Madras High Court
K.Ramalingam vs K.Raghuraman on 5 October, 2012
Author: R.Banumathi
Bench: R.Banumathi, R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5.10.2012 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE R.SUBBIAH A.S.No.564 of 2006 K.Ramalingam .. Appellant vs. 1.K.Raghuraman, 2.K.Subramaniam, 3.T.Kuppuswami, 4.Navaneetham .. Respondents Prayer: Appeal Suit filed under Section 96 of Civil Procedure Code against the judgment and decree dated 31.3.2006 made in O.S.No.504 of 2004 on the file of Additional District Judge Fast Track Court-1, Chingleput. For Appellant : Mr.AL.Ganthimathi For Respondents : Mr.V.Raghavachari for 1st Respondent Mr.Arumugam for RR.2 to 4 JUDGMENT
R.BANUMATHI,J This appeal arises out of the judgment and decree dated 31.3.2006 made in O.S.No.504 of 2004 on the file of Additional District Judge Fast Track Court-1, Chingleput, whereby the trial Court passed a preliminary decree for partition by allotting 1/4th share to the 1st respondent/plaintiff. The unsuccessful first defendant is the appellant. For the sake of convenience, the parties are referred to as per their array in the suit.
2. Defendants 1 and 2 and plaintiff are the sons of 3rd defendant. 4th Defendant is the wife of 1st defendant. The joint family originally owned ancestral property of a total extent of ten acres (Suit Item Nos.1 to 7) in Cheyyur. Defendant No.3 has also been taking on lease lands of one Venu and Adikesavulu and also salt lands and was getting substantial income. The 3rd defendant was also doing contract work for Public Works Department and Harijan welfare Department. The elder son - 2nd defendant was employed in Bharat Heavy Electricals Limited ( in short, "BHEL")and he joined in service in or about 1970 and voluntarily retired in 2001.
3. Case of plaintiff is as follows:
The 2nd defendant, being employed and having contacts, helped the family in getting Indane Gas Dealership in the name of 1st defendant and that the said dealership was for the benefit of joint family. The joint family business was started in 1984 under the name of "Pattammal Gas Agency". For starting the gas agency, 2nd defendant advanced Rs.1.25 lakhs and 3rd defendant father had advanced Rs.35,000/- from his fixed deposit. The 3rd defendant also advanced Rs.57,000/- by taking loan from IOB, Tambaram against security of the family ancestral properties and the said loan was taken in the name of the 1st defendant and 3rd defendant is the guarantor. Initially, the gas godown was put on a leased site and subsequently with the efforts of the 2nd defendant, item No.8 in Tambaram Taluk was purchased for putting up the godown in Tambaram. In 1984, allied business in sale of stove under the name of 'Gowri Oom Appliances' was started in the name of plaintiff. Both Gas Agency and stove sales were under the administration of the 1st defendant and the 1st defendant received all the income from the business. The 1st defendant was pumping the income from the business for purchasing the properties in the name of 1st defendant and also in the name of his wife- 4th defendant. The extent of six grounds in Mudichur Road, Tambaram (item NO.8) was purchased for the benefit of the family out of the income from the above business in Gas Agency and sale of stoves and also agricultural income in the name of the 1st defendant. The gas godown was constructed on an extent of 3 grounds and gas agency is being run there and in the remaining two grounds commercial complex is constructed and two shops were rented out and remaining part is being used as office for the Gas Agency. The 1st defendant sold the balance one ground to one Chakrapani Reddiar for a sum of Rs.8 lakhs. The plaintiff was assisting the 1st defendant in running gas agency, which includes sale of stoves from 1984 to 1995.
4. In 1995, the 1st defendant and his wife began to show indifferent attitude towards the plaintiff, with the result, the plaintiff had to go back to the father's place at Cheyyur. Since then, the plaintiff had been living with his father and taking care of his aged father. Mother - Pattammal passed away in 1979. The 1st defendant had purchased a housing Board plot and building of > ground in Mullai Nagar, Tambaram west (item No.9). Housing flat in Mylapore, Mandavelli was purchased with initial deposit of Rs.36,000/- in the name of plaintiff and it was sold in 1991 by the 1st defendant and the plaintiff and the sale proceeds was utilised for the stove business.
