S.Elangovan vs S.Sembian on 23 April, 2010

[Cites 1, Cited by 0]

Madras High Court

S.Elangovan vs S.Sembian on 23 April, 2010

This appeal has been preferred against the Judgment and decree in C.S.No.707 of 1994 dated 21.11.1997. The first defendant is the appellant. The suit is for partition and the suit schedule property is the land and building in plot No.31, R.S.No.4 part, Perikudai village, bearing No.31, 'B' block, 12th street, Anna Nagar East, Madras 600 102, measuring an extent of one ground and 0875 sq. ft. For the sake of convenience the parties shall be referred to as described in the suit.

2. Suit Prayer:

For a Judgment and decree against the defendants granting a preliminary decree of partition of the suit property and allot 5/12 share to the plaintiff, to direct the first defendant to pay a sum of Rs.30,000/- as past mesne profits and to pay the future mesne profit as determined by Court and the cost of the suit.

3. Relationship of parties (Not disputed):-

Plaintiff and defendants 1 & 2 are the sons of late Thiru. R.Sowrirajan and the third defendant is his daughter. During the pendency of the above appeal, the plaintiff died and his wife Tmt.Leelavathy, son Mr.S.Azhagarasan and minor S.Karthik were brought on record as legal representatives. As S.Azhagarasan died pending appeal, a memo was filed and Tmt.Leelavathy and brother S.Karthick have been recorded as legal heirs for the deceased third respondent.

4. Case of the Plaintiff:-

That the plaintiff and the defendants are the children of the late Thiru.R.Sowrirajan and the plaintiff came to Madras during 1960 and the other family members came to Madras during 1963. The plaintiff was an Assistant, under a building contractor from May 1963 to October 1966 and later, he joined the Tamil Nadu Civil Supplies Department as Clerk on 17.11.1966 and worked upto 19.02.1970, and thereafter, he joined as clerk in Tamil Nadu Co-operative State Land Development Bank, Madras on 20.02.1970 and was working as Superintendent till the filing of the suit. The plaintiff's wife Tmt.P.Leelavathy was working as a teacher, since 1972, when the plaintiff's father Thiru. R.Sowrirajan and the other members of the family came to Madras. It is stated that Thiru.R.Sowrirajan was a LIC agent and was earning only a meager income, considerable portion of the earnings of the plaintiff's and his wife were utilized for the joint family expenditure and they shared the family financial burden. During 1963, the first defendant secured an employment and the family expenditure was shared by the plaintiff, his wife and first defendant with Thiru.R.Sowrirajan and were all living as joint family. The plaintiff, defendants 1 & 2, Thiru.R.Sowrirajan and his wife were living as a joint family from 1963 to 1970 at Shenoy Nagar, Madras from 1970 to 1973 at Kilpauk, from 1973 to 1976 at Triplicane, from 1976 to 1977 at Mylapore, and from July 1977 to May 1981 at Teynampet. It is further submitted that on 06.01.1966, the Tamil Nadu Housing Board allotted the suit property to Mr.R.Sowrirajan and he paid the cost of the plot by installments from and out of the earnings and savings of the joint family income. Mr.R.Sowrirajan constructed a building upto roof level, which was also from the joint family income and could not complete, further construction as he had become old and was not getting regular income and was unable to secure housing loan and therefore Thiru.R.Sowrirajan decided to obtain loan in the name of the first defendant, the eldest son. It is the further case of the plaintiff that it was decided to avail a housing loan in the name of the first defendant, this decision was taken with the specific understanding that the house would be constructed after obtaining loan in the name of first defendant, the constructed house to be let out and the rent should be used to discharge the loan and the remaining portion of the rent to be utilized for joint family expenses. Therefore, it is contended that since major portion of the cost of construction was paid from and out of the joint family income, the property should be treated as a joint family property. Based on such understanding, Thiru.R.Sowrirajan and other family members executed necessary documents to enable housing board to transfer the plot in the name of the first defendant and accordingly the same was transferred on 25.11.1970. At the time of transfer the second defendant was a minor. That the first defendant during 1973 availed loan from Madras Cooperative Housing Society and the plaintiff stood as surety and the plaintiff and other members gave no objection of the loan to be taken by the first defendant and that Thiru.R.Sowrirajan contributed the balance amount for construction and the first defendant did not contribute any amount for the construction of the house. After the completion of the construction during 1974, the house was let out and portion of the rent realised was collected by the plaintiff and first defendant, was utilized to discharge the loan and the balance amount was spent by Thiru.R.Sowrirajan for running the joint family till August 1977. During 1977, the plaintiff purchased a house at Teynampet from and out of his earnings and by availing loan from bank and all the family members, namely the first and second defendants, Thiru.R.Sowrirajan and his wife lived with plaintiff in order to facilitate discharge of the loan on the schedule mentioned property. It is further stated that during September 1977, Thiru.R.Sowrirajan was hospitalised and first defendant stopped paying the portion of the rent to Thiru.R.Sowrirajan to run the family, disputes arose and the first defendant left the plaintiff's house during December 1981 and lived separately at Vannia Teynampet. That the first defendant failed and neglected and evaded to furnish account and during May 1985, a family meeting was arranged to settle the dispute relating to the suit property. No amicable solution was arrived, however, the plaintiff did not resort to any Court proceedings. Thiru.R.Sowrirajan died on 14.01.1992 and thereafter the plaintiff demanded his share in the suit property and a legal notice was issued on 27.10.1993, calling upon the first defendant to amicably settle the issue. The first defendant by letter dated 11.01.1994 disputed the plaintiff's claim. As per the averments in the plaint, the suit property was purchased and building was constructed from and out of joint family income of the plaintiff, the first defendant and Thiru.R.Sowrirajan and each are entitled to 1/3rd share and after death of Thiru.R.Sowrirajan his 1/3rd share devolved on them as legal heirs and therefore the plaintiff and first defendant are each entitled to 5/12th share and the second and third defendants are each entitled to 1/12th share. In the alternative if the entire property is treated as that of the property of Thiru.R.Sowrirajan all the legal heirs are entitled to 1/4th share each. With the above pleadings, the plaintiff laid the suit for partition.

