Madras High Court
Maniammal Alias Rajambal vs Mangalakshmy And Ors. on 10 July, 1985
JUDGMENT Mohan, J.
1. The plaintiff is the appellant before us.
2. The appellant filed O.S.No. 107 of 1973 on the file of the Principal Subordinate Judge of Pondicherry (i) for a declaration of title to the suit properties; (ii) for recovery of possession of Schedule C-1 and C-2 properties; and (3) for a permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff of Schedules B-1 to B-4,
3. The plaint averments, inter alia, are as under:- Rangasamy Gounder, the husband of the plaintiff, was the original owner of the suit properties mentioned in the plaint schedule. He acquired the same in his personal name for his own benefit, with his private and personal fund. He had independent means of his own, as he was trading in bricks, which provided him with considerable personal income. Under the Hindu Law, as it prevailed at Pondicherry, there was no joint family between father and sons during the lifetime of the father and the sons do not get any right by birth. The father of Rangasamy Gounder, i.e. Subbaraya Gounder, did not have sufficient means for his livelihood. Hence Rangasamy Gounder maintained his father out of his own personal income. Added to that, he also maintained his brother, Govindasamy Gounder, who did not have sufficient means. Rangasamy Gounder died on 23.10.1951, leaving the plaintiff and three daughters. As per the Hindu Law obtaining in Pondicherry, the plaintiff inherited the entire properties left by her husband as his sole heir. The Hindu Succession Act of 1956 came into force in Pondicherry on 1.10.1963. By the operation of the provisions of the said Act, the plaintiff became the owner of the suit properties. The plaintiff continued to live in her husband's house at Muthirapalayam, where Govindasamy Gounder also lived with his family. On 2.12.1972 when the plaintiff started to cultivate the lands mentioned in Schedule C-1 for raising sugarcane crop, Govindasamy Gounder threatened and prevented her from carrying out the agricultural operation. In January, 1973 Govindasamy Gounder trespassed into the lands mentioned in Schedule C-1. He cultivated sugarcane in the absence of the plaintiff and without her knowledge. Govindasamy Gounder, after dispossessing the plaintiff, continued to retain the possession with him. He died in April, 1973 leaving behind defendants 1 to 6. The fourth defendant, son of late Govindasamy Gounder, interfered with the possession of the plaintiff of the lands mentioned in Schedule B-l to B-4. Govindasamy Gounder took advantage of the ignorance of the plaintiff and had misused the confidence placed in him by the plaintiff. He also fabricated documents with a view to deprive her of her right in the suit properties. Neither Govindasamy Gounder nor defendants had any right to the suit properties. Hence, the suit.
4. Pending suit a receiver was appointed for all the suit properties. The plaintiff prayed for a direction that the receiver might hand over the properties to her. After the trial was over, she filed a petition for amendment of the plaint for an alternative plea, claiming the benefits of Section 14 of the Hindu Succession Act. That was ordered.
5. A written statement was filed by the fourth defendant to the following effects:- It is not correct to state that Rangasamy Goundar was the exclusive owner of the suit properties. It is equally not correct to state that there was no joint family and the plaintiff alone is entitled to the suit properties. The averment that Subbaraya Gounder, father of Rangasamy Gounder, had no sufficient means and the further averment that Govindasamy Goundar and Subbaraya Goundar were maintained by Rangasamy Goundar are wrong. Subbaraya had extensive landed properties both in Pondicherry and in Tamil Nadu. He had 11 acres of dry land in Puthurai Village in Tindivanam taluk, yielding considerable income. The said property included both ancestral properties as well as self-acquisition. Subbaraya Goundar, by sale deeds dated 6.3.1933, 6.9.1941 and 22.7.1943 made purchases from out of the money earned by his own efforts and the income from the ancestral properties. Besides he also purchased properties at Pondicherry by sale deed dated 27.4.1940. Therefore, Subbaraya Goundar was a man of sufficient means, owning number of immovable properties. There was a joint Hindu family consisting of Subbaraya Goundar and his two sons, viz., Rangasamy and Govindasamy. As such, there was a co-parcenary. Therefore, there is no question of one co-parcener maintaining another.
6. Govindasamy Goundar was a man of substantial means. He also had a brick kiln, which earned him sufficient income. When Subbaraya Goundar died in 1951 possessed of properties, a Communaute opened between Rangasamy and Govindasamy as the sons of Subbaraya. Rangasamy died undivided. Therefore, Govindasamy as the sole surviving member of the Communaute became entitled to all the properties. The right of the plaintiff was only to a claim of maintenance. Govindasamy exercised his above right by selling the properties of Subbaraya under a sale deed dated 16.6.1956.
7. Rangasamy did not acquire properties for his own benefit. Even assuming those purchases were made by Rangasamy, because of the existence of a Communaute during the period 1941 and 1951, these acquisitions would amount to Communaute properties. As a matter of fact, there were several joint dealings by Rangasamy as well as Govindasamy. After the demise of Rangasamy, Govindasamy alone enjoyed these properties. Patta stood in his name and he was paying taxes. The plaintiff never paid any tax for the suit properties. As a matter of fact, she had acquiesced in the title of Govindasamy. It was Govindasamy who was maintaining the entire family of Rangasamy. He got married one of the daughters of Rangasamy on 8.9.1952. Later in 1956 and 1959 it was he who celebrated the marriage of two other daughters. The allegation that he fabricated the documents is stoutly denied. Not even a suit notice was sent during the lifetime of Govindasamy or even thereafter. It is false to state that Govindasamy caused disturbance to the possession and enjoyment of the suit properties by the plaintiff. In any event, Govindasamy had preferred his title by his long, open and continuous possession. The suit has not been properly valued for the purpose of court-fees.
8. Consequent to the amendment a written statement was filed disputing the claim of the plaintiff to maintenance as well as the benefit of Section 14(1) of the Hindu Succession Act.
9. On these pleadings, the following issues were set down for trial:
1. Whether on the death of Subbaraya, father of deceased Rangasamy and Govindasamy a 'communaute de Droit Hindu' opened between the said sons?
2. Whether the deceased Rangasamy was a member of the said 'Communaute1 de Droit Hindu' and died as an undivided member of the same in the year 1951?
3. Whether the suit properties were self-acquired properties of the deceased Rangasamy as alleged by the plaintiff or whether they belong to the Communaute?
4. Whether the deceased Govindasamy paid the considerations for the purchase of suit properties in the name of deceased Rangasamy?
5. Whether the deceased Govindasamy had been enjoying the suit properties by keeping possession of the said properties?
6. Whether the deceased Govindasamy Goundar performed the marriage of the daughters of the plaintiff expending heavy sums as alleged by the defendants.?
7. Whether the plaintiff was driven out of the family by the deceased Govindasamy as alleged by her?
8. Whether the plaintiff was in possession of the suit properties after the death of her husband?
9. Whether the suit valuation of properties and court fee paid is correct?
10. To what relief, if any, is the plaintiff entitled?
Additional Issues:
1. In the alternative, whether plaintiff was entitled to maintenance right with possession of suit properties? If so whether that maintenance right had transformed into full ownership by virtue of Section 14 of Hindu Succession Act?
2. Whether the court-fee paid for the three reliefs is correct?
10. The learned Subordinate Judge, on a consideration of the oral and documentary evidence, answered issue No. 9 and additional issue No. 2, in favour of defendants and directed the plaintiff to pay the Court-fees on Rs. 1,00,000 under Section 7(v) of the Court-fees Act of 1870, less the amount paid by the plaintiff already. On issues 1 and 2 he held that the plea of the plaintiff that Rangasamy Goundar was the exclusive owner of the suit property was not proved, and that on the contrary the defendants have succeeded in proving that there existed a co-propriete familiale with Subbaraya, Rangasamy and Govindasamy and a communaute with Rangasamy and Govindasamy. By survivorship Govindasamy Goundar succeeded to the entire properties. Therefore, the existence of the joint family is proved.
11. As regards issues 3 and 4 it was held that the properties purchased by Rangasamy in his name under Exs.A-6 to A-9 belonged to the joint family and it was Govindasamy who repaid the debts partly or in full for his brother Rangasamy. Under additional issue No. 1 it was held that succession was only by survivorship. The plaintiff not being the heir of Rangasamy could never succeed to the suit properties. The extension of the Hindu Succession Act did not confer any right on her. She had only a right of maintenance as a widow of Rangasamy.
12. Issue No. 5 was answered in favour of defendants, while issues 6 and 7 were considered not relevant to the case and issue No. 8 answered against the plaintiff. In the result, under issue No. 10 the suit was dismissed with costs, subject however with a direction that the plaintiff should pay the additional court-fees. The receiver was discharged and directed to hand over possession of the suit properties to defendants.
13. Mr. N.C. Raghavachari, learned Counsel for the appellant, submits that there is absolutely no pleading that Subbaraya did any brick business. Therefore, it is not open to the court below to rely on the oral evidence let in that regard.
14. There was no ancestral nucleus because the purchases by Subbaraya are covered by three sale deeds, Exs.B-34, B-35 and B-36. They are in respect of small extents of 70 cents, 1 acre 28 cents and 1 acre 63 cents and they are dry lands. As seen from Ex.A-31, the income from all these three lands is only Rs. 30 per acre per annum. P.W.7 speaks about the same. To get over this difficulty of possession of small extents of lands, a certificate from the Karnam, Ex.B-37 had been relied on by the court below. That certificate should not have been, accepted because the Karnam was never examined. Besides Ex.B-37 was marked only subject to proof and admissibility. There being no proper proof of this Exs.B-37, reliance on the same is totally unjustified.
15. The trial Court has come to the conclusion that there was a joint family because of the joint dealings. That finding is again incorrect. The first document that is relied on in this behalf is Ex.A-13 dated 26.2.1949, wherein the father Subbaraya and the two sons Rangasamy and Govindasamy mortgaged the property. In paragraph 17 the father declares that items 1 to 11 covered by that document as his property while items 12 to 16 are the properties of Rangasamy. On the strength of these documents and on the basis of the oral evidence of P.Ws.1 and 12, which has not been properly appreciated, the conclusion arrived at that there was a joint family is wrong.