5. Further case of plaintiff is that the 2nd defendant was working as General Manager in Bharat Heavy Electrical Limited and voluntarily retired from service in September 2000 and he has been helping family financially in order to promote joint family business. On 1.10.1991, the 1st defendant executed Ex.A.8 agreement in favour of plaintiff admitting joint family nature of the business in gas agency and agreeing to give 30% share in the profits to the plaintiff. As early as in 1993, a Panchayat was held and in the presence of respectable Panchayatdars and defendants 2 to 4, wherein, the 1st defendant agreed and admitted that the gas agency is a joint family concern and that the plaintiff is entitled to a share therein. In pursuance of the Panchayat, the original agreement, which was in the custody of the 3rd defendant, was taken by the 1st defendant on the representation that he wanted to show it to his advocate and that the 1st defendant did not return the agreement to the 3rd defendant thereafter. The 1st defendant had also returned to the 2nd defendant Ex.B.13 letter (dated 4.4.1993) admitting that the Gas Agency and allied businesses and also properties purchased therefrom belonged to the joint family and that the father and 3 brothers have shares in them. On 5.8.1994, the 1st defendant has paid Rs.2 lakhs to the plaintiff towards his share of income from the Gas Agency Joint family business and subsequently in 1995, the 1st defendant paid another Rs.1 lakh to the plaintiff calling upon the defendants 1 to 3 to effect partition. Plaintiff sent a notice on 20.4.2002 and sent a notice demanding partition. Even though defendants 2 and 3 are amenable for partition, the 1st defendant had sent a reply containing false allegations. Therefore, plaintiff filed the suit seeking for partition of the suit properties into four equal shares and allotment of one such share to him.
6. Defendants 2 and 3 have filed written statement admitting the entire plaint averments and stating that the properties are to be divided into four equal shares and one such share is to be allotted to the plaintiff and praying to decree the suit.
7. Resisting the suit and denying the plaint averments, the 1st defendant filed the written statement contending that by his individual initiative he got Gas Agency allotment and started the business in a leased site and that he borrowed loan and constructed godown for running gas agency. According to the 1st defendant, no amount was put for the said Gas Agency and that Gas Agency is individual business of the 1st defendant. The plaintiff was running Gowri Ome Appliances for supply of gas stoves independently and he alone was taking income from the said Gowri Ome Appliances. Since the plaintiff was not interested in taking employment in Port Trust, the 1st defendant had given financial assistance to the plaintiff in August 1994 to the tune of Rs.4 lakhs for running finance company at the native place Cheyyur village in the presence of father Kuppusamy - 3rd defendant. The suit property item No.8 in Mudichur road was purchased by the 1st defendant in his individual capacity and 1st defendant constructed godown for gas agency out of his own earnings and loan. No joint family income was put in for the purchase of the property. Even though the 1st defendant was a Second Grade Teacher for 11 years he resigned the job and started the gas agency on his own and the Oil Corporation also allotted the agency only to the 1st defendant. Stating that the suit properties are not the join family properties and that the plaintiff is not entitled for partition of suit property earned and standing in the name of 1st defendant, the 1st defendant prayed for dismissal of the suit.
8. On the above pleadings, trial Court framed four issues viz., (1) Whether items 8 to 11 of plaint schedule properties are not the joint family properties of plaintiff and defendants 1 to 3?
(2) Is not the plaintiff is in joint possession?
(3) Is not the suit valued properly?
(4) What relief the plaintiff is entitled to?
9. On behalf of the plaintiff, the plaintiff examined himself as P.W.1 and Francis - attesting witness in Ex.A.8 was examined as P.W.2 and Exs.A.1 to A.9 were marked. On the side of defendants, the 1st defendant examined himself as D.W.1. Defendant No.3 father was examined as D.W.2 and the 2nd defendant elder brother was examined as D.W.3. Panchayatdars - Dakshinamurthy, Goswararao and Chakrapani were examined as D.Ws.4 to 6. Upon consideration of oral and documentary evidence, trial Court held that the joint family owned ancestral properties in Cheyyur village and the family had sufficient income and only from out of the joint family income, "Pattammal Gas Agency" was started. The trial Court pointed out that for gas agency the loan was obtained in the name of 1st defendant and 3rd defendant - father stood as guarantor and that the family properties were offered as security for borrowing. Based on Ex.A.8, trial Court held that suit properties items 8 to 11 are the joint family properties and that is why the first defendant agreed to give 30% share to the plaintiff. Insofar as the amount paid to the plaintiff by the 1st defendant, the trial Court held that the 1st defendant paid the amount to the plaintiff only because income was from the joint family properties. On those findings, trial Court held that the suit properties items 8 to 11 are the joint family properties and held that the plaintiff is entitled to a preliminary decree for partition of his 1/4th share.