5. Case of the First Defendant (Appellant):-

Thiru.R.Sowrirajan, the father of the plaintiff and defendants was born at Thirukkannapuram at Thanjavur District and he had no fixed employment at any point of time and appears to have taken up a career as an agent of LIC and stationed himself permanently at Pattukkottai, he had a large family of four children to bring up besides his wife and his income was practically next to nothing. Very often the first defendant had to resort to financial help from his paternal uncle for the continuation of his studies. On 07.11.1963, the first defendant secured a job in the Madras State Electricity Board and he later switched over to the Madras City Municipal Corporation in July 1964 as Overseer and the plaintiff stayed with the first defendant looking for employment. As Thiru. R.Sowrirajan was not able to run his family at Pakkukkottai, he decided to move to Madras in or about May 1964 and at that time, the first defendant was the only earning member of the family, the income from the LIC agency was not appreciable and the plaintiff was also unemployed and it was during 1966, the plaintiff got temporary employment on nominal wages. The first defendant decided to make an application for allotment of house site in the scheme of the Housing Board and due to sentimental reason, the application was made in the name of their father Thiru.R.Sowrirajan in or about 1965. The Housing Board on 18.11.1965, allotted plot No.404 at a tentative cost of Rs.7,500/- and initial deposit of Rs.1,500/- was required to be made and the balance in ten half yearly installments of Rs.600/- besides interest at 7% per annum on the outstanding balance price. On 06.01.1966, a different plot bearing plot No.81, (the suit property) was allotted at a tentative cost of Rs.6,822 in lieu of plot No.404. The initial deposit to be paid was Rs.1,372.92ps and half yearly installment of Rs.545/- with 7 % interest on outstanding amount. It is the case of the first defendant, though the initial allotment was made in the name of their father, the first defendant alone was having a certain and fixed income and made the payment and their father had no means to make payment and though the allotment stood in the name of Thiru.R.Sowrirajan, it was only the first defendant, who paid the initial advance and subsequent installments, with great difficulty. The first defendant got married in January 1970, the plaintiff and the third defendant were married during July 1970. The plaintiff married the sister of the third defendant's husband. During that point of time, the first defendant monthly pay was Rs.430/- and the plaintiff had just joined as Lower Division Clerk in the Cooperative Bank and the first defendant helped the plaintiff with the caution deposit to secure the employment. After the marriage of the plaintiff and defendants their father wanted to make the records clear and transferred the Lease-cum-Sale agreement in the name of the first defendant and based on such request the Housing Board made the required allotment and the first defendant executed the Lease-cum-Sale agreement on 21.07.1972. It is the case of the first defendant that the intial payment, installments and other incidental expenses towards the suit property was paid by him alone. The first defendant applied to the Corporation of Madras on 17.03.1971 for sanction of a building plan and he also applied for a loan for construction with the Cooperative Housing Mortgage Society and the Society sanctioned a sum of Rs.20,000/- as loan to the first defendant and at that time, the defendants father Thiru. R.Sowrirajan, the plaintiff and the second defendant, who was by then a major having completed 18 years of age, had given in writing to the House Mortgage Society, that the plot of land belonged to the first defendant and they have no claim what so ever on the suit property. The plaintiff joined as surety in the Mortgage Deed dated 01.03.1973. After the construction of the house, it was assessed by the Corporation in the name of the first defendant and property tax and other charges were remitted by the first defendant and Patta was issued in the name of the first defendant and the property absolutely belonged to him. In paragraph 40 of the written statement, the first defendant has narrated about the properties, ( namely house properties & vehicles), which were acquired by the plaintiff between 1972 to 1978. Ultimately, the first defendant would state that the suit property is wholly owned by the first defendant and neither the plaintiff nor the other defendants or the father Thiru.R.Sowrirajan could have any claim thereto and the question of sharing the suit property does not arise and the false claim of the plaintiff has to be rejected.

6. Case of the Second Defendant :-

The second defendant has supported the case of the plaintiff and would submit that the first defendant cannot claim any exclusive right over the suit property and the building thereon. That the loan was obtained in the name of the first defendant and the balance amount was contributed by their father Thiru.R.Sowrirajan and once it is a joint family property, their father cannot give consent on behalf of the second defendant as he was a minor at that time and consequently, the transfer in the name of the first defendant by their father is not valid. The second defendant would thus state that the property is a joint family property and the second defendant, plaintiff and first defendant and the third defendant are each entitled to 1/16th share in the 1/4th share left by their father and thus the second defendant is entitled to 5/16th share.

7. Case of the Third Defendant:-

The third defendant would state that both the plaintiff and his wife earnings were utilised by the joint family and they shared the family financial burden. The third defendant got married on 15.07.1970, and ever since, she was living with her husband. It is further stated that their father Thiru.R.Sowrirajan paid the cost of the plot by installments from and out of the earnings and savings of the joint family income, their father constructed a building upto roof level from and out of the joint family income and since he could not get loan in his own name, father decided to obtain loan in the name of the first defendant. That the cost of construction were mainly paid from and out of the joint family income. During 1973, the first defendant took loan for construction of the suit property, all the family members gave no objection for the loan taken by the first defendant. The first defendant cannot claim exclusive right over the suit property. Ultimately, the third defendant would state that though she is entitled to share, she is not making, any claim in the suit property.

8. Based on the above facts, the parties went for Trial. The plaintiff examined himself as PW-1 and six other witnesses as PW-2 to PW-7. The plaintiff marked 18 documents, Exhibits A1 to A18. The first defendant examined himself as DW-1 and examined DW-2 to DW-7 and marked 57 documents, Exhibits B1 to B57.

9. Issues framed by Trial Court:-

The Trial Court based on the above pleadings framed the following issues:-

i)Whether the plaintiff is entitled to preliminary decree for partition of his 5/12th share in the plaint schedule property?

ii)Whether the plaintiff is entitled to Rs.30,000/- towards past mesne profits?

iii)Whether the second defendant is entitled to 5/16th share in the suit property.

iv)What are the shares of the parties?

v)To what relief if any the plaintiff is entitled?

Additional Issues:-

1)Whether the plaintiff has cause of action to file the suit.

2)Whether the first defendant is the exclusive owner of the suit property.