16. The position of law as will be applicable in Pondicherry concerning joint family, assumed by the court below, is incorrect. Assuming that there was a joint family, it would follow, if there was one such joint family, the surviving coparcener, Govindasamy, the predecessor-in-title of the respondents/defendants, ought to have been in possession. However, the trial court itself finds that the appellant was in possession though not adverse.
17. The law applied by the court below culled out from Sanner's Hindu Law as it is applied in Pondicherry State, is wrong. There is no such law which prevents one of the members of the joint family from making independent acquisitions.
18. First of all, the law as stated by the trial court would apply only if Rangasamy was living under the power of the father. That apart, in this case there is abundant evidence that Rangasamy had independent resources. The purchases by Rangasamy were made under four documents, Exs.A-6, A-7, A-8 and A-9. Under Ex.A-6 the consideration recited is Rs. 2,850, of which Rs. 1,850 was paid to the vendor in cash. For the remaining amount of Rs. 1000 the unpaid vendor's lien is mentioned. Under Ex.A-7 the consideration recited Rs. 15,000. An advance of Rs. 1500 was paid and before the Notaire a sum of Rs. 3500 was paid. The balance of Rs. 10,000 was covered by Ex.B-7 promissory note. Even this Ex.B-7 promissory note was practically discharged in full, excepting a sum of Rs. 1500. Under Ex.A-8 also the position was similar in that a sum of Rs. 1,500 was paid as advance; Rs. 4000 was covered by the extension deed under Ex.A-10 while Rs. 7500 was borrowed from a third party. Under Ex.A-9 the entire sale consideration was paid before the Notaire. If these purchases have been made from the independent resources of Rangasamy it is impossible to conclude that the money flowed from out of the joint family nucleus. Under Ex.B-11, the account book maintained by D.W.2, it is clearly seen from the entry, Ex.A-43, that the borrowing was by Rangasamy. This is practically admitted by D.W.2. In Ex.B-15 also there are similar entries. This coupled with the oral evidence of P.Ws. 1 ,2 and 11, without a specific plea that Subbaraya did any; brick business, fully establishes the independent resources. In order to buttress the finding that the recital in the promissory note, Ex.B-9, is relied on along with the oral evidence of D.W.2. If there was no brick business, on the basis of the promissory note it cannot be contended that Subbaraya did any brick business.
19. Rangasamy's ownership is acknowledged by a solemn declaration given by Govindasamy himself. Ex.A-5 is a document executed by Govindasamy and the plaintiff, wherein the declaration given by Govindasamy that Rangasamy was the owner of the property purchased by sale deed, Ex.A-9, is a strong piece of evidence, Likewise, under Ex.A-1 there is a declaration by Govindasamy that the appellant/ plaintiff is an 'usufruitier'. Therefore, these two documents clearly show that Govindasamy himself treated Rangasamy as the owner and the consequential right flows in favour of the appellant/plaintiff. Rangasamy himself is the owner and Rajambal is "usufruitier". Citing Debi Prasad v. Tribeni Devi it is argued that in case of ancient transactions it is impossible to let in detailed evidence. By passage of time such evidence is wiped out. Therefore, it cannot be held that every bit of payment made under Exs.A-6 to A-9 as that of Rangasamy has to be established.
20. In Harrap's Shorter French and English Dictionary the word "Usufruitier" has been described as "Tenant for life". If really there was a 'communaute' of interest as is claimed by the other side, there ought to have been a declaration that the property belongs to communaute propriete.
21. Again in Ex.B-45 mortgage dated 19th March, 1949, there is a categoric declaration that items 12 to 16 belong to Rangasamy. These statements could not have been made unless Rangasamy was the owner of the property. In contradistinction it could be seen that Govindasamy deals with the properties of Subbaraya alone, for instance, Ex.A-4 (same as Ex.B-57) sale deed dated 16th June, 1956. Ex.A-30 is a mortgage by Govindasamy alone dated 12th May, 1969 in respect of his own property purchased from Anthonisamy. No doubt there has been joint borrowing both by Subbaraya and Rangasamy under Ex.B-9. Equally there have been joint borrowings by Rangasamy and Govindasamy under Exs.B-41, B-7 and B-44. Therefore, it cannot be concluded that there was a 'communaute'.
22. As regards possession, there is abundant evidence in this case that the appellant/plaintiff was in possession from 1963 till 2.12.1972. That she was enjoying the sugarcane lands is evident from Ex.A-16. Exs.A-32, A-33-A, A-33-B, A-33-C as well as Ex.A-34-A are the documents to show that Rajambal has been dealing with the property without any objection whatsoever. In Ex.A-32 Govindasamy stands as surety. The oral evidence of P.W. 1 is also to the effect that she has been in enjoyment of the property. If that is so, in so far as the appellant/plaintiff has the right to possession, that right will get enlarged into an absolute estate under Section 14(1) of the Hindu Succession Act. It has been so laid clown in Mangal Singh v. Rattni .
23. As against this not a single kist receipt is produced on behalf of Govindasamy though the written statement avers that kist was paid by Govindasamy. If really Rangasamy's widow was not entitled to possession, Govindasamy would not have failed to obtain possession even as early as 1951. Where, therefore the kist receipts issued in favour of Rangasamy were taken possession of by Govindasamy, when Rajambal was driven out of the house, the court should draw an adverse inference against him, notwithstanding the onus of proof as laid down in Ganeshmal Naggaji v. Central Board of Excise and Customs .
24. Lastly it is argued with regard to the position of law that Sanner's opinion is wrong. The correct position is stated only by Langlard. The Mithakshara law as applied to Pondicherry could not be very different than what was obtained in the other parts of India. In Vasudev v. The Secretary of State for India (1888) I.L.R. 11 Mad. 157 at 161 and 162 it was held that when a Nambudri family is settled in Malabar, still the old Mithakshara law is applicable. Likewise, in Parbati Kumari Debi v. Jagadis Chunder Dhabal (1902) L.R.29 I.A. 82 : 4 Born. L.R. 365 : I.L.R. (1902) 29 Cal. 433 it was held that if a Hindu family migrates, the position is the same. One other case that is relied on, on this aspect, is Kalwa Devadattaw v. Union of India . For all these reasons, it is submitted that the dismissal of the suit be reversed and a decree be passed.
25. Mr. S. Govind Swaminathan, learned Counsel for the respondents, first of all submits that there was a joint family consisting of Subbaraya, the father, and Rangasamy and Govindasamy, the two sons, cannot be denied. Paragraph 5 of the plaint taken together with the oral evidence of P.Ws. 1, 10 and D.W. 1 clearly establishes that all these lived in the same house. D.W. 1 also speaks to this fact. He was the person closely connected with the family because be figured as a witness in many documents like Exs.A-6 to A-9 and B-6.
26. It is impossible for the other side to contend that Subbaraya did not own sufficient properties. Apart from Exs.B-34 to B-36, in Ex.B-37 the 10-1 accounts Subbaraya's properties are shown. Ex.A-31 mentions the survey number found in Ex.B-37. This is also spoken to by P.W.7. The total extent owned by Subbaraya, as seen from this document comes to more than 12 acres. This is admitted by P.W. 1 herself. In addition to this, 8-89 acres were owned by Subbaraya as seen from F.x.A-13. Therefore, the total extent owned by Subbaraya is 20 acres and odd. This documentary evidence is corroborated by D.W. 1, P.W. 1 also admits that several lands were owned by Subbaraya. .Further, there is evidence of P.W.10, D.W.l and D.W.5. Therefore, the averment in the plaint that Rangasamy was maintaining Subbaraya is without any basis.
27. In this case it is also established that brick kiln was only a family business and not an independent business of Rangasamy. This is clear from Ex.B-9 as well as Ex.B-38 to B-40, which are contracts obtained by Govindasamy from the Public Works Department for supply of bricks, at a time when Rangasamy and Subbaraya were alive. Ex.B-56 shows that Govindasamy supplied bricks to the municipality. P.W. 10 admits in a way that it was a family business, that both Rangasamy and his father-in-law did the brick business and after the demise of Rangasamy, Govindasamy continued the business.
28. No doubt the properties covered by Exs.A-7, A-7, A-8 and A-9 stand in the name of Rangasamy. But if really there was a joint family (Co-propriete) it is not for the respondents/defendants to prove that the joint family had sufficient income by way of surplus so as to purchase a property. It is for the plaintiff to prove that Rangasamy had independent resources to purchase the properties. Such evidence in relation to independent resources and that the payments were made by Rangasamy is lacking in this case. Therefore, the application of the law that the property, even though purchased by Rangasamy would belong to the joint family is correct. Further, the properties were purchased when Subbaraya was alive. Sanner's Hindu Law as it is applied in Pondicherry State, at pages '.80 and 181 clearly shows the acquisition by son also belongs to the family. If therefore these was a joint family during the lifetime of Subbaraya, on his death it become 'communaute' between Rangasamy and Govindasamy. In so for as there was no partition between the two, that common family continued. By the law of survivorship, Govindasamy, the sole surviving member, become entitled to the properties. There is also evidence in this case that as the heir of the family Govindasamy celebrated the marriage of the plaintiff's daughter as seen from Exs.B-1, B-2 and B-3.
29. The properties were treated as common properties is also clear because of the joint dealings and borrowings. Ex.B-9 evidences the borrowal of Subbaraya and Rangasamy and Ex.B-10 is the endorsement. Likewise, there are several joint borrowings by Govindasami and Rangasami. Merely because in Ex.A-43 alone Rangasamy's name is found it cannot be said that Rangasamy had any independent brick business. In Ex.B-7 again there is a joint borrowing. Under Ex.B-45 and Ex.A-13 all the three borrowed, while in Ex.B-23 again Ramasamy and Govindasamy' borrowed. P.W. 1 when confronted with these had to admit that she could not deny the joint borrowing. Thus the conclusion is inescapable that the properties belong to the joint family.
30. It is not correct to state that the plaintiff was ever in possession of the properties. No kist receipt on behalf of the plaintiff is filed. The plaintiff does not know about the change of patta in the name of Govindasamy. Patta was changed as early as in 1955. But she never protested. Ex.R-58 dated 26.9.1955 is the patta for all the lands. If really the plaintiff was cultivating the lands, why she is unable to produce the kist receipts, requires to be considered. Though she would claim now that she was thrown out of the house, there was no plea to that effect nor was any evidence let in. P.W. 1 says in her evidence that she v/ent out of the house fearing assault. If really she had paid the kist she could have taken at least copies or extracts of these public records to prove her possession.