10. Challenging the judgment, Ms.A.L.Gandhimathi, learned counsel for appellant contended that the plaintiff has not proved that the Pattammal Gas Agency item No.10 and item No.8 are the joint family properties. Learned counsel contended that even though items 1 to 7 in Cheyyur village are joint family properties, there was no surplus income. Drawing our attention to Exs.B.1 to B.5, learned counsel contended that the documentary evidence would clearly show that the Indane dealership was allotted to the 1st defendant only in his individual capacity and that as a proprietor of Gas Agency, 1st defendant was running the business. Learned counsel submitted that in the absence of any proof that joint family properties had any surplus trial Court erred in finding that Gas Agency was started on the joint family business. The learned counsel submitted that the trial Court erred in placing reliance upon Ex.A.8 and misinterpreted the letters written by the 1st defendant and also Ex.B.6 and the impugned judgment of the trial Court is erroneous and is liable to be set aside.
11. Learned counsel for the 1st respondent/plaintiff Mr.V.Raghavachari contended that the family had large extent of ancestral properties in Cheyyur village - suit properties Items 1 to 7 and that only from out of the income of ancestral properties, the 3rd defendant contributed Rs.35,000/- for starting the gas agency in the name of 1st defendant. Learned counsel submitted that Indane Gas Distributorship was obtained in the name of 1st defendant only for the benefit of the family members, which the 1st defendant had also acknowledged in Ex.A.8 and in the letters written to the 2nd defendant. It was further submitted that based upon proper appreciation of oral and documentary evidence, trial Court held that the suit properties items 8 to 11 are the properties purchased from out of the income derived from the ancestral properties and the joint exertion of the joint family properties and the judgment warrants no interference.
12. Reiterating the submission of the plaintiff, Mr.Arumugam, learned counsel appearing for defendants 2 and 3 has drawn our attention to the written statement filed by the father (defendant No.3) and also his evidence (D.W.2). Learned counsel submitted that the ancestral properties were offered as security and that the 3rd defendant stood as guarantor for borrowal of the amount from I.O.B, Tambaram would clearly show that the distributorship was intended for the benefit of the family. Taking us through the evidence of D.W.3 - 2nd defendant, the learned counsel submitted that only because of the tireless efforts of the 2nd defendant, who was employed in BHEL, the family could acquire the gas agency and other properties and based upon evidence trial Court rightly decreed the suit and the judgment is not to be interfered with.
13. Upon consideration of rival contentions, oral and documentary evidence, impugned judgment, following points arise for determination in this appeal:
1.Whether the trial Court was right in holding that the suit properties items 8 to 11 are the joint family properties of the plaintiff and defendants 1 to 3?
2.Whether the trial Court was right in holding that the plaintiff is entitled to 1/4th share in the family properties?
3.Whether the Judgment of the trial Court warrants interference?
14. Points No.1 to 3:- Suit property - item Nos. 1 to 7 of plaint schedule i.e., the lands in S.No.532/4B to an extent of 1.24 acres; S.No.175/4 to an extent of 1.20 acres; S.No.303/1 to an extent of 0.72 acres; S.No.290/2 to an extent of 0.66 acres; S.No.1/8 to an extent of 1.50 acres; S.No.5/1B of an extent of 0.30 acres; S.No.886/23 of an extent of 0.24 acres in Devarajapuram, Cheyyur are the ancestral properties, which belonged to the family of 3rd defendant and his three sons. Defendant No.3 and his three sons were cultivating the ancestral properties. That apart, the 3rd defendant had also taken lands of one Velu and Adiseksavulu on lease and 3rd defendant had also taken on lease salt pans. The family was doing agriculture and the 1st defendant and the plaintiff were assisting the father. The elder brother - 2nd defendant got employment in BHEL in the year 1970. The 1st defendant also got employment as a Second Grade Teacher in 1974 and continued till his resignation in 1984. In his evidence, D.W.2 - 3rd defendant stated that from the cultivation of lands in ancestral properties the family is getting substantially good income and had surplus. In his evidence, D.W.2 further stated that from out of the income from ancestral properties he contributed the amount of Rs.35,000/- for starting the gas agency in the name of the 1st defendant. Case of plaintiff and defendants 2 and 3 is that L.P.G. distributorship was obtained in the name of 1st defendant for the benefit of the family and that Gas Agency is the joint family business jointly held by the family members.