10. Decision of the Trial Court:-

i)Issue No.1 & 2 - The plaintiff is entitled to 5/16th share in the suit plot only and he is not entitled to claim any share in the superstructure and plaintiff is not entitled to mesne profits.

ii)Issue No.3 & 4 - The plaintiff is entitled to 5/16th share in the suit plot, second defendant entitled to 5/16th share in the suit plot. The first defendant is entitled to 5/16th and the third defendant is entitled to 1/16th.

iii)Additional Issues 1 & 2:- That the plaintiff being one of the co-sharers in respect of the plot, he has cause of action to file the suit, the first defendant is the exclusive owner of the superstructure and he is not the exclusive owner of the plot.

iv)Issue No.5 - Preliminary decree for partition of plaintiff's 5/16th in the suit plot alone was granted and the suit in other aspects stood dismissed. Since, building has been constructed in the suit plot, the plaintiff is entitled to value of 5/16th share in respect of suit plot.

11. Reasons assigned by Trial Court on the relief granted/ decision taken:-

1) On issue Nos.1 & 2 - After discussing about the law relating to as to what is Hindu joint family, the Trial Court held that at the time of allotment of the plot, it was in the name of Thiru. R.Sowrirajan during the year 1966. The family was joint and out of the joint income first nine installments were paid by Thiru.R.Sowrirajan and there is no document on record to show that the installments 1 to 9 were paid by the first defendant. After analyzing the oral evidence the Trial Court came to a conclusion that except the ipsidixit of the plaintiff, there is no evidence to show that the suit house was constructed out of the income from joint family nucleus.

2)On issue Nos. 3 & 4:- Plaintiff and defendants are children of Thriu.R.Sowrirajan, property was allotted in the name of Thiru.R.Sowrirajan, first nine installments were paid by him, the suit plot is to be construed as a joint family property and hence Thiru.R.Sowrirajan, plaintiff and defendants 1 &2 are entitled to 1/4th share each in the suit plot and after the death of Thiru.R.Sowrirajan, the third defendants is entitled to 1/4th share in the 1/4th share of Thiru.R.Sowrirajan that is 1/16th.

3)On additional Issues Nos.1 & 2:- Since the first defendant rejected the claim made by the plaintiff in the suit notice, as one of the co-sharers of the plot, the plaintiff has cause of action to file the suit. The first defendant has proved his exclusive ownership of superstructure based on evidence of DW-1 to DW-4 and Exhibits B-8 to B53 and therefore, the first defendant is the exclusive owner of the superstructure.

4)On issue No.5:- Preliminary decree for 5/16th share in the suit plot passed in favour of the plaintiff and in other respect, the suit was dismissed and since there is a building, the Trial Court held that the suit plot is to be assessed by an Advocate Commissioner, and the plaintiff is entitled to 5/16th share in respect of the suit plot.

12. The correctness of the Judgment and decree granted by the Trial Court is assailed in the present appeal by the first defendant and the plaintiff has also preferred a cross objection in C.O.No.37/2000, against the finding by the Trial Court in respect of the superstructure.

13. Grounds of challenge by the First Defendant/ Appellant:-

a) Under Hindu law, when a property stands in the name of member of a joint family, it is incumbent upon those asserting that it is a joint family property, to establish it and in the instant case, the plaintiff failed to prove that the property in question was acquired with the help of any family estate or from and out of a nucleus of ancestral property, more so when it is an admitted case that the family had no ancestral property and that the father of the parties had no income at all even to look after the necessities of the family.

b) Under Hindu Law mere living together as members of a family will not make them joint owners of the property acquired by each individual member and that there must have been a nucleus of ancestral property, which was utilized for the purpose of making subsequent acquisition or the members must have thrown their joint earnings into the common hotchpot with the intention of giving up their individual rights.

c) The property was acquired in the name of their father Thiru.R.Sowrirajan for sentimental reasons and the first defendant never had any intention to throw the property into the joint family and he always maintained the property separately as his individual property.

d) During the period of acquisition of the property no other member of the family except the first defendant/appellant had any income. The plaintiff was not sure of his case since upto the stage of suit notice, Exhibit A-9, plaintiff claimed share in the suit property as if property was purchased by father Thiru.R.Sowrirajan and that the construction of building upto roof level was carried out by him. However, in the plaint a stand was taken that the property was acquired with the help of joint family earnings, which according to the first defendant, the plaintiff could not prove.

e) In the absence of any evidence to show that the property was acquired from and out of joint family income or nucleus, the decree of the Trial Court is liable to be set aside.

f) The Trial Court having held that Exhibit A-12, which was a certificate produced by the plaintiff stating that he was employed under a contractor, cannot be given importance, since it is subsequent to the suit, ought not to have passed a preliminary decree.

g) In the absence of any documentary evidence to prove income of the plaintiff at the time of purchase of their suit plot in 1966, the Trial Court ought to have dismissed the suit.

h) The Trial Court erroneously shifted the burden on the first defendant to prove that the property was his exclusive property when according to law, the burden is on the plaintiff, who claims, it is the family property, to prove it.

i) The reason assigned by the Trial Court stating that the suit plot was transferred in the name of the first defendant, since Thiru.R.Sowrirajan could not pay the installment is an incorrect finding, since it was no body's case that it stood transferred for the said reason.

j) The plaintiff having been a signatory to Exhibit B-1 mortgage loan deed dated 01.03.1973 in the capacity of the surety is not entitled to claim any right.

k) That the Trial Court failed to properly appreciate the scope and tenet of Exhibit B2, which was a letter executed by the plaintiff, second defendant and Thiru.R.Sowrirajan confirming the exclusive right of the first defendant.

l) In the absence of any evidence to show that the installments 1 to 9 were paid out of the income of joint family nucleus, the Trial court erred in granting a preliminary decree for the suit plot in favour of the plaintiff.

m) That the Trial Court misconstrued and wrongly appreciated the oral and documentary evidence on the side of the plaintiff and failed to give credence to the oral and documentary evidence produced by the first defendant and thus committed an error of law in granting a preliminary decree in respect of the suit plot.