31. All the documents in relation to possession of sugarcane lands, are of the year 1973. Ex.A-30 shows that she was in possession only from 1965 and 1967. Therefore, it is not established that on the date when Hindu Succession Act came into force, viz., 1.10.1963, she was in possession. Ex.A-32 gives the details of loan disbursed by the Co-operative Society. Therein Govindasami also joins as surety. Therefore, it is not correct to state that by reason of her possession, or entitlement to possession, it became enlarged into an absolute possession. It is somewhat strange that no suit notice was ever issued prior to the filing of the suit. It is for the plaintiff to establish her case by positive evidence. She cannot pick up any loopholes in the defendants' case and claim rebuttal as laid down in Jagdish Narain v. Ahmed Khan (1946) 2 M.L.J. 98 : 59 L.W. 268 : A.I.R. 1946 P.C. 59; Kandasamy Udayar v. Karuppudayar (1969) 2 M.L.J. 222; and P.Saraswathi v. Lakshmi .
32. Finally it is contended that Exs.A-5 and A-l no doubt state that Rangasamy is the owner of certain items. However, it specifically mentions Govindasamy's 'communen-beins" and therefore that must be given due weight. In which event it cannot be contended that Govindasamy had acknowledged either the ownership of Rangasarny or Rajambal. Thus it is submitted that no exception could be taken to the findings of the Court below:
33. In view of the above submissions the following points arise for our determination:
(1) Whether the suit properties were acquired during the regime de la co-propriete familiale?
(2) Whether the suit properties are the self-acquisitions of Rangasamy?
(3) Whether the plaintiff's right, if any, in the suit properties got enlarged by virtue of Section 14 of the Hindu Succession Act?
34. The following genealogical tree will establish clearly the relationship between the parties:
Subbaraya Gounder (Died on 27.7.1951) | ______________________________________ | | Rangasamy Gounder Govindasamy Gounder (Died on 23.10.1951) (Died in April 1973) Wife: Rajambal (Plaintiff) Wife: Mangalakshmi | (1st defendant) | | ____________________________ | | | | ________________________________ Alamelu Kanakambal Vridh- | | | | | ambal Sarojini Rani Narayana- Rajes- Amasuya (D.2) (D.3) swarny wari (D.6) (D.4) (D.5) It will also be seen from the above genealogical table that Subbaraya died on 27th July, 1951. The death certificate also evidences the same. Shortly within three months Rangasamy also died. Having regard to the above, the question would be what was the law prevelent at the time when Subbaraya was alive.
35. In paragraph III of the plaint it is stated that under Hindu law as it prevails at Pondicherry there is no joint family between father and sons during the lifetime of the father and the sons do not get any right by birth. In support of this statement made in the plaint, Mr. N.C. Raghavachari, learned Counsel for the appellant, relied on the following passage occurring in Vasudevan v. The Secretary of State for India (1888) I.L.R. 11 Mad. 157 at 161 and 162:
The view, therefore, that when Nambudris, settled in Malabar they carried their personal law with them, though they changed it in some respects after their settlement on the West Coast, is supported not only by the foregoing facts, but also by the fact that gotrams of Nambudri Brahmans are said to be the same as those of Brahmans on the East Coast, indicating thereby common descent from the same original male ancestors. It was observed by the Privy Council in Rutchepatty v. Rajunder (1837-41) 2 M.I.A. 132 that when a class of Hindus migrate from one place to another and retain their ancient religion, the presumption is, unless the contrary is shown, that they carried their personal law with them to the new settlement.
36. In Parabati Kumari Debi v. Jagadis Chunder Dhabal I.L.R. (1902) 29 Calcutta 433 : 4 Bom. L.R. 365 the head note reads:
If Hindu families migrate from one part of the country to another, the presumption is that they carry with them the laws and customs as to succession prevailing in the province from which they came. When a family migrated from the North Western Provinces, where the Mitakshara law prevailed, and settled in the Jungle Mehals of Midnapore:
Held, the presumption is that it continued to be governed by the Mitakshara Law.
37. As far as Pondicherry is concerned, the law appears to be that during the lifetime of the father, if the father and sons live together that joint living was known as 'Regime de la co-propriete familiale', After the death of the father, if there is no partition between the sons and if they continued to live jointly that was known as 'Communaute'. The law as obtainable in Pondicherry is stated by Lang lard at page 412 of his book Lecons De Driot Hindu.1 The characteristic feature of Hindu family, which remained undivided, is that there exists unity in residence and joint interest. Therefore, the joint family system was not applicable to Pondicherry. A learned Judge of this Court in a ruling reported in Ramalingam v. Manikka Gounder has observed as follows:
It may be observed by way of preface, that wherever Mitakshara law was being administered in this country according to its ancient texts, succession to ancestral or co-parcenary property was by survivorship and not by inheritance. The rule was general in its application, and brooked no exception. It applied, for instance, whether the deceased died leaving undivided brothers or died leaving undivided sons. The rule of survivorship operates in both the cases. The particular reason why, even in the latter kind of case, the rule governed the devolution was because the sons had a right by birth in the ancestral property even during their .father's lifetime. In the territory of Pondicherry however, the legal position was quite different for a pretty long time. The textual Hindu Law had yielded to a local variation, wrought, it would seem, by custom and usage. The position which obtained in Pondicherry was summed up by the French writer Sanner in his wellknown work on Hindu Law in the following terms:
Today, by virtue of a more correct interpretation of custom, the theory of coparcenary system between father and son irrespective of the ancestral properties is abandoned in our establishment of Coramandal Coast. It is to the head of the family only, in reality, in the juridical sense of the word the assets, deriving from the ancestor belong and he alone has capacity to exercise, in principle, the right to dispose, which is "conferred on him by owner's right.
9. That this was the law which was being administered by Courts in Pondicherry is found from a recent application of it in a decision of the Superior Court of Appeal, Pondicherry in Appeal No. 326 of 1964. That Court, consisting of a three member bench of which Maharajan, J. was the President echoed Sanner with the following passage:
Under Hindu Law, as it is in force in Pondicherry, Hindu sons do not acquire any interest in the father's property by birth whether the property be the self-acquired property of the father or his ancestral property.
The same principle has also been accepted by Sethuraman, J. in Pandurangam v. Sarangapanl . At page 320 the learned Judge observed:
5. It is, in this context, necessary to find out the legal position applicable to the Hindus in the State of Pondicherry. Under the Hindu Law in force in that territory, Hindu sons did not acquire any interest in the father's property by birth, whether the property be the "self-acquired property of the father or his ancestral property. This proposition was enunciated by the Superior Court of Appeal, Pondicherry in A.No. 326 of 1964, and has been referred to in Ramalingam v. Manicka Goundar . In fact the French writer Sannar in his work on Hindu law summed up the position as follows:
'Today, by virtue of a more correct interpretation of custom, the theory of coparcenary system 'between father and sons in respect of the ancestral properties is abandoned in our establishment of Coramandal Coast. It is to the head of the family only, in reality, in the juridical sense of the word, the assets deriving from ancestor belong and he alone has capacity to exercise, in principle the right to dispose, which is conferred on him by owner's right.' It is this principle of law which indisputably governs the right of the parties. It is thus clear that the plaintiff's father was the absolute owner of the properties.
38. In view of this settled position we do not think that either the ratio of Vasudevan v. The Secretary of State for India (1888) I.L.R. 11 Mad. 157 at 161 or Parbati Kumari Debi v. Jagadis Chunder Dhabal (1902) 29 Cal. 433 : 4 Bom.L.R. 365 would be applicable to this case.
39. Having arrived at this legal position, the evidence now requires to be seen to find out whether there was a joint family. In paragraph V of the plaint it is stated that since the death of the plaintiff's husband Rangasamy Gounder, the plaintiff is in exclusive possession of the suit properties. She continued to live at Mutrapalayam in her husband's house, where Govindasamy Gounder was also living with his family. The plaintiff as P.W.1 admits that Subbaraya Gounder used to stay at Mutrapalayam. Again she states that in Mutrapalayam house lived Subbaraya Gounder, Rangasamy Gounder and Govindasamy Gounder, that her marriage took place more than 40 years ago in Mutrapalayam house. In cross-examination she says that during the lifetime of her father-in-law all the three persons, viz., her father-in-law, her husband and Govindasamy Gounder were all residing in the same house.
40. P.W. 12, who knows Rangasamy Gounder since his childhood, states that Rangasamy Gounder lived in the same house at Mutrapalayam before and after his marriage. Likewise Rajambal. Subbaraya Gounder and Govindasamy Gounder, though lived in the same house, they had their own portions and they lived in separate rooms. This is the evidence relied on by Mr.Govind Swaminathan, to establish that there was a joint faimly. Under Ex.A-13 dated 26.2.1949 father Subbaraya and his two sons, Rangasamy and Govindasamy, executed a mortgage in favour of Anantha Reddiar. That document states that all the three are residing at Contepeth.
41. We may now in passing refer to the oral evidence of P.W. 1 as well for the sake of completion. He states in chief-examination that the father and sons resided at Mutrapalayam only and the house belongs to Subbaraya Gounder. The oral evidence coupled with those documents clearly establishes that there was a joint family.
42. Subbaraya purchased properties under three sale deeds. Under Ex.B-34 dated 6.3.1933 he purchased 70 cents of dry land in Poonthurai village, North Arcot District. The consideration for sale is Rs. 300. The next sale deed is Ex.B-35 dated 6.9.1941 under which an extent of 1 acre 28 cents of dry land was purchased for a sum of Rs. 300. Ex.B-36 is yet another sale deed dated 22.7.1943 under which Subbaraya purchased an extent of 1 acre 63 cents. In order to show that Subbaraya owned several other properties, Ex.B-37 the Karnam's certificate regarding the properties at Poonthurai villiage is filed. First of all, we do not know how this document could be held to be admissible, in the absence of the examination of the Karnam. Therefore, one cannot make much reliance on the same. However, under Ex.A-13, to which we have just now referred, there is a statement as to the properties owned by Subbaraya. That shows that Subbaraya was a man of sufficient means and it cannot be said that he was depending on Rangasamy for his livelihood. But this fact whether Subbaraya owned properties or not, may not assume much significance in view of the succeeding discussion. In the result, we hold under issue No. 1 that the acquisitions were made by Subbaraya during the regime de la co-propriete familiale. However, how far they are independent acquisitions of Subbaraya, we proceed to consider under point No. 2. '
43. Point No. 2: As to what exactly is the law with regard to the acquisition by a son while living in a joint family, we have the following opinions:
1. Hindu Law by Langlard: - pages 138- 139 : It is now well settled among jurists and Courts that the Hindu coparcenary 'communante' opens only on the death of the father and that it exists between the father and his sons only in respect of the patrimonial or ancestral properties. The immovable properties which are not of this kind may belong exclusively either to the father or to the son and they could not form a joint coparcenary property between them on the ground that a . son can make "acquisition only for his father.