15. The case of 1st defendant is that even though there were joint family properties, from out of the suit properties under Item Nos.1 to 7 there was no surplus income from and out of which the gas agency was started and that there is no proof to show that the family had surplus income. On behalf of the defendants, even though it is alleged that ancestral properties items 1 to 7 were not having surplus, in his evidence, D.W.1 categorically admitted that they owned nine acres of ancestral properties and that they were getting more than 250 bags of paddy apart from other agricultural produce. The evidence of D.W.1 reads as under:
VERNACULAR (TAMIL) PORTION DELETED D.W.1 admits that defendant No.3 was owning one acre of salt pans and getting income.
16. In their evidence, plaintiff(P.W.1) and 3rd defendant (D.W.2) clearly stated that from out of the ancestral properties the family had surplus income. The 3rd defendant was also doing contract work in Public Works Department and Harijan Welfare Department. When D.W.1 - 1st defendant was questioned about his father's contract work in Public Works Department and Harijan Welfare Department, D.W.1 stated that he had no knowledge of whether his father had undertaken any contract work. As pointed out earlier, D.W.1 was in Cheyyur till 1984 i.e., till he came to Tambaram in 1984 after obtaining L.P.G.Distributorship. When the 1st defendant was in Cheyyur with father, it is quite improbable that he would not have known about the contract work done by the 3rd defendant. To the question put to the 1st defendant. he was evasive on the contract work done by the father, perhaps, only to avoid admitting the surplus income of the family.
17. D.W.1 worked as a Secondary Grade Teacher from 1974 to 1984. In 1974, the 1st defendant was getting salary of Rs.250/- per month. It emerges from the evidence that only on the instruction of elder brother - 2nd defendant, the 1st defendant applied for L.P.G.distributorship and distributorship was allotted to him in 1984 (Ex.B.1). Case of 1st defendant is that he was allotted Indane Distributorship under the Social Objective Scheme under Scheduled Caste" Category and therefore no amount need be paid to Indian Oil Corporation for getting Indane Distributorship at Tambaram. In 1984, the 1st defendant was getting salary of Rs.450/-. In his evidence, D.W.1 stated that he spent the amount for construction of godown and other incidental expenses by borrowing the money from one Chakrapani Chettiar. Therefore, the first defendant contends that Pattammal Gas Agency was started by him in his individual capacity from out of his own separate funds and nothing was paid out of the joint family properties to start Gas Agency.
18. Per contra, case of plaintiff and defendants 2 and 3 is that in 1984, father defendant No.3 (D.W.2) contributed Rs.35,000/- and D.W.3 - 2nd defendant contributed Rs.1,25,000/- from out of his savings. Defendant No.3 has been operating the bank account in Canara Bank, Cheyyur for quite some time. By perusal of Ex.B.11 Savings Bank account pass book of Defendant No.3, it is seen that on 3.2.1984, the 3rd defendant closed Fixed Deposit for Rs.16,000/- and again on 13.2.1984, another deposit for Rs.18,224/- was closed and credited to 3rd defendant's Savings Bank Account. On the same day 13.2.1984, defendant No.3 had withdrawn Rs.34,000/-. Again, on 30.04.1984, 3rd defendant had closed fixed deposit and an amount of Rs.34,215/- was credited to his account. On the same day 30.04.1984, two cheques were issued to "self" for Rs.24,000/- and Rs.10,000/-. In his evidence, the 3rd defendant had clearly stated that he paid the said amount of Rs.34,000/- and another Rs.1,000/-, put together, Rs.35,000/- to the 1st defendant for starting the gas agency. By perusal of Ex.B.1 Letter of Intent for Indane Distributorship at Tambaram, it is seen that the Letter of Intent was issued on 18.05.1984. The close proximity between the date of withdrawal of money by the 3rd defendant from his Savings Bank Account and the Letter of Intent issued in May 1984 clearly strengthens the case of the plaintiff that the father had contributed the amount for starting the gas agency.