14. Grounds raised by Cross Objector :-

i)The Trial Court came to a wrong conclusion that there is no evidence on record to show that the suit house was constructed out of the income from joint family nucleus and that the Trial Court ought to have noted that the loan, which was taken by the first defendant was repaid from the joint family property by letting out the property and the suit property was purchased and the house was constructed out of joint exertion.

ii)That in case of joint exertion, there is no need to have any joint family nucleus.

iii)The Trial Court erred in totally relying on the evidence of DW-2 and DW-4.

iv)The Trial Court failed to note that under Exhibit A-2, the property standing in the name of the second defendant was sold and the income derived from the sale was used for construction of the house.

v)Even after the plaintiff filed the suit demanding partition, the first defendant enjoyed the income from the property in exclusion of other sharers and therefore, the plaintiff is also entitled to a share in the suit property.

15. Heard, Mr.M.Venkatachalapathy, Senior Advocate for the first defendant/Appellant assisted by Mr.S.Chidambaranathan and Mr.M.Sri Ram, Mr.K.V.Ananthakrishnan for the Plaintiff/Cross Objector and Mr.G.Rajan for the second defendant.

16. On the above facts and the contentions raised, the following questions arise for consideration in this appeal:-

(a) On whom does the burden lie to prove that the suit property was purchased out of joint exertion and the joint family income?

(b) Whether the suit property is a joint family property or a property which was purchased out of the joint exertion and joint family income?

(c) Whether the Trial Court was right in decreeing the suit in so far as the suit plot having denied the relief in respect of the superstructure?

(d) To what relief the parties are entitled to ?

17. Discussion:-

Before venturing into factual thicket, it is necessary to examine the law on the subject. The case of the plaintiff is that the suit property came to be purchased and the superstructure was constructed by joint exertion and joint family income and therefore, it is a joint family property and the plaintiff is entitled to his share. The contention of the first defendant is that it is a separate property purchased by the first defendant and therefore, the question of granting a share to the plaintiff and other defendants does not arise. In the following decisions the aspect as to whether a property is a joint family property or a self acquisition of a member of the family, the onus of proof and when the onus shifts have been analysed and set out in clear terms. In the cases of 1937 ILR Madras 1012, Venkataramayya Vs. Seshamma, 1938 ILR Madras 696, Vythianatha Vs.Varadaraja, AIR (32) 1945 Madras 62 Merla Janakiamma Vs. Inuganti Venkata Raja Gopala Chinna Roa, 1947 (2) MLJ 138, Randhi Appalswami Vs. Randhi Suryanarayanamurti and others, AIR 1954 SC 379, Srinivas Krishna Rao Kango Vs. Narayan Devji Kango and others, referred to by the learned senior counsel for the appellant the position is made clear. The principle that could be culled out from all these Judgments are that, a party alleging that property held by an individual member of a joint Hindu family is family property must show that the family was possessed of some property with the aid of which the property in question could have been acquired. It is only after that is shown that the onus shifts to the party alleging self acquisition to affirmatively make out that the property was acquired without any aid from the family estate. Mere existence of a nucleus is not enough and it should be shown that the nucleus of such value as could have reasonably formed the basis of the acquisition of the property in question. If this is shown and only then the onus shifts to the party alleging self acquisition. It is natural for a member of a joint Hindu family to keep his self acquired property from the joint family property meeting the expenses of joint family from the joint family property and it ought not to be presumed that separate earnings of the member were spent on the maintenance of the joint family that the income from joint family was utilised in whole or in part towards acquisition made by him, when the father of a joint family acquired certain property in his own name and mortgage deed describing it as if self acquired property, onus is on the son claiming an interest in the hypothece as joint family property to show that the family was possessed of some property with the aid of which the property in question was acquired before the mortgagee could be called upon to prove that it was acquired by father out of his own funds and without aid of the family estate. Mere proof of existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon any one asserting that any item of the property is joint to establish the fact. But, where it is established that the family possessed some joint family property, which from its value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. While, it is not unusual for a family to hold properties for generation without a title deed an acquisition by a member would ordinarily be evidenced by a deed. When, therefore a property is found to have been in the possession of the family from time in-memorial, it is not unreasonable to presume that it is ancestral and throw the burden to party pleading self acquisition to establish it. It is only after the possession of an adequate nucleus is shown that the onus shifts on to the persons who claims the property as self acquisition to prove that the property was acquired without any aid from the family estate. In order to raise the presumption that the property acquired is acquired as joint family property, it is necessary to hold that the property must have been acquired by the joint labour of the members of the family. If members of the joint family, who are joint in status who either carry on business or by their joint efforts, earn and acquired property with such income, even without the aid of any ancestral nucleus, the presumption is that the property so acquired by them is joint family property in which the sons of the acquirers would get right by birth. But this presumption can be rebutted if it is proved that the acquirers intended to own the property as co-owners between themselves, in which case the property would be joint property as distinguished from joint family property and the presumption is in favour of regarding the property as joint family property. With these legal principles in mind we shall proceed to examine the facts in issue.

18. It is the claim of the plaintiff right from the beginning that the suit property is a joint family property in as much as the purchase of the plot from the Housing Board as well as the construction of the house was made from and out of the income generated jointly by the father, the plaintiff, the first defendant and a small portion of contribution made by the second defendant. It is also not the case of the plaintiff that the source of fund was not from the joint family nucleus. It is the specific case of the plaintiff that it was not from the exclusive funds of the first defendant. As seen from the judgment referred to above, the burden is on the party who pleads that the suit property stands in the name of an individual as a family property and that the same was acquired from and out of the joint efforts of every member of the joint family. When that be the case of the plaintiff as claimed by him in the plaint as well as the nature of evidence let in before the trial court, we have no hesitation in holding that the onus was heavily upon the plaintiff to prove that the suit property was purchased out of joint exertion and joint family income. Accordingly, we answer question No.(a) to the above effect.