2. Hindu Law by Sanner - Page 160: How the coparcenary is formed presumption of existence. The fundamental principle which governs the formation of the Hindu coparcenary 'communaute' is based on a presumption of customary law under which in the absence of any special agreement or circumstances showing the contrary intention of the parties, the coparcenary 'communaute' opens between the legitimate male heirs in the direct lineal descendance of a father who died separated from coparcenary.
3. M.L.De. Langlard - Lessons of Hindu Law page 294 : (English translation) All personal acquisition made by a co-inheriter (coheret) alone during the undivided status should be separate from the common patrimony and kept as the private property of the purchaser. It should not be partitioned. Manu directs this expressly. Manu is quoted:
'What a brother is earning by his own effort without detriment to the paternal wealth, he need not give it because he has acquired it by his own labour.' The proof of personal nature of the properties possessed by a son is naturally on the son or his heirs. This generally results from the recital in the deed about the source of money but if there is no such recital it may also result from concurrence of facts, declaration and circumstances (cumulative effect) leaving no doubt about the personal nature of the property so purchased.
4. Mayne in Hindu Law Edition 1938 p.374, 375 : And purchases made with money borrowed on the security of the common property will belong to the joint family, the members of which will be jointly liable for the debt. But it would be otherwise if the land was made on the sole credit of the borrower or even if the loan was made out of the common fund, under a special agreement that it was to be at the sole risk of the borrower and for his sole benefit.
5. Principles of Droit Hindu by Classou Diagou Advocate A La Cour D Appeal: page 189-190: The features of self acquired or separate property: A Hindu even if he is joint may possess private or separate properties. Such properties belong to him exclusively. No other member of the Communaute even his made decendents acquire any right over these properties by birth.
6. Hindu Law by J. Saneer - page 181: Nevertheless when the dispute exists only between the universal or particular successors of the father the admission made by the latter of the rights of his son the purchaser, is binding on the other parties subject to the right granted to the heirs having right of reserve according to the circumstances to prove that such paternal declaration conceals a gift exceeding the disposable quota.
Acquisition of the sons: When the major sons live under the father's authority and are residing with him, it is not forbidden to them, according to existing usages to possess particular properties. But those properties are presumed to belong to the Chief of the family, till the contrary is proved.
In short, to fight against the presumption of family property, it is necessary to establish that the acquisition by onerous title was realised, not only with the income person to the son, but also that they were never merged with the family patrimony.
44. On the basis of the opinion of Langlard Mr. N.C. Raghavachari, learned Counsel for the appellant, contends that Sanner's opinion is wrong. We find the position as stated by Sanner has been accepted by the courts in Pondicherry as seen from the following:
Journal Judiciaire De L'Inde Francaise-Tome Sixieme Anner's 1923-1924-1925.
Justice : Civile, Page 92-92 Appellate Court, Pondicherry, Judgment dated 16.2.1924. Hindu Law - Sons -personal property - double conditions personal and separate income as against the patrimony of the family.
In Hindu Law the presumption of family property, regarding the assets in the name of the son, living under the authority of the father can be only rebutted by the double proof:- that they have been acquired with the income exclusively belonging to him and that these incomes have never been mingled with the patrimony of the family.
By the appellate Court: On merits: Adopting the grounds of the first judgment, considering that for rebutting the presumption of family property, it will be necessary to establish that the funds utilised by the son living under the authority of the father to lend money in his personal name but without connection of his father to third party, were not only product of his personal income but also they have been never mingled with the patrimony of the family. That evidence has not been brought in this case. Further the son died before his father in the house In A.S.No. 68 of 1981 on the file of the Principal District Judge of Pondicherry, the learned District Judge, David Annousamy, as he then was, held as follows:
The joint family system as it applied in the rest of the country has not been applied by the French courts here. They have found that the custom as it prevailed here consisted of a two-tier system (a) 'communaute' which exists between the male descendants of a Hindu, which communaute can come to an end by way of partition between the members; (b) 'propriete familiale' which governs the estate during the lifetime of the father. In the present case, the father is still alive. There is no 'communaute' possible there is only a 'propriete familiale.
45. Again in O.S.No. 12 of 1978, the learned Second Additional Sub Judge, Pondicherry held on two issues that the 'communaute' is formed as per Hindu law prevailing in Pondicherry where 'communaute' can be presumed during the lifetime of the father consisting of the father and his sons. Relying on Sanner, he held as follows:
Issue No. 1: As per Hindu customery law prevailing in Pondicherry prior to the introduction of Hindu Succession Act (30 of 1956) to the territory of Pondicherry in 1963 the communaute open between the male legitimate heirs in direct descendant line of a father of a family who died himself not being a member of the joint family. This presumption of joint family is given by J. Sanner in his book 'Civil Law applicable to Hindus of French Settlements in India' at page 160. The above presumption is based on tacit consent between the male heirs of deceased father of family. The above union between persons and their properties is the result of quasi contract. Since this issue relates only to law point the same is answered by the reference made by me as above to the book by J. Sanner.
Issue No. 2: According to presumption of 'communaute' as explained in issue No. 1, the above communaute opens only between male "legitimate heirs of the deceased father of family." Therefore when the said father of the family is alive there is no question of communaute between him and his sons. Similarly there is no communaute between them which is dealt with by J. Sanner in his above mentioned book 'Civil law applicable to Hindus in French Settlements in India' from pages 149 to 153. The family properties are devided in three categories. No. 1, Ancestral properties (2) Properties acquired by the father and No (3) Properties acquired by sons. The latest position of customary law regarding the ancestral properties is that the father as chief of the family is the absolute owner of the above properties. He can dispose of them by way of liberalities such as donation, will, but these liberalities are subject to his disponible quota which is fixed at 1/8th and which can be claimed by the sons at the opening" of his succession against the beneficiaries. The father is fully entitled to sell his ancestral property even for his exclusive interest. The above alienations can be attached by the sons if only they are feigned documents.
According to Hindu Customary law the sons cannot ask for partition of the ancestral properties during the lifetime of their father, "because they can institute against the father proceedings under Chapters 1 and 3 of title 11 of Code Civil which deals with matters of Depot and Sequestre (Deposit and Receiver).
Regarding the properties acquired by father through his ancestral properties or through fund deriving from his own labour the sons cannot question if the father during his lifetime has chosen to dispose of the above properties. In this matter also the liberalities can be asked to be reduced to 1/8th which constitutes the disponible quota. Here the principle of reserve applies more to the properties acquired by the father with the help of the ancestral properties regarding disponible quota of father, i.e. 18th of the properties. Section Hindu Law by Leen Sorg page 198-199.
Regarding the third category of the properties acquired by the sons, it is the settled principle of law that the properties acquired by the sons living under the father and residing with him are presumed to belong to the chief of the family unless the contrary proof is made. The properties donated to the son by other persons become personal properties of the son.
The properties acquired by the son from his own income through separate industry, commerce or business can become personal properties of the son if it is proved that his income was never gathered or integrated with the income of the family. Regarding this kind of properties J.Sanner says that the admission of the father that one of his sons has acquired some particualr property with his own income is binding on the other heirs when there is a dispute between various heirs of the father. Here also the reservatory heirs are allowed to prove that the declaration of the father is only a deed feigning the liberality which exceeds the disponible quota of the father.
(underlined supplied) It is in the light of this legal background we propose to examine whether the acquisitions made by Rangasamy could be held to be separate acquisitions. If those properties are not self acquisitions, certainly on the death of Subbaraya, the 'commu-naute' would come into existence between Rangasamy and Govindasamy and thereafter the law of survivorship will come into play. It is because of this important legal position, we have to carefully analyse each one of the purchases made by Rangasamy. The purchases by Rangasamy are made under four sale deeds, Exs.A-6, A-7, A-8 and A-9. One thing is clear. All these purchases were made during the lifetime of Subbaraya. As already noticed, Rangasamy died hardly within three months from the date of death of Subbaraya. One significant factor cannot be lost sight of. During the time when Rangasamy was purchasing property, Subbaraya himself has acquired properties as seen from Exs.B-34, B-35 and B-36, to which we have already made reference.
46. The earliest of the sale deeds in Ex.A-6 dated 10.4.1942. Rangasamy purchased about 19 cawnies of land from Sethuraman Chettiar and others under this document. The sale consideration is Rs. 2,850. A sum of Rs. 1850 is stated to have been paid to the vendors outside the sight of the Notaire. There is a recital in the sale deed to that effect. The balance of Rs. 1,000 was covered by an unpaid vendors lien. In the absence of any positive proof that this sum of Rs. 1000 was paid by the joint family it stands to reason to hold that Rangasamy alone has paid this amount. Otherwise the unpaid vendors would not have remained quiet.
47. The finding of the learned Subordinate Judge that the contents of Ex.A-6 go to prove the defendants' version that the suit properties were purchased for debts created on the same property, which were in turn discharged out of the joint family funds raised by the joint family efforts, is not borne out by any evidence.
48. Ex.A-7 is a sale deed dated 12.4.1945. The vendor is Kusalambal. An extent of 8 cawnies and 40 kuzhies came to be purchased by Rangasamy. The sale consideration is Rs. 15,000. The same is made up of:
(i) Rs. 1,500 paid outside the sight of the Notaire
(ii) Rs. 3500 paid by Rangasamy in the presence of the Notaire; and
(iii) Rs. 10,000 paid in the presence of the Notaire. This amount of Rs. 10,000 was borrowed by Rangasamy from Thangammal under Ex.B-7. Along with Rangasamy, Govindasamy also joins this borrowing.
