar. He too has not stated in the chief examination in which place the meat shop of Subbaiya Konar was and only in the cross examination he has stated that "the meat shop was in the place belonging to a minor in G.S.T. Road." He has then stated that he does not know what asset Subbaiya Konar left behind. This witness is a retired man who was working as an Accountant in a school. I do not think that it would be proper to rely on this evidence of a sole witness who was not connected with the family in any manner without any corroborative evidence of any other witness. This is more so in the face of the abovesaid admission by the defendants in Exs.B-11 and Ex.B-13. All these would lead to the only legitimate conclusion that the suit properties are the self-acquired properties of Raju Konar as pleaded by the plaintiff. Therefore the plaintiff will be entitled to l/9th share on the date of suit. It is now said that one of the children of Raju Konar died. In that case the plaintiff will be entitled to l/8th share. Accordingly the judgment of the trial court is modified. The appeal is thus allowed. Considering the relationship of the parties and other circumstances of the case there will be no order as to costs. The respondents will pay the court fees due to the Government.