19. We therefore proceed to analyze as to how far the plaintiff has discharged his onus. The case of the plaintiff is that he came to Chennai in 1960 and the other family members came to Chennai during 1963 and the plaintiff was an assistant to a building contractor during the period from May 1963 to October 1966 and thereafter he joined the Civil Supplies Department as clerk. During 1963, the first defendant secured a job and the plaintiff along with the first defendant, the plaintiff's wife and his father Thiru.R.Sowrirajan shared the joint family expenditure, all were living as a joint family at Shenoy nagar, all the members were contributing for the family expenses, during the period 1963 to 1970. Subsequently, they resided at Kilpauk for three years between 1970 to 1973 and all were contributing for the family expenses and subsequently shifted to Triplicane in 1973 and lived there till 1976, between 1976 to 1977 they were all living as a joint family in Mylapore and from 1977 to May 1981 they were living as a joint family in Teynampet and during the entire period all the members were contributing for the family expenses. The Tamil Nadu Housing Board by an order of allotment dated 06.01.1996, allotted the suit property to the father, Mr.R.Sowrirajan, and he paid the cost of the plot by installments from and out of the earnings and savings of the joint family income. As there was no funds for construction of a superstructure their father, Mr.R.Sowrirajan, decided to avail a loan in the name of the first defendant, who was the eldest son. The understanding being that after construction the house would be rented out and the rental income to be used for discharging the housing loan.

20. That in view of such understanding the plot was transferred in the name of the first defendant on 25.11.1970. During 1970, the first defendant and the second defendant were married and in 1973, the first defendant has availed a housing loan and plaintiff was surety to the said loan and the first defendant did not exclusively contribute any amount for the construction of the house. The construction of the house was over in 1994 and the loan was repaid by rent received by house and income of all members of the family was spent by Mr.R.Sowrirajan for running the family till August 1977. On 08.04.1974, the property standing in the name of the second defendant was sold and he was not a earning member at that point of time. During 1977, plaintiff purchased a house at Teynampet out of his earning and by availing a loan from bank and family members consisting of the plaintiff, the first defendant their parents lived together at Teynampet to discharge the loan liability on the suit property. When their father was hospitalized during September 1977, the first defendant stopped paying the portion of rent and he left the residence and lived separately in a house at Teynampet from December 1981 onwards. On 18.09.1992, the plaintiff's mother died and on 14.01.1992, the father died and on 27.10.1993, the suit notice was issued, claiming the share in the property. The first defendant by reply dated 11.01.1994 disputed the claim of the plaintiff, which resulted in the filing of the suit before this Court in C.S.No.707/1994, which was subsequently transferred to the file of the V Additional City Civil Judge, and renumbered as O.S.No.2187/1996 and the relief of partition and allotment of 5/12th share and mesne profits was claimed, marked Exhibits A1 to A18 and examined himself as PW-1 and six other witnesses as PW-2 to PW-7.

21. The relationship of the parties is not in dispute PW-1 would contend that the suit property as well as the superstructure was put by the income derived by the joint family out of joint exertion and would contend that his father was at Pattukottai and the fact that the family was living as a joint family from 1936 onwards at various places in Chennai till December 1981, when the first defendant took up a separate house at Teynampet, would all amply establish that the family was joint and further stated that the father Thiru.R.Sowrirajan was taking care of the house hold expenses, which were met by the income of the plaintiff and his wife and the first defendant and when the suit plot was allotted by the Housing Board, the amount payable to the board was paid by his father from the income derived by the joint family and since they did not have sufficient funds for putting up construction and as the plaintiff's father was not eligible for housing loan due to his age, it was decided to transfer the property in the name of the first defendant and such transfer was based on the understanding that the first defendant would be acting as a trustee and after the house was constructed on the property, the house could be let out and the rental income could be utilised for repaying the loan. In the evidence of PW-1, it is further stated that the construction on the property was also made out of the joint family income and since the income was not sufficient to meet the cost of construction, it could not be proceeded after particular stage. During the course of cross examination the plaintiff would state that he has not stated about his income during 1966 and 1970 in the pleading and he has not mentioned about the income of his father and that he does not remember the cost of the plot, but would state that even after the allotment was transferred in favour of the first defendant both he and first defendant had remitted the installments, but would state that his father gave the money for remitting the installments and that the installments were not paid out of his salary. One other fact which has been stated by PW-1 is that the father did not have any ancestral property and his father did not have a steady income and did not do any business activities.

22. Per contra, the case of the first defendant is that there is no ancestral property, their father did not have a fixed income and during the period from 1963 to 1972, the appellant was the only earning member and even though the plaintiff claimed, he was employed during the said period, there is no oral or documentary evidence to sustain such plea and the plea that the family was run out of the joint income of the plaintiff and his wife and the first defendant is false. The case as pleaded by the first defendant while examining himself as DW-1 is that he wanted to buy a plot through the Housing Board and he made an application in the name of his father that the installments were paid by him, the security deposit to the Electricity Board was paid by him and these amounts were remitted in the name of the father and when the 10th installment was due, the allotment stood transferred in favour of the first defendant and it is he alone who has paid the installments and the fact that the plaintiff stood as guarantor for the loan transaction and also having executed Exhibit B-2 stating that the plaintiff their father and the first defendant have no claim whatsoever over the suit plot and that the plot belongs to the first defendant would amply establish that the case of the plaintiff is absolutely vexatious. Further, the receipts and documents have been issued by the Housing Board in the name of the first defendant and the plaintiff has failed to produce any substantial peace of documentary evidence to prove his claim that the property in question was purchased from and out of the joint family income and out of joint exertion.

23. During the course of cross examination the Plaintiff, as PW1 has admitted his father did not inherit any ancestral property and his father did not do any business and did not have any permanent income. It has been further stated that his father was a Insurance Agent and he had no other permanent employment and he does not remember whether any communication was received from the Insurance Company. As regards his employment, the plaintiff would state that he does not remember the salary earned by him between 1966 and 1970 and he has not stated anything in the Plaint about his father's income and stated that the application for allotment of house was made in the name of his brother, he does not remember the total cost of the plot allotted and would state that the monthly installments were paid by them and whatever the amounts payable was fully remitted by 1984 and during 1971 the allotment was transferred in the name of the 1st Defendant and that he was also paying the installments but does not remember how much amount has been remitted and would state that the installments were not paid from and out of his salary. As regards exhibit B2, the letter dated 9.9.1972 signed by Thiru.R.Sowrirajan, the Plaintiff and the 2nd Defendant to the housing society, the Plaintiff would state that unless they had furnished such letter the society would not extend the loan. The Plaintiff further states that he had purchased two immovable properties and scooter in his name from his own income. The house at Eldams Road was purchase by him during 1977 earlier during 1974 a plot was purchased at Virugambakkam. His monthly income during 1972 was Rs.1200/- and during 1977 it was Rs.1650/- and during 1977 it was Rs.7500/- and the properties were purchase by him by raising loan from the thrift society and raising loan from the Provident Fund Account. The Plaintiff would further state that he would give his salary to his parents and from his parents he would receive money for his expenses. The Plaintiff would further state that the 2nd Defendant got married during 1981 and till then they were all living together. Though the Plaintiff would state that his father was maintaining accounts regarding the Annanagar House he is not aware as to who was in possession of such records. It is the further assertion of the Plaintiff that only after discussing with all the family members it was agreed to transfer the allotment in favour of the 1st Defendant.