It is necessary for us to extract the relevant portion of this promissory note:
Bond (Brevet): Before Advocate Mouttou Auguste Prosper, Notary, residing at Bahour who has affixed his signature underneath, And in the presence of witnesses who have affixed their signature underneath named and mentioned below have appeared. Mr. Rangasamy Cavoundar, Govindasamy Cavoundar, both being sons of Soupraya Cavoundar, agriculturist of the Vannia Caste residing at Mouttirapaliam in the Oulgarest Township.
The above mentioned have independently undertaken to return Rs. 10,000 and its interest being the sum of a loan taken as a lessor of land, according to the sale deed containing the past hypothecation, before the Advocate B. Bapourao, the then Notary in Oulgaret on 9th April, 1945 legitimately recognising by these present documents.
To Mrs. Tangammalle daughter of late Rathina Modeliar and widow of Mouttou Comarassamy Poulle, Vellala caste, landowner, residing at rue Diagon Moudaliar, Pondicherry, and accepts this document.' The sum of Rs. 1,000 which the latter is lending them now in cash on this day before the Notary and witnesses who have affixed their signature underneath, to be used for their needs and business.
The Debtors promise and undertake to repay the principal sum in cash to the said Tangamalle on her very first demand together with the interest of 8% per year "which will be calculated from this day onwards and paid into the hands of the creditor.
For the execution of this bond, the parties have chosen their respective residences.
The reason why we have extracted is, not only this promissory note dated 30.10.1945 mentions the earlier borrowing for the sale deed, Ex.A-7, but further mentions another lending of Rs. 1,000 on that day, viz., 30.10.1945. The learned Subordinate Judge in dealing with this would state:
Ex.A-7 is a notarial sale deed of the year 1945 by one Coussalambal and others in favour of Rangasamy for Rs. 15,000. This amount of Rs. 15,000 was made up of: (1) Rs. 1500 paid outside the sight of the Notaire; (2) Rs. 3500 paid by Rangasamy in the presence of the Notaire; (3) Rs. 10,000 paid in the presence of the Notaire; by one Thangammal who was the bailleresse de fonds (money lender). Rangasamy undertook to pay the said debt amount in two years. It should be pointed out that the said amount having not been paid, Thangammal obtained a judgment jointly against Rangasamy and Govindasamy "under Ex.B-48 and sought the hypothecated' properties to be brought in court auction under Ex.B-49 to Ex.B-55. This debt of Rangasamy, incurred for the purchase of the suit properties under Ex.A-7, was discharged by Govindasamy according to D.W. 1 by selling the properties of Subbaraya under Ex.B-57.
This is not correct because Ex.B-48 is not a judgment obtained by Thangammal against Rangasamy and Govindasamy for recovery of this sum of Rs. 10,000. Ex.B-48 is on the basis of Ex.B-7 promissory note for recovery of a sum of Rs. 10,000 covered by this promissory note. Ex.B-49 is a warrant of attachment over the properties forming the subject-matter of Ex.A-4. Govindasamy came to be impleaded as the legal heir. It was by then Rangasamy died. Ex.B-50 is the report of attachment. Ex.B-51 is the notification regarding Ex.B-48 judgment, while Ex.B-52 is the gazette notification of sale pursuant to Ex.B-49. Ex.B-53 is the order directing Govindasamy to pay. Ex.B-55 is the receipt given by Govindasamy for the cost of proceedings. Therefore, there is absolutely nothing to suggest that a sum of Rs. 10,000 was paid by Govindasamy as stated by the learned Subordinate Judge in his judgment, extracted above. On the contrary, only a sum of Rs. 1,500 remained unpaid. Whether that was paid by Govinda-samy or not is doubtful because of Ex.B-55, which evidences the payment of Rs. 190 towards costs alone. Here again we are unable to concur with the learned Subordinate Judge that the debt incurred by Rangasamy under Ex.A-7 was discharged by Govindasamy.
49. The next sale deed to be considered is Ex.A-8 dated 18.10.1945. The vendor is Vedavalli Ammal. The sale consideration is Rs. 13,000 consisting of Rs. 1,500 paid as advance, Rs. 4,000 paid under the extension deed, Ex.A-10 dated 16.8.1945. The balance of Rs. 7,500 was paid by Delaffon, who advanced the said sum. Merely because the properties were hypothecated by Rangasamy it does not mean that he ceased to be the owner or that it would become the property of the joint family. Such an inference as done by the learned Subordinate Judge viz., Ex.A-8 followed suit like Ex.A-6 and A-7 inasmuch as Rangasamy did not pay the entire sale consideration to his vendors all by himself. He raised a loan by hypothecating the property, as was done by him on earlier occasions, to buy the suit properties covered by Ex.A-8.
is not correct. In so for as Delaffon has not taken any action it follows the payment was made by Rangasamy.
50. One significant piece of evidence which has to be carefully noted is, in Ex.A-13 dated 26.2.1949 there is a declaration in paragraph 17 that the properties purchased under this document are free from any encumbrance. Therefore, obviously between these two dates, namely from the date of purchase 18.10.1945 and the date of mortgage under Ex.A-13 dated 26.2.1949 the outstanding had been cleared by Rangasamy. Why we hold that Rangasamy had cleared it is that it is acknowledged by no less a person than Subbaraya as well as Govindasamy that the properties forming serial Nos. 12 to 16 belong to Rangasamy.
51. Ex.A-9 is the sale deed dated 13.7.1951 executed by Md.Cassim in favour of Rangasamy for a sum of Rs. 25,000. That sale deed contains an unequivocal recital that the entire sale consideration of Rs. 25,000 was paid before the Notaire. On that day Ex.B-6 was executed by Rangasamy in favour of Md. Cassim. That is extracted below:
This deed of registration to Mougam-madou Cassim, S/o. Hadji Mougammadou Hanif, merchant residing at No. 57, rue des canys, Pondicherry by Rangsamy Gounder, S/o. Subbaraya Gounder residing at Moutrepaleoum in the Township of Oulgaret.
To Know: The sum of the sale due following this sale deed passed by you on this day, to my profit before Notary Philippe Diagou Moudaliar, Notary at Pondicherry is Rs. 25,000.
This sum of Rs. 25,000 received by you from me had been remitted to me by way of registered deed. I will pay you the sum without interest and I will revoke the present deed as soon as you present me with the certificates attesting that the property designated in the sale deed is not burdened by any debts and has not been sold before or donated or alienated.
On the basis of this deposit receipt, proceedings under Ex.B-4 took place. Those proceedings were dated 18.4.1963. That contains an important recital to the following effect:
To come and pay into the hands of the applicant the sum of Rs. 1,600 representing the balance of sale price due under the deposit receipt issued by the said Rangasamy Gounder on 13th July, 1951 duly registered at Pondicherry on the 27th July, 1962, R.V.No. 210 of 118 No. 1845 and to take a valid receipt for it, then declaring that in case he fails to find a satisfactory solution to be present, the applicant wilt act against him according to the law.
Ex.B-4 contains an endorsement by the Notaire that Govindasamy did not appear. Therefore, here again the conclusion that joint family funds flowed for payment to the sale consideration is not supported by any evidence. The theory that Govindasamy has paid the amounts outstanding under the sale deed is belied by the endorsement in Ex.B-49 that Govindasamy, heir of Rangasamy did not appear. Likewise the endorsement in Ex.B-4. It requires to be noted at this stage that Govindasamy was sued as heir of his late brother Rangasamy Gounder.
52. Apart from this, there is also oral evidence spoken to by P.W. 1 that after the death of Rangasamy she paid a sum of Rs. 10,000 through her son-in-law, to be paid over to Cassim. No doubt the deposit receipt was produced by defendants, but on that score it cannot be held that the amount was paid by Govindasamy. In addition to the above, there have been separate dealings by Rangasamy in that he purchases under Ex.A-12 dated 17.12.1943, six caunies of land from Adhimoola Naicker. Under Ex. A-11 he gifts to Mariamman temple one cawnie of land. This was on 30.4.1946. The remaining extents were sold away under three sale deeds, Exs.A-35, A-36, A-37 all the sale deeds being on the same day, viz., 30.4.1946.
53. It requires to be noted carefully that there has not been a single acquisition individually by Govindasamy.
54. Rangasamy had independent resources and that there were separate dealings by him would be clear by the above transaction. Besides, there is Ex.B-9 dated 8.5.1933, which refers to the brick business. Ex.B-41 dated 12.8.1939 is a promissory note executed in favour of Manicka Chettiar. These two borrowings are jointly with Subbaraya. Likewise there are joint borrowings under Ex.B-7, B-44 and B-45 along with Govindasamy. Under Exs.B-46 and B-47 Rangasamy borrows on his own. May be as and when the exigency demanded there were borrowings either individually or jointly. But that can have no bearing as regards acquisition of property. Through D.W.2 the account book, Ex.B-11, was marked. In that book the entry at page 141 is the ledger folio for Rangasamy which is marked as Ex.A-43. Likewise, there are ledger folios at page 140, Ex.B-12, for Subbaraya and Ex.B-13 is the signature in Ex.B-12. Unless there were independent dealings by Rangasamy we see no scope for a separate ledger page for him. In the ledger book for 1941-42, viz., Ex.B-14 there were joint dealings by Subbaraya and Rangasamy under Ex.B-15 at page 133 while in Ex.B-16 the signature of Rangasamy and Govindasamy are found. In Ex.B-17 at page 175 we find the signatures of Subbaraya and Rangasamy. The day book for the year 1949 was marked as Ex.B-28. Ex.B-29 at page 135 speaks of Rangasamy and Govindasamy. Ex.B-18 is the ledger for 1953. Ex.B-19 entry at page 116 of the ledger is assigned to Govindasamy and Rangasamy. It should be noted that by this time Rangasamy had died. The earlier ledgers are Exs.B-24 and B-26, wherein under Ex.B-25 page 140 and Ex.B-27 page 114 Rangasamy and Govindasamy's name are found mentioned. It is clear from this that Rangasamy had dealings.