19. The mandatory requirement of LPG Distributorship is to have a godown and also to procure all financial and other arrangements for operating the distributorship within four months from Ex.B.1 (18.5.1984). In his evidence, D.W.3 - 2nd defendant has stated that he has contributed Rs.1,25,000/- for the gas agency. Even though there is no documentary evidence to substantiate the evidence of D.W.3 that he contributed the said amount, viewed in the light of other evidence and conduct of parties, version of D.W.3 cannot be brushed aside. In Ex.B.13 letter addressed to the elder brother - 2nd defendant, the 1st defendant repeatedly expressed his gratitude in helping him in obtaining LPG distributorship. In Ex.B.13, the 1st defendant requested elder brother to take his share from the business and also the share in item No.8 of the property in Mudichur road.
20. In his evidence, the 1st defendant stated that he had taken sites of one Madhavan, Bhaktavatsalam and Palani on lease for five years and put up godown in the said place. For taking the sites on lease, amount of Rs.5,000/- was paid to each of them and for construction of godown an amount of Rs.30,000/- was spent. For construction of godown and for operation of the Distributorship, a loan of Rs.50,000/- was availed from IOB, Tambaram in the name of 1st defendant. For the said loan availed in the name of 1st defendant, ancestral family properties in Cheyyur was offered as security and the 3rd defendant stood as guarantor. Even though loan was taken in the name of 1st defendant, the fact that the ancestral properties in Cheyyur was offered as security and that the father - 3rd defendant stood as guarantor for the said loan, clearly establishes that LPG distributorship business was the joint family business.
21. Contending that if a member of a joint family carries on any business, the presumption is that it is his own separate business and that mere existence of nucleus, however small or insignificant, is not enough, the learned counsel for appellant placed reliance upon 80 LW 60 - N.S.Rathan v. S.Thangasami Pillai and others, wherein the Division Bench of this Court has held as under:
"Under Hindu Law if a member of a joint family, be he the father, or, the manager, member of the family, carries on any business, the presumption is that it is his own separate business, and that, when any member claims the business as joint family business, the burden is upon him to establish it. Mere proof of the existence of joint family or the joint family owning some joint fanily property does not give rise to any presumption. It must be established that the family possessed some joint property which from iits nature and relative value may have formed the nucleus from which the disbursements towards discharge of debts etc., should be taken into account and a comprehensive view should be taken as to whether in the particular set up of the family, the joint family could be regarded as a nucleus sufficient and adequate in character so as to impress the acquisitions with the character of the joint family property. Mere existence of a nucleus, however small or insignificant, is not enough. When the facts and the circumstances in which the properties were acquired are known, no question of applying any presumption would arise."
For the same preposition, reliance was also placed upon the decisions of 87 LAW WEEKLY 542 Lakshmi Ammal v. Meenakshi Ammal and others; AIR 1954 SC 379 Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and others; 1975(2) MLJ 73 C.K.Krishnan Vs. G.K.Shanmugham and others; and 1975(2) MLJ 184 Kandaswami Chettiar and others vs. Gopal Chettiar and others.
22. In 2005(1) LW 343 R.Deivanai Ammal (Died) & another v. G.Meenakshi Ammal and others, the Division bench of this Court held as under:-
13. ..... Under the Hindu Law it is only when a person alleging that the property is ancestral property proves that there was a nucleus by means of which other property may have been acquired, that the burden is shifted on the party alleging self-acquisitions to prove that the property was acquired without any aid from the family estate. In other words, the mere existence of a nucleus however small or insignificant is not enough. It should be shown to be of such a character as could reasonably be expected to lead to the acquisition of the property alleged to be part of the joint family property. Where the doctrine of blending is invoked against a person having income at his disposal and acquiring property, the reasonable presumption to make is that he had the income at his absolute disposal unless there is evidence to the contrary. ...
...
15. ..... In order to give rise to the presumption, the nucleus should be such that with its help the property claimed to be joint could have been acquired. A family house in the occupation of the members and yielding no income could not be nucleus out of which acquisitions could be made even though it might be of considerable value"
23. In (2011) 9 SCC 451 Marabasappa (Dead) by L.Rs and others Vs. Ningappa (dead) by L.Rs and others, the Supreme Court held as under:
"25. This Court has time and again held that there is no presumption of joint family property, and there must be some strong evidence in favour of the same. In Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade, (2007) 1 SCC 521, after examining the decisions of this Court, it was held: (SCC p.532, para 17) "17. Therefore, on survey of the aforesaid decisions that emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence."