24. It is seen from Exhibit A1 that the Plaintiff was appointed as Clerk in the Tamilnadu Co-operative State Land Development Bank on a salary of Rs.130/-. Apart from the said document the Plaintiff has not produced any other documents to prove his income or establish that there was sufficient surplus on account of his earning which was entrusted to his father who in turn after meeting the family expenses had invested for the purchase of the plot at Annnagar. It is to be noted at this stage that it is the Plaintiff's admission that he had purchased a plot in Virugambakkam during 1974, a house in Eldams Road during 1977 apart from a scooter. It is the further admission that during 1972 the Plaintiff's income was Rs.1200/- per month, in 1974, Rs.1650/- and 1977 it was Rs.7500/-. These properties are said to be the self acquisition of the Plaintiff from and out of his own income. Though the theory that the suit plot was a joint property has been well stated by the Plaintiff in the pliant, there is no documentary proof to establish the contention of the Plaintiff. Even as per Exhibit A1 the income of the Plaintiff was Rs.130/- per month. In such circumstances the only reasonable conclusion which could be arrived at is that the Plaintiff has not been able to satisfactorily prove the theory that his income along with the income of the 1st Defendant and the earnings of their father were pooled together, and income derived out of the joint exertion, after meeting the family expenses, the residual amount was utilized for the purchase of the suit plot. The theory as propounded by the Plaintiff remains only as his contention not supported by valid documentary evidence or corroborated by the acceptable oral testimony. It is noteworthy to reiterate that the onus is on the plaintiff to show that the property standing in the name of the 1st Defendant is property purchased out of a joint family nucleus or on account of joint exertion and unless the same is proved with acceptable oral and documentary evidence, the onus does not shift on the 1st Defendant who claims the suit property to be his individual property. Exhibit A2 is a registration copy of a Sale Deed 08.04.1974 executed by the 2nd Defendant to one Srinivasan. According to the recital in the document the property in question is comprised in R.S.No.300/2, Andarkoil Village measuring an extent of 83 cents was sold by the 2nd Defendant after receiving the sale consideration of Rs.4000/-. Though such document has been produced the Plaintiff has not been able to establish by acceptable evidence that the sale consideration received was passed on and utilized for the purchase of the suit plot. Per contra the case of the 1st Defendant is that no such consideration was passed on and the sale came to be executed in favour of Srinivasan since monies were payable to him.

25. The Plaintiff rests his case on certain letters purported to have been written by his mother, Tmt.Ramamurthammal, which have been marked as Exhibit A3, A4, A11. The evidentiary value of such letters would be examined in the later part of this judgment. That apart the Plaintiff has marked Exhibit A5 which is a letter written by Thiru.R.Sowrirajan to the Plaintiff, Exhibit A6 a letter dated 24.9.1985 written by the Plaintiff to his uncles, Exhibit A8, a letter dated 22.5.1993 written by the Plaintiff to the 1st Defendant, exhibit A10 letter written by the 1st Defendant to the Plaintiff, exhibit A15 letter dated 27.7.1993 and exhibit A18, letter dated 26.8.1993 both written by the plaintiff to the 1st Defendant. Apart from these documents the other documents relied on by the Plaintiff are exhibits A12 a certificate issued by an Engineering Contractor dated 18.7.1997 stating that the Plaintiff was working an Assistant in a Contract business between May 1963 to October 1966. At this stage it would be relevant to note that the person who issued the certificate is one Thiru.Mallikeswaran, who was examined as PW4 and in his cross examination he would state that he constructed the house at Kodambakkam for Thiru.Kulandaivelu, Advocate and he knew the Plaintiff through Thiru.Kulandaivelu and he did not know were the Plaintiff was residing between 1963 and 1966 and he did not maintain any salary register and he does not know as to when he started the construction referred to in Exhibit A12 and when completed the same. That the certificate, Exhibit A12 was given by him at the request of the Plaintiff and he had mentioned the period of employment as 1963 to October 1966 as stated by the Plaintiff. Thus Exhibit A12 is of no assistance to the Plaintiff to prove his income during 1963 to 1966 consequentially the theory propounded by the Plaintiff that he also contributed from his income for the purchase of the suit plot appears to be a surmise. In this context it is to be noted that one Srinivasan was examined as PW2 who was stated to be a co-worker of the Plaintiff who deposed in the Chief Examination stating that he knew the Plaintiff and that he was working from 1966 to 1970 in the Civil Supplies Corporation and during 1960 the monthly salary of the Plaintiff was Rs.200/-. During the cross examination, PW2 would admit that he has not produced any document to prove his salary during 1966 which he had earned from the Civil Supplies Corporation and would state that he has deposed at the request of the Plaintiff.

26. One Thiru.A.Samikannu was examined as PW3, he is stated to be a family friend and in the cross examination PW3 would contend that Thiru.R.Sowrirajan had informed him that he is constructing the house at Annanagar and during his life time Thiru.R.Sowrirajan used to inform him about the family details. Thus on a careful consideration of the deposition of PW2 and PW3 it is to be noted that the same does not in any manner advance the case of the Plaintiff. Both these witnesses have deposed based upon information furnished either by the Plaintiff or his father.