55. We will now refer to the oral evidence. P.W. 1 says that her husband was running a brick kiln and was selling bricks. With that income and also with the income from the lands which he cultivated he purchased the suit properties. In cross-examiantion she reiterates that her husband was a cultivator by profession. He was also doing business in bricks by having brick kilns. He was doing the brick kiln business till his death....He supplied to Sawanna Mills, to Ananthu Mudaliar, Sinnata Mudaliar and through Government for Schools. It was her husband who supplied bricks till his death. It is not correct to state that Govindasamy Gounder was doing brick business and not her husband.
56. P.W.10, who knows Rangasamy Gounder even 20 years prior to his death, states that Rangasamy Goundar did brick business and made profits. He was helped by his father-in-law and he used to take loans from third parties because he was inspiring confidence in public In cross-examination he stated that it was Rangasamy who used to attend to the cultivation work and brick business.
57.P.W. 11, who is a native of Oulgaret and who knows Rangasamy Gounder, states that he knows Rangasamy Gounder since his 9th year. Rangasamy, according to him, used to hire his father's cart and at times he used to take their men also for his brick kiln. He was running a brick kiln. He used to see him counting the bricks and extracting work from the labourers. Rangasamy Gounder used to give P.W. 11, 3 or 4 paise also when he was 9 years of age. He is emphatic that he never saw either Rangasamy's father or his brother Govindasamy Goundar in the brick kiln. In cross-examination he affirms his knowledge till he attained the age of 19 that Rangasamy Goundar used to run the brick kiln. Merely because he states that he does not know Govindasamy or his father we do not think his evidence can be rejected.
58. P.W. 12, who is a native of Muthira-palayam and who knows Rangasamy Gounder since his childhood, states as follows:
I know Rangasamy Goundar's father-in-law by name Govinda Cavoundar who took in adoption the plaintiff since he had no issues. Govinda Cavoundar had brick kiln, banana grove and was looking after cultivation. After marriage . P.W.1's husband Rangasamy Gounder started working in his father-in-law's brick kiln.
After Govinda Cavounder became old, he handed over the business of brick kiln to his son-in-law Rangasamy to carry on. He also gave money. Rangasamy Cavoundar accordingly continued the business of brick kiln. He had also taken on lease 7 1/2 kanys of land from Tirumudy Chettiar, it is Rangasamy Cavoundar who was personally cultivating the lands.
Again he states:
Rangasamy Cavoundar used to discharge by sending ground nuts and on one occasion I have myself delivered the groundnut baga towards the hand loan. One Krishnasamy Odear of Armathpuram who was a contractor for Savana Mills used to come and purchase bricks from Rangasamy Cavoundar and take delivery of the same from the brick kiln. Another person Ranganathan purchased bricks from Rangasamy Cavoundar for the purpose of constructing the maternity. Sinnatha Mudaliar of Muthialpet and his brother both purchased bricks from Rangasamy Cavounder. Similarly Arumugham Mudaliar grocery merchant or Pondy and many others have purchased bricks from Rangasamy Cavoundar, nor Govindasamy Cavoundar had anything to do with the brick business of Rangasamy Goundar. Rangasamy Cavoundar purchased at Kadirgamam the garden of Ponnusamy Mudaliar and used the trees situated therein for the brick kiln. Then he sold away the bare land. Rangasamy Cavoundar purchased some land at Muttilingapet with the trees that were standing, and after cutting the trees, sold away a major portion of the land and the remaining land he gifted it to the temple of Mariam-man Koil. The extent of the land gifted to the temple will be about one and half kany. After the demise of Rangasamy Cavoundar his wife Rasambal managed it.
In cross-examination it is stated by him:
Govinda Cavoundar son of Muniappa Cavoundar had brick kiln in two places. Till the marriage of his daughter Rajamballe he did the business of his own but after the marriage of his daughter with Rangasamy Cavoundar, they both jointly did that business.
The credibility of this witness has not been shaken in any way in cross-examination.
59. As rightly contended by Mr. N.C Raghavachari, these accounts coupled with the recitals in the various sale deeds about payment of money by Rangasamy together with the oral evidence do establish his independent resources obtained from the brick business as well as cultivation. It is impossible to prove by long lapse of time as wherefrom Rangasamy got the resources. After all what does law require? It merely says that the major sons are not forbidden while living under the power of father and residing with his own private properties. However, these properties are presumed to belong to the head of the family so long as the contrary proof is not produced. In this case such a presumption has been rebutted by contrary proof.
60. Relying on Sorg it is concluded by the trial court that the raising of the loans would not be sufficient. The trial court relies on the following passage at page 42:
Was the price of the suit property paid by means of a loan taken by the son? This circumstance, by itself, is not yet a sufficient proof of the private character of the acquisition for on account of its special assignment, the loan itself is considered as having been made in the interest of the family and refunded by means of common funds. In short, to fight the presumption of family property (properties familiale) it is necessary to prove that the acquisition for valuable consideration was made by means of the income not only own to the son, but also which were never mixed with the patrimony of the family.
Our above analysis of Exs.A-6 to A-9 clearly prove that this statement of law is inapplicable with regard to those acquisitions made by Rangasamy.
61. Apart from the fact there was no mixing up of the property is clear in that under Ex,A-4 (equal to Ex.B-57) dated 16.6.1956, Govindasamy sells Subbaraya's property alone. Again under Ex.A-38 Govindasamy creates a mortgage of his own properties purchased from Antonysamy Mudaliar. That very purchase from Antonysamy was made only on 30.9.1954 long after the death of Rangasamy. More than above this there are declarations first by Subbaraya himself under Ex.A-13. To this document Govindasamy was also a party. The declaration is to the following effect in paragraph 17 of the document:
17. The debtors have declared that the said Soupriya Goundar is the owner and possessor of the estate which has been named and defined. The serial No. 1 toll inclusive is according to the sale deed drawn up in his favour-by Meenakshi Ammal before the undersigned Notary on the 27th April, 1940 and transcribed on 6th of May on the same year. Plot No. 96 (RV.No.) and the said Rangasamy Goundar is the owner of the estate properties named from serial 12 till 16 inclusive according to the sale deed drawn up in his favour by Mrs. Vedavalli Ammalle before the undersigned Notary dated 18th October, 1945 transcribed on the 30th of the same month RV 336 No. 68, the said properties are free from any encumbrance and no inscription has been stamped of any alienation, so that the legitimate people undertake to produce later on, to the creditor certificates free from inscription and not transcribed which has been accepted by the said creditor on the whole.
We have already referred to this earlier. But the above extract clearly establishes the manner of treatment of the property.
62. Similarly to Ex.A-13, in Ex.B-45 dated 19.3.1949 mortgage, wherein father Subbaraya as well as two sons Rangasamy and Govindasamy were parties, there is a declaration that items 12 to 16 belong to Rangasamy. These constitute clear acknowledgments on the part of Subbaraya as well as Govindasamy that they are the separate acquisition of Rangasamy. The presumption that the acquisition by the major sons belong to the head of the family is completely whittled down by the acknowledgments, especially when Subbaraya himself had chosen to acknowledge.
63. Then we come to Ex.A-1. That is a notarial deed in which there is a declaration to the following effect:
That the said Mr.Rangasamy Cavoundar died intestate 23rd October, 1951, Coundpeth and on request, a certificate of inheritance was issued by the mayor of Oulgaret Township on 19th March, 1952 and he has left on the male line of descendants only his brother the applicant Govindasamy Cavounder as Com mun en biens and his widow usufruitiere.
On the same date another document was executed by Govindasamy Goundar and the appellant/plaintiff executed a mortgage in favour of Sinnata Mudaliar. As regards the properties covered by Ex.A-49, viz., the purchase by Rangasamy from Md.Cassim it is stated as follows in Ex.A-5:
The debtors have declared that their brother/husband Rangasamy Goundar was the owner having bought it from Mohammed Cassime, in front of the Notary Philippe Diagou Mudaliar.
However, Mr. Govind Swaminathan would state that this declaration under Ex.A-5 is of no consequence because it is stated that the said Rangasamy Goundar died intestate leaving his only brother com mun en biens, which, according to him, would be common property. First of all, this is a statement of law. The understanding of the law by the parties is of no significance. In so far as the properties covered by Ex.A-9 is concerned the unequivocal declaration is that Rangasamy was proprietaire. Strangely it was not declared that the properties belonging to 'communaute proprietaire.' Not only that. In Ex.A-1, Rajambal the appellant/plaintiff is described as 'usufruitiere'. The meaning of this word as found in Harrap's Shorter French and English Dictionary at page 660 is, "tenant for life." These acknowledgments in our considered view are very vital. As a matter of fact, D.W.4 was confronted with the description of the appellant/plaintiff as 'usufruitiere1. He was not able to answer effectively. Thus we conclude that the suit properties covered by Exs.A-6 to A-9 are separate acquisitions of Rangasamy. As to the possession and enjoyment of these properties we will deal with the same in the next point.
64. Point No. (3): We will now take up the question of possession. It is the case of the appellant/plaintiff, as averred in the plaint, that she was in possession since the death of her husband Rangasamy till 2.12.1972 when alone Govindasamy prevented the plaintiff from cultivating the suit properties. The documentary evidence concerning possession of the plaintiff is Ex.A-16, which is a registered agreement between the plaintiff and the New Horzion Sugar Mills dated 14.3.1973. Ex.A-30 is the statement of the abstract of accounts dated 10.12.1974. That relates to the plaintiff. That clearly shows that she has been supplying sugarcane right from 1964 till 1974 and that payments were made to her with regard to those supplies. Under Ex.A-23 dated 25.5.1973 the New Horizon Sugar Mills wrote to the plaintiff how she was entitled to harvest the sugarcane crops without the knowledge of the Mills. To that she replied under Ex.A-28 on 31.5.1973 that Sarojini Devi (Second defendant) unauthorisedly cut and carried \ away the sugarcane in spite of the interim order of injunction for the period 1973-74 and that the same was supplied to South India Steel and Sugars Ltd., Mundiambak-kam. There is one more letter to which we will make a reference viz., Ex.A-27 dated 5.4.1973, whereunder Rajambal the appellant/plaintiff writes /that owing to partition of the lands and a case regarding partition having been filed in a court of law, she is unable to comply with the order of the Mills with regard to the ratoon sugarcane crops for the year 1972-73, for which she was given cutting order on 1.4.1973. She would further request that she might be permitted to harvest the sugarcane during the season 1973-74.