24. As discussed earlier, it is clearly brought out in evidence that the family had a nucleus 9 acres of ancestral property and family had surplus income. Defendant No.3 father was also doing contract work apart from cultivating the leasehold lands and also salt pans. When the appellant alleges that item Nos.8 to 11 are his self acquired properties, in the light of categoric evidence adduced by the plaintiff and defendants 2 and 3, it is for the appellant to adduce satisfactory evidence that the Gas Agency is his separate business and that item Nos.8 and 9 were acquired with his own funds and not with the help of family funds.
25. As pointed out earlier, in 1984, appellant was a Secondary Grade Teacher getting around Rs.450/- per month. Apart from his meagre salary, he had no independent savings to start his own business. Even though in his evidence he has stated that he borrowed money from Chakrapani Chettiar, his evidence is contrary to the pleading in his written statement, wherein, he alleged that he sold the jewels of his wife to raise the funds.
26. The legal principle is that when sufficient nucleus is established from which property might have been acquired, presumption is to be raised that the other properties were acquired out of that nucleus. In (2003) 10 SCC 310 D.S.Lakshmaiah and another Vs. L.Balasubramanyam and another, the Supreme court has held as under:
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so assertion proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
27. In the case on hand, not only the family had nucleus, but the family owned about 9 acres of ancestral properties, capable of yielding surplus income. Apart from the ancestral property, the family was also cultivating lands taken on lease. Only because family had surplus, the 3rd defendant was able to educate both the 2nd defendant as well as the 1st defendant. In our considered view, the family owned properties yielding surplus income capable of enabling acquisitions. It is not a just sporadic or just a one time contribution of the amount. As elaborated earlier, 3rd defendant has contributed a sum of Rs.35,000/-. That apart, for availing loan from IOB, Tambaram, ancestral family properties in Cheyyur were offered as security and that the 3rd defendant stood as guarantor. The plaintiff was with the first defendant and assisting the first defendant in the Gas Agency. The contribution of money and offering of ancestral properties as securities, father standing as guarantor and service of the plaintiff are very conspicuous and that leads to the irresistible presumption that the Gas Agency is the joint family concern.
28. Subsequent conduct of the parties also shows that the Gas Agency has been treated as a joint family business. In his evidence, P.W.1 - plaintiff and defendants 2 and 3 have clearly stated that in 1984, allied business in sale of gas stoves in the name of Gowri Om Appliances was started in the name of plaintiff. Both Gas Agency and stove sales were administered and run from the same place. The following things are to be kept in view:
1.Gowri. in whose name the selling of gas stoves was started, is the wife of elder brother -2nd defendant;
2.Business of selling gas stoves was started in the name of plaintiff; and
3.The said business was started in the same place, where the site was taken on lease for godown of LPG Indane Distributorship.
The above three circumstances would clearly show that the family started allied business involving all the family members.
29. Hotel Business:- In the name of plaintiff, a hotel business was started in Tambaram under the name and style of 'Prakash Bhavan' in the leased premises and plaintiff was placed in-charge of the said hotel business. D.W.1 - 1st defendant admits that having entrusted the hotel business to the plaintiff, it is pertinent to note that Prakash, in whose name the hotel was started, is the son of elder brother - 2nd defendant. That a hotel business was started in the name of son of the 2nd defendant would again show that the said hotel business was also a joint family business. In Ex.A.9 letter (dated 30.9.1988) addressed to the plaintiff, the 1st defendant had issued certain instructions regarding the hotel and further asking the plaintiff to write accounts of the hotel and also issuing other instructions regarding the property purchased in the name of plaintiff in Mylapore. In the said Ex.A.9 letter, he had also asked the plaintiff to come to the gas agency asking him to inform the elder brother and father about any mistakes in gas agency. The said letter dated 30.9.1988 reads as under:
VERNACULAR (TAMIL) PORTION DELETED The tenor of Ex.A.9 letter would clearly show that Gas Agency, Hotel and other business were treated as the joint family business.