27. Tmt.Sivakami, wife of Thiru.Ramakrishnan has been examined as PW5. Thiru.Ramakrishnan is the brother of the Plaintiff's mother and Tmt.Sivakami is the aunt of the Plaintiff and the Defendants 1 to 3. PW5 in her cross examination would admit that Thiru.R.Sowrirajan did not inherit any ancestral property and that during his life time he had sold the land at Andarkoil Village. As regards the purchase of the suit plot, PW5 would state that Thiru.R.Sowrirajan informed her that he had paid for the purchase of the plot. She would further state that Tmt.Ramamurthammal used to write down her thoughts in a note book. She pleaded ignorance as regards how much amount was spent for construction of Annanagar house and what was the rental income derived from the property. PW5 would state that during 1973 the 1st Defendant was employed in Chennai and only thereafter the Plaintiff secured a job in Chennai. Suggestion put to PW5 stating to the fact that the wife of the Plaintiff is her brother's daughter and out of affection she has given false evidence, was denied by PW5.

28. Tmt.Komalavalli was examined as PW6. She is the daughter of Tmt.Ramamurthammal's uncle, the 1st cousin of Tmt.Ramamurthammal. She would depose that all of them treated the house at Annanagar as the house of Thiru.R.Sowrirajan and in the cross examination she was not in a position to give details to support the case of the Plaintiff but denied the suggestion that she is not personally aware about the expenses incurred for the construction of the house at Annanagar.

29. Tmt.Saroja was examined as PW7 and she is the sister of PW6. In the cross examination PW6 has stated that she is not aware about the order of allotment of the Annanagar house and she has not seen the house at Annanagar and does not know the address. In our view the deposition of PW5 and PW6 is of no assistance to the Plaintiff, to establish his contention that the suit plot was purchased out of joint exertion and joint family income.

30. Much reliance has been placed on the letters written by the Plaintiff's mother marked as Exhibit A3, A4 and A11. These letters by itself cannot be conclusive proof of joint family status as pleaded by the Plaintiff. After having carefully gone through these Exhibits one thing which appears to have been the concern of Tmt.Ramamurthammal was regarding the 2nd Defendant and in these letters she has repeatedly mentioned that the interest of the 2nd Defendant should be taken care off. The tenor of the letters appears to be more of a testamentary disposition of certain movable assets possessed by Tmt.Ramamurthammal and nothing more. These letters cannot be used by the Plaintiff to prove that the property was a joint family property.

31. The first defendant examined himself as DW-1 and marked Exhibits B-1 to B-57, during the course of chief examination DW-1 has stated that he has purchased the plot from the Tamil Nadu Housing Board in his father's name and during November 1965, the plot was allotted and as requested by the first defendant, plot No.81(I) was allotted instead of plot No.404, and the cost of the plot was fixed at Rs.6822/92, and an advance amount of Rs.1372.92 was remitted by the first defendant, Rs.200, as advance to the electricity board was also remitted by the first defendant and such payment was made by the first defendant during January 1966 itself. The plot cost was to be remitted in 10 installments and one installment was for period of six months and that the first defendant had remitted the first installment and the electricity deposit in the name of their father. The monthly installment was Rs.545/- and interest at 7% for the remaining amount. That the first defendant remitted 9 installments in the name of their father and at the time of remittance of the 10th installment the plot was transferred in the name of the first defendant, pursuant to an application given marked as per Exhibit B-6. That the first defendant remitted the 10th installment in his name and the receipt is Exhibit B-7. When the suit plot was allotted, the plaintiff was not working and it is the first defendant who had paid the caution deposit of Rs.500/- to enable the plaintiff to secure job in the Land Development Bank. After 1970, they were staying in a place behind a printing press on Poonamalle High Court owned by their uncle, the plaintiff during 1970 left to Kancheepuram for co-operative training and returned to Chennai during the end of 1971 and when he left for the training, the plaintiff was married and his wife also accompanied him. That the first defendant alone took steps for the construction of the house on the suit plot and during 1971 applied for plan approval with the Madras Corporation and Exhibit B-8 is the approved plan. Exhibit B-9 is the receipt for securing loan application from the co-operative house credit society, the estimate prepared for construction is Exhibit B-10. Exhibit B-11 is the receipt for membership to the co-operative society, lease cum sale agreement was executed in favour of the first defendant by the Housing Board, Exhibit B-14 and the first defendant remitted a sum of Rs.2077.13/- as evidenced in Exhibit B-15 receipt. The first defendant has also marked the pass book issued by the credit society and the correspondence between the first defendant and society as Exhibits B-16 to B19. Rs.500/- was remitted by the first defendant for the fee for drainage as per Exhibit B-20. The receipts evidencing payment to the Housing Board marked as Exhibits B23 to B25, Exhibit B29 series, Ex.B34 series, Ex.B36, Ex.B40, Ex.B41 and Ex.B43. By relying upon all these receipts, the case of the first defendant is that it is the first defendant, who had paid the entire money for the purchase of the plot as well as the construction of the house. It is further stated that their father passed away during January 1992 and during his life time, the plaintiff did not claim any partition of the suit property and neither their father or their uncle demanded any accounts. In the cross examination, the first defendant had stated that he has not marked any document standing in the name of his father and he does not know as to whether the plaintiff was employed in Civil Supplies during 1966, but was in employment for three months and he does not know the nature of his employment. That the first defendant does not remember whether the second defendant went for employment from 24.01.1975 and that they were all living together as one family. The windows, doors and door frames were made at Andan Koil and sent by his uncle. Differences arose between the plaintiff and first defendant between April and June 1976 and the first defendant paid Rs.440./- as monthly rent for the Mylapore house. It is incorrect to state that between 1963 to 1966 the plaintiff had undertaken contract work and that he does not know about the plaintiff's employment between 1966 to 1970 in the Civil Supplies Corporation. The first defendant has admitted that in Exhibits A3, A4 and A11, the signature of their mother is found. During May 1988, their father came to Anna Nagar along with his things and in the next month the second defendant came. The first defendant would further state that the household expenses were met by him in common and the rental income from Anna Nagar house was used for household expenses and to repay the loan. The construction of the house went on till May 1975, The first defendant would further assert that it is he who purchased the suit plot in his father's name and the first 9 installments were remitted by him in his father's name that even after he moved out of the house during November 1981, he was paying money to the plaintiff for expenses for maintenance of their parents. Further, the first defendant has stated that it is incorrect to state that the suit plot was purchased from the savings of their father and that the 9 installments were remitted by the father and it is false to state that the plaintiff signed as guarantor for the loan only because the property is a joint property.