65. In addition to the above, Ex.A-32 gives the details of loan advanced in favour of Rajambal right from 1968-69 upto 1971-72. The properties mentioned therein are the suit properties. For these loans Govindasamy himself stood as surety. Ex.A-33-A is the true copy of the credit extract, of the Ledger of Muthirapalayam Village Co-operative Financing Society. Ex.A-33-B is the true copy of the Ledger for 1970. Similarly for 1971-73 we have Ex.A-33-C and Ex.A-34-A. As regards Ex.A-34-A there is an arbitration case, A.R.C.No. 581 of 1972. P.W.3, a Senior Inspector of Co-operative Society, Pondicherry speaks of the proceedings wherein a case was filed against Govindasamy as legal heir. According to him, he is not in a position to say whether the amount was recovered. The oral evidence consists of P.W.1's testimony. She states as follows:
During the lifetime of my husband he used to cultivate himself all the suit properties and enjoyed the income....After the demise of my husband, I used to look after the cultivation personally and get work done through paid workers. In the garden I used to raise plantains and tapiocca and in wet lands paddy. I used to sell the paddy, plantains and tapiocca and collect the amounts. I have also raised sugarcane crops some time after....Ex.A-14 is a payment order for the season 1971-1972 by New Horizon Sugar Mills in my favour. Ex.A-15 is a permission for growing sugarcane for 1973-1974 issued by New Horizon Sugar Mills in my favour dated 14.3.1973....Ex.A-17 is a certificate D' heredite issued by the Mayor at my instance dated 29.3.1973....
Ex.A-20 is a duplicate identity card which I obtained from the Mill, the original cards were left in the suit house....Since over 10 years sugarcane crop is raised over an extent ranging not less than 5 acres and not more than 15 acres .... The income from sugarcane will be ranging between Rs. 10,000 and Rs. 20,000...
66. P.W.5, who is the Accounts Assistant in New Horizon Sugar Mills, speaks of the payment orders, the registration agreement, the identity card and the statement of the abstract of accounts from 1964-65 to 1973-74 marked as Ex.A-30.
67. P.W.6 is the Assistant Cane Superintendent in New Horizon Sugar Mills. He also speaks to these facts.
68. P.W.8 is the Assistant in the cane Accounts Department. He states that Ex.A-14 is the final cane payment order issued to Mrs. Rajambal by the new Horizon Sugar Mills for the supply of cane made by Rajambal. Ex.A-30. according to him, is the substract of the accounts of the plaintiff.
69. P.W.9 is the Manager in the Muthirapalayam village Co-operative Agricultural Credit Society. He states that the loan under Ex.A-33 and the various other loans were given to the plaintiff for growing paddy or sugarcane.
70. P.W.10, who is a native of Muthirapalayam and who knows Rangasamy Goundar 20 years prior to his death, states that Rangasamy Goundar used to cultivate the lands himself and after his demise his wife Rajambal used to manage the property. She used to collect the money and sell the yield. P.W.10 would further state that she used to go twice or thrice in a week to Rangasamy's house and she used to call on him in his capacity as cashier of the temple. In cross-examination he states that 18 cawnies of dry land at Katvaji and 44 cawnies of wet lands were owned by Rangasamy, and he irrigated 18 cawnies of dry land with motor pump.
71. P.W. 11, who is a native of Oulgaret and who knows Rangasamy Gounder, states that so long as Rangasamy Gounder was alive it was he who was enjoying the land. After his demise it is enjoyed by Rajambal, the plaintiff. He used to purchase coconuts from Rajambal. Like, wise P.W.12 states that it was Rangasamy who was personally cultivating the lands and Rangasamy purchased from Sethurama Chettiar 18 cawnies of lands out of the income derived from the brick kiln and the profits derived from the cultivation. It was further stated by him that Rangasamy Goundar purchased in all 384 cawnies of land. During his lifetime, he alone enjoyed it and nobody else. Hussier Ramachandran used to collect the amount from Rangasamy Goundar. P.W.12 further adds that after the demise of Rangasamy, his wife Rajambal managed the lands. When Rangasamy died, over 16 cawnies of land there was tapioca. Rajambal sold it to various persons from Pondicherry. P.W.12 was present when tapioca was harvested and sold. He purchased banana seedling for Rajambal, which were planted in 16 cawnies of land. He also states that Rajambal used to invest for the cultivation and realise the sale proceeds.
72. No doubt patta was changed in the name of Govindasami. But, how the plaintiff was in possession even in 1968 is not explained and that too how Govindasami stood as surety when loans were advanced by Mutrapalyam village Co-operative Society, as evidenced by Ex.A-33, is not explained. Therefore, we have to necessarily conclude having regard to the documents and the oral evidence that Rangasamy was in possession till his death and after his demise it was only the plaintiff who was in possession of the suit properties. This is also a point to be put in favour of the plaintiff in that Rangasamy always treated his properties as his own and enjoyed as such, to which there was no demur either from Subbaraya or Govinda-samy. Therefore, we answer point No. 3 holding that the plaintiff was in possession of the suit properties.
73. Thus we conclude that the appellant/plaintiff will take the properties with absolute rights by virtue of Section 14(1) of the Hindu Succession Act.
74. An argument was advanced by Mr. Govind Swaminathan, learned Counsel for respondents, that even if the properties are held to belong to Rangasamy, the plaintiff would only be a Droit viager with her daughter being the heirs, in the event of Rangasamy not being a member of the joint family. We do not think we need to consider that question. In so far as the plaintiff seeks the declaration against the heirs of Govindasamy she undoubtedly would be entitled to such a declaration.
75. In the result, the appeal will stand allowed. The dismissal or the suit is hereby set aside and the suit will stand decreed as prayed for. The receiver is hereby directed to hand over possession of the properties to the plaintiff. Having regard to the relationship between the parties, we do not think this is a fit case for awarding costs.
Nainar Svndaram, J.
1. The widow of a brother in the family is being denied the right to succeed to the properties of her husband. This is the controversy that was raised in the Court below and the plaintiff, being unsuccessful before it, is now before this Court by way of this appeal. The law that is sought to be applied to the facts of the present case is the Hindu Law, which is being administered in the Union Territory of Pondicherry. The branch of the other brother, the defendants in the suit, are denying the rights of the plaintiff. There is already the judgment of my learned brother, Mohan, J. touching and dwelling upon the facts of the case and I do not propose to tread over factual grounds, except to delineate a few bare features. There was one Subbaraya Gounder who died in July, 1951. He had two sons, Rangasami Gounder, who died on 23.10.1951, and Govindasamy Gounder, who died in April, 1973. The plaintiff is the widow of Rangasami Gounder. The first defendant is the widow of Govindasami Gounder. Defendants 2 to 6 are the children of Govindasami Gounder. The suit is one laid by the plaintiff for declaration of her title to the properties and for recovery of possession of some of the items and for permanent injunction in respect of the other items. These properties were apparently acquired by Rangasami Gounder. I say apparently, because the title deeds stand in his name. On the ground that during the period of acquisitions there was the Regime de la co-propri-ete Familiale. when the two sons, Rangasami Gounder and Govindasami Gounder lived jointly with their father Subbaraya Gounder, a legal impediment is being sought to be imposed that the acquisitions by Rangasami Gounder must be presumed to have belonged to the chief or the head of the family, namely, the father Subbaraya Gounder, till the contrary is proved. The gamut of the legal impediment is being projected in this manner. If the acquisitions by Rangasami Gounder are to be held to be that of the father Subbaraya Gounder, then, on his death in July 1951, a commu-naute opened between the two brothers Rangasami Gounder and Govindasami Gounder and the properties were held by them as members of the communaute. Since Rangasami Gounder died on 23.10.1951, undivided from his brother Govindasami Gounder, long before the advent of the Hindu Succession Act, 1956 to the Union Territory of Pondicherry on 1.10.1963, the properties went by survivorship to Govindasami Gounder alone and the plaintiff being the widow of Rangasami Gounder could not claim any manner of propriety rights in the properties, so as to make them enlarge into absolute estate. If the above proposition is accepted on the facts of the case, the plaintiff cannot be accorded the reliefs as prayed for by her. But the primary and strenuous endeavour on behalf of the plaintiff was to show that even on the basis that the acquisitions were made during the Regime de la co-propriete Familiale, the presumption has been amply rebutted and the properties acquired by Rangasami Gounder could not be held to have belonged to the head of the family, namely, the father Subbaraya Gounder and they were only the exclusive, individual and separate properties of Rangasami Goundar which, on his death, were held by his widow the plaintiff with a limited estate and which right, on the application of the Hindu Succession Act 30 of 1956 to the locale enlarged itself into an absolute estate. Some of the statements of Hindu Law relevant to the facts of the present case and as applied to the Union Territory of Pondicherry have their own peculiarities. 1 have gleaned out such statements - which I think I can appropriately call, the French Hindu Law - from the English translation of the well-known author - Sanner's French Book on Hindu Law, as it is applied to the Hindu in the Union Territory of Pondicherry. The translation has been done by Mr.S.Perumal, a member of the Bar at Pondicherry and this has been commended by none else than the very enlightened Judge of this Court, Mr. Justice S.Maharajan as a useful work to the Bench and the Bar alike. Mr.David Annoussamy, as he then was, presently a Judge of this Court, has also contributed a foreword to this translation. Sanner was a very distinguished French Jurist who held prestigious and very high judicial posts in the erstwhile French Pockets in India. He is quoted and accepted as an authority on French Hindu Law. Considering the facts of the case and the controversy that has arisen over them, it will be sufficient if I refer to the relevant passages throwing light on them. Here is a contention raised by the defendants that the properties were acquired during the Regime de la co-propriete Familiale and hence it got stamped with the character of the property of the chief or the head of the family, namely, the father and on his death, a communaute opened between the two major sons and on the death of one of the sons, the property devolved on the surviving son leaving no property right for the widow of the deceased brother; The supremacy or the sovereignty with regard to property rights of the chief or the head of the family during the Regime de la co-propriete Familale, is considered so wide that all the acquisitions during the Regime de la co-propriete Familiale either by the father or by the major sons are presumed to be those of the father alone. The sons do not acquire a right in the properties, by they so ancestral or. Self acquisitions. Mr. Justice S. Maharajan, in his introduction to the book referred to above, observed thus:
...The Hindu Law notion that a son acquires interest in the joint family property by birth has been done away with in French India. According to French jurisprudence, so long as a Hindu father is alive, he can sell his properties for good consideration, because he is the sole and exclusive owner of the properties of the family. His sons would have no power to impugn his sales so long as the sales are genuine. The French Courts have however endeavoured to do equity by permitting the sons to file suits restraining prodigal fathers from wasting their properties. If waste is proved, the courts appoint an officer of Court without whose approval, the father cannot alienate the properties. The Hindu Law notions of pious obligation or of debts tainted with immorality or illegality, have played no prominent part in the shaping of the French Hindu Law in view of the almost absolute rights of ownership attributed to the Hindu father in French India. But so far as gifts and bequests of Hindu fathers are concerned, some French jurists like Sanner attempted to transplant the concept of 'reserve' from the Code Civil into Hindu law; a Hindu father, according to them, could not gift or bequeath more than half a share if he has one child, more than one-third if he has two children, and more than one-fourth share if he has three or more children.