30.Property in Mudichoor Road suit property Item No.8:-
Insofar as item No.8 Mudichoor property, case of Plaintiff is that out of the income from the gas agency and sale of Gas Stoves Business and also from the agricultural income, an extent of six grounds in Mudichoor road, Tambaram was purchased in the name of 1st Defendant for the joint family. In item No.8, for gas business, godown was constructed in an extent of three grounds. Out of the remaining extent, commercial apartments were constructed on two grounds. Two shops were rented out and the remaining portion is used for the office of gas agency. Grievance of Plaintiff/PW1 and the 3rd Defendant/DW2 is that 1st Defendant sold one ground to Chakrapani Reddiar for a sum of Rs.1,50,000/- and 1st defendant is bound to account for the proceeds therefrom. Neither parties have filed the sale deed for Item No.8 - the purchase of Mudichoor property. But in his evidence, DW1 stated that he had mortgaged item No.8 and availed loan of Rs.75,000/- from Indian Overseas Bank, Tambaram for construction of godown and shops. Dws.2 and 3 consistently stated that item No.8 is the joint family property.
31. To substantiate the plea that the suit properties Item Nos.8 to 11 are the joint family properties, plaintiff, defendants 2 and 3 mainly rely upon Ex.A8 agreement under which the plaintiff admitted joint family nature of the business in gas agency and further agreeing to give 30% share in the profits. Ex.A8 was executed by the first defendant and attested by his wife Navaneetham and P.W.2 Francis. The relevant recitals in Ex.A8 reads as under:
VERNACULAR (TAMIL) PORTION DELETED
32. Ex.A8 stamp paper was purchased in the name of first defendant. P.W.2 Francis had also spoken about the execution of Ex.A8 and that the first defendant had signed in the same. By the conduct of the first defendant in executing Ex.A8 and agreeing to give 30% share in the profits, the first defendant is estopped from denying the plaintiff's right and share in the gas agency. As pointed out by the Trial Court, under Ex.A8, the first defendant categorically admitted that the plaintiff also has share in the gas agency and agreed to give 30% share in the profits.
33. A feeble attempt was made by the first defendant stating that the name of his wife is Ambika and that she has not signed in Ex.A8. By perusal of Ex.A8, it is seen that the stamp paper was purchased in the name of the first defendant. D.W.1 admits that P.W.2 Francis is their family friend and that he has no enmity with D.W.1. When P.W.2 had clearly spoken about the execution of Ex.A8, the evidence of D.W.1, denying the signature of his wife as attesting witness, does not merit acceptance.
34. By his own conduct and also by his letters, the first defendant had admitted that the properties are enjoyed in common as the joint family properties and that in Ex.B13 - letter, he has asked the elder brother/second defendant to take the gas agency and other properties and asking the elder brother to allot share to others. Expressing his gratitude for all the support of the second defendant in Ex.B13 letter (dated 4.4.1993) addressed to the second defendant, the first defendant stated as under:
VERNACULAR (TAMIL) PORTION DELETED
35.The tenor of Ex.B13 letter would categorically show that the suit properties Item Nos.8 to 11 were purchased from out of the income derived from the ancestral properties and also out of joint exertion of all the family members and that the properties were treated as joint family properties. The contents of Ex.B13 letter would go a long way substantiating the case of the plaintiff and defendants 2 and 3. Having accepted the share of the elder brother and other family members, the first defendant is estopped from denying the joint family nature of the suit properties Item Nos.8 to 11.
36. In the case of a Hindu family, there is a strong presumption of jointness. Suit properties Items 8 to 11 are owned collectively by the plaintiff and defendants 1 to 3. Upon consideration of oral and documentary evidence, the Trial Court rightly held that suit properties in Item Nos.8 to 11 were purchased from out of income of the ancestral properties and by the joint exertion. Even though Item No.8 was purchased in the name of the first defendant and subsequently commercial building was constructed by availing loan from the bank in the name of the first defendant, the same has been purchased and constructed only from out of the income of the gas agency. Under such circumstances and also in view of Exs.A8 and B13, the Trial Court rightly held that all the items of suit properties are joint family properties and that the plaintiff is entitled to 1/4th share. The conclusion of the Trial Court is based on evidence and we do not find any reason warranting interference with the judgment.
37. In the result, the judgment and decree of the Trial Court in O.S.No.504 of 2004 (dated 31.03.2006) on the file of Additional District Judge Fast Track Court- I, Chingleput is confirmed and this appeal is dismissed. No costs.
usk Copy to:
Additional District Judge Fast Track Court-1, Chingleput