...I may also refer to another principle of Hindu Law, which is peculiar to Pondicherry. Although the Hindu son has no interest by birth in the property of the father, yet, if he plaices any acquisitions in his own name when he is under parental authority, the French Courts have been presuming that the sons's acquisition would form part of the family property. But this presumption would not be available if during the lifetime of the father, the son goes away from the parental roof and control and acquires properties in his own name with his own earnings.
Mr. David Annoussamy, as he then was, in his Foreword, referred to the peculiarity of the French Hindu Law governing a Hindu family in the Union Territory of Pondi-cherry in the following terms:
It is true that now large areas pf Hindu Law have been codified and that the new Acts have been extended to this part of the country as well. So the importance of the edifice carefully built by the French is vanishing. But one important area of Hindu Law, namely, the joint family system is yet to be codified; that is precisely the area in which there are vast differences between the rules evolved here and elsewhere. These differences will continue as long as there is no legislative intervention. In fact, since some customs have been found to exist here by courts for a continuous period of time, they have to be followed. Even if it is considered that the French Courts have given an erroneous interpretation of Hindu Law, the doctrine of stare decisis will have to be given due consideration. Therefore, for all practical purposes, it is necessary to know what are exactly the contours of the Hindu Customary Law as recognised by Courts here.
Balasubrahmanyan, J. in Ramalingam v. Manicka Gounder referred to the peculiarity of the French Hindu Law with regard to assets held by a Hindu family in the Union Territory of Pondicherry in the following terms:
It may be observed by way of preface, that wherever Mitakshara law was being administered in this country according to its ancient texts, succession to ancestral or coparcenary property was by survivorship and not by inheritance. The rule was general in its application, and brooked no exception. It applied, for instance, whether the deceased died leaving undivided brothers or died leaving undivided sons. The rule of survivorship operated in both the cases. The particular reason why, even in the latter kind of case, the rule governed the devolution was because the sons had a right by birth in the ancestral property even during their father's lifetime. In the territory of Pondicherry, however, the legal position was quite different for a pretty long time. The textual Hindu Law had yielded to a local variation, wrought, it would seem, by custom and usage. The position which obtained in Pondicherry was summed up by the French writer Sanner in his well-known work on Hindu Law in the following terms:
'Today, by virtue of a more correct interpretation of custom, the theory of coparcenary system between father and sons in respect of the ancestral properties is abandoned in our establishment of Coramandal Coast. It is to the head of the family only, in reality, in the judicial sense of the word the assets, deriving from the ancestor belong and he alone has capacity to exercise, in principle, the right to dispose, which is conferred on him by owner's right.
'That this was the law which was being administered by Courts in Pondicherry is found from a recent application of it in a decision of the Superior Court of Appeal, Pondicherry in Appeal No. 326 of 1964. That Court consisting of a three member bench of which Maharajan, J. was the President echoed Sanmer with the following passage: 'Under Hindu Law, as it is in force in Pondicherry, Hindu sons do not acquire any interest in the father's property by birth whether the property be the self-acquired property of the father of his ancestral property.
On the facts relevant for the purpose of the present case, the following passages from the English translation of Sannar need extraction:
Presumption of family property - We have seen that the son, who has attained his majority is under the dependence of his father, by the very fact that he continues to live under his roof. This situation gives birth, in the relation between father and son, so far as the fortune they possess to a presumption of family property, from which emanate particular rules. The properties under this regime can be divided into three categories. 1) ancestral properties 2) acquisitions of the father, 3) acquisitions of the sons.
Acquisition of the sons - When the major sons live under the father's authority and are residing with him, it is not forbidden to them, according to existing usages, to possess particular properties. But those properties are presumed to belong to the Chief of the family, till the contrary is proved.
How the proof is made? if the acquisition is gratis, no difficulty says Mr. Sorg the treatment of the donation deed will reveal the rights of the son.
If it is an acquisition by onerous deed it must be proved that it was made with the separate money of the son. Is it sufficient to prove that he was carrying on a business, or an industry, Or any profession yielding income? No. by principle, because such an income is paid to the father and it becomes part of the family patrimony. The sons living under the father's authority, observes the Tribunal of Pondicherry, is a judgment of 3rd March, 1916 are not prevented from earning a livelihood and the fact, that they held a remunerative office, is not sufficient to prove that, the acquisitions made by them, in their name, are personal to them.
The price of the disputed property, it is paid by means of a loan raised by the son? This circumstances by itself will not be a sufficient proof of the separate acquisition, because, by reason of its special nature, the loan itself is reputed to have been made in the interest of the family and discharged by common funds.
In short, to fight against the presumption of family property, it is necessary to establish that the acquisition by onerous title was realised, not only with the income personal to the sons, but also that they were never merged with the family patrimony...
The other propositions recognised by Sannar are: A communaute or the common family commences between the male legitimate heirs in direct descending line of a father of a family, himself not being a member of a common family. The properties of the deceased father devolve on the members of the communaute. The death of one member of the communaute will have no bearing on the family association. But when only one male member is left surviving, the properties which remain undivided will devolve on that sole male member and no co-existing female element has any right to pretend herself as co-owner of those properties with him.
2. In the other parts of our country if there is a joint family, headed even by the father, it is not to be presumed straightaway that any acquisition by a member of the joint family must be held to be that of the joint family. The burden of proof is not static. If it is shown that the joint family stood possessed of ancestral nucleus or properties of its own and they were yielding income leaving sufficient surplus, then, the burden is on the acquirer, a member of such joint family, to show that his acquisition was without resort to the resources of the joint family and it was made out of his own toil and earnings. But, as per the French Hindu Law, the theory of Regime de la co-propriete Familiale has been introduced and it is stated that if the major sons live under the father's authority and are residing with him, it is not forbidden to them, according to the existing usages, to possess particular properties, but those properties are presumed to belong to the chief or the head of the family till the contrary is proved. On the opening of the communaute after the demise of the father, the position as amongst the members, namely, the sons, appears to be the same as the members of a joint family. The impact of the introduction of the Hindu Succession Act 30 of 1956 may also be taken note of. But on the facts of the present case, such a contingency would not arise because Rangasami Gounder died even before the said Act was made applicable to the Union Territory of Pondicherry and hence, the law as it prevailed prior to such introduction enabled survivorship to be operative in spite of any widow or other female heirs being alive in the branch of Rangasami Gounder. The presumption with regard to acquisition by the major sons during the Regime de la co-propriete Familiale is a rebuttable presumption. If it is a case of donation or gift deed, the document itself will speak and it must be held that the acquisition under such a deed is exclusively that of the son. In other cases, it must be proved that the acquisition was made with the separate and personal income of the son, and further the acquisition never merged with the family patrimony. The rebuttal materials may fall under different categories. It could be pleaded that the son was carrying on a business or an industry or a profession of his own yielding sufficient income. But this by itself has been held to be not sufficient. It could also be pleaded that the price or the consideration for the acquisition was paid by means of a loan raised by the son. Here again, the peculiar legal position governing the locale is that that circumstance by itself will not be sufficient proof of the acquisition, because by reason of its special nature, the loan itself is reputed to have been made in the interest of the family and discharged by common funds. But in spite of the rigorous rule of presumption, it is not as if the son who has made the acquisition is helpless. He can still pass through the hurdle and establish, as already referred to, that the acquisitions were made by income personal to him and furthermore, they were never merged with the family patrimony. It is contemplated that if there had been an admission by the father of the right claimed by the son, that would be an excellent evidence that the acquisitions were only those of the son and they were never merged with the properties of the family.
3. The plaintiff is asked to face only a rebuttable presumption. It is a presumption of fact. If the property is acquired by the major son during the Regime de la co-propriete Familiale, it has got to be presumed that he would not have acquired it out of any independent and separate source of his, and the property must have got merged with the family patrimony. The term 'presumption' has not been understood and used by jurists and Courts uniformly. The yardstick for rebuttable evidence is not always a prosaic and an uniform one irrespective of the facts and circumstances of the case. The Court is asked to draw an inference affirmative or negative, from an existing fact, of some other fact, by a process of probable reasoning. The term in its strictly legal sense, is used to designate an inference, affirmative or disaffirmative, of the existence of some fact, drawn by a judicial tribunal, by a process of probable reasoning, from some matter of fact, either judicially noticed, Or admitted or established by legal evidence to the satisfaction of the Tribunal. However, a presumption has to give way to facts which speak against it. The Court must be conscious that presumptive evidence is always inferior to direct evidence, because presumptive evidence is only a substitute for direct evidence and it can have its away only in the absence of total lack of direct evidence to the contrary. Courts should always view the available rebuttable evidence liberally. As observed by Best - Evidence 9th Edition - "Hence a given portion of credible direct evidence must ever by superior to an equal portion of credible presumptive evidence of the same fact."
4. The discussion of the factual materials done by my learned brother, Mohan, J. I respectfully adopt and they do indicate that the presumption has been successfully rebutted and the properties have been shown to be only the independent, separate and exclusive properties of Rangasami Gounder. If this is the conclusion that could be reached on facts, the plaintiff has to be accorded the reliefs asked for by her and 1 agree with my learned brother, Mohan, J. that the appeal has got to be allowed; the judgment and decree of the Court below are to be set aside and the suit of the plaintiff has to be decreed as prayed for.
5. Accordingly, this appeal is allowed as per the judgment of Mohan J.