32. Thiru.Ramdoss, brother of their father was examined as DW-2. During the course of cross examination, DW-2 would state that the first 9 installments were remitted in the name of Thiru. R.Sowrirajan and the advance amount of Rs.1500/- was also remitted in his name. That, it is incorrect to state that the Anna Nagar house was constructed out of the joint savings of all the family members. In the chief examination, DW-2 had stated that the first defendant came and gave him his first salary and that he had been giving Rs.100/- every month as savings. A suggestion in the cross examination stating that it is a false evidence was emphatically denied by DW-2.

33. Thiru.Chittrachennan, a relative was examined as DW-3, and this witness supported the evidence of DW-1 that the door frames, door and windows were supplied from Andan Koil. Thiru.Cheziyan, the brother of the Thiru.R.Sowrirajan, was examined as DW-4 and he supported the case of the first defendant fully. Thiru.S.Ramalingam was examined as DW-5, who is the brother of DW-3, who stated that the second defendant had purchased the extent of 83 cents at Andan Koil and Rs.2000/- was paid before the Sub-Register and in respect of the balance sale price a pro-note was executed. Since, he was unable to pay the balance, he had re-conveyed the property back to the vendor himself and realised only Rs.300/-, after meeting the documentation expenses and that he knows about the same, since the purchaser Mr.Srinivas had informed him, though it is so stated in Exhibit A-2. The second defendant was examined as DW-6, and in the chief examination he stated that he has no objection for the plaintiff to be given 5/12th share in the suit property. In the cross examination, he stated that during 1972, he purchased a property in Andan Koil and he is not aware about the sale consideration and he had sent the money through his father and does not know about it. It is admitted by DW-6, that during 1974, he had sold the property to his vendor himself and that he is not aware whether one Mr.Sabanayagam signed as witness during the time of purchase in 1972. He would further state that during 1974, he was not employed and he joined Nedunkadi Bank during 1982. The third defendant was examined as DW-7. In the chief examination, she would state that the Anna Nagar property is a joint family property. In the cross examination, she would state that the plaintiff has married her husband's sister and that her husband is her uncle's son. She would further state that only after the first defendant secured employment, she and the other family members came to Chennai from Pattukottai. Though DW-7 was not clearly aware as to when the transfer of allotment was made in favour of the first defendant, would state that she is not aware as to what share the plaintiff has claimed in the suit property, but she does not require any share. Finally, she has denied the suggestion that the suit property was constructed from the sole income of the first defendant.

34. Thus on a cumulative appreciation of the evidence on the side of the defendant, it comes to light that the first defendant has been able to produce the original receipts for remittance of the amount to the Housing Board as well as the various correspondence between himself and the Board as well as the correspondence between him and the credit society and cogently has been able to prove by documentary evidence that the suit plot was purchased by him out of his self earning. Even during the cross examination, the plaintiff has not been able to dislodge the first defendant's stand. The case of the first defendant has been supported by DW-2 and DW-4. DW-6, the second defendant, miserably failed to establish that sale consideration was received by him after the sale of the 83 cents of land under Exhibit A-2. Per contra from the evidence of DW-3 and DW-5, it is seen that the property was sold by the second defendant to his vendor himself and the deposition of DW-5 to the effect that since the second defendant was not able to pay the balance sale consideration had re-conveyed the property back to the vendor and only Rs.300/- was received by him. Though the third defendant would state that the property is a joint family property, she has not been able to lead any cogent evidence in support of her stand. In fact she was not in a position to even state correctly as to when the order of allotment was transferred in favour of the first defendant. It is to be noted that the third defendant in her cross examination admitted that they all shifted to Chennai only after the first defendant had secured employment at Basin Bridge. Therefore, the case pleaded by the plaintiff that he came to Chennai first and secured employment before the first defendant appears to be incorrect. The deposition of DW-4 is cogent and even during the cross examination the stand taken by him could not be dislodged and there is no reason for rejecting his evidence. Likewise the evidence of DW-2 fully support the case of the first defendant and even during the cross examination, the witness remained firm. Thus, it has to be held the first defendant has been able to establish by cogent oral as well as documentary evidence to prove that the suit property was purchased with his funds, initially in the name his father and subsequently got transferred in his own name, that he had secured the housing loan and applied and obtained building plan approval in his name and commenced and completed the construction during 1975 with his own funds. Though, it is the admitted case of all the parties that there was joint living, there is no acceptable evidence to establish the case of the plaintiff that the resources of all the family members, who were living joint where put in a common kitty and the surplus from such common kitty was utilized for the purpose of purchasing the suit plot. Therefore, it has to be held that the plaintiff has failed to establish his case of joint exertion for purchase of the suit property and therefore question No.(b) is answered against the plaintiff.

35. The Trial Court accepted the case of the first defendant and held that it is the first defendant, who alone has constructed the house on the suit plot and held that the suit plot was allotted in the name Thiru. R.Sowrirajan and installments one to nine were paid out of the income of the joint family nucleus and therefore, the plaintiff was entitled to 5/16th in the suit plot . The learned counsel for the plaintiff would contend that the case of the plaintiff itself is not one of a joint family nucleus, but a case of joint exertion and joint income. In that regard, the plaintiff has examined himself and six other witnesses and have marked 18 documents. Though it is the admitted case of the parties that there was joint living, there is no acceptable evidence to support the theory of joint exertion as stated by the plaintiff, as held by the Hon'ble Supreme Court the burden of proof is on the plaintiff and this burden has not been discharged by the plaintiff. Therefore, the trial Court was not justified in a granting a decree for 5/16th share in the suit plot, when the plaintiff failed to discharge the burden cast upon him. Mere joint living alone cannot lead to a conclusion of joint family income or joint exertion. Hence, this question is answered against the plaintiff.

36. The trial Court framed the issue as to whether the second defendant is entitled to 5 / 16 the share in the suit property as the third issue. The trial Court decided this issue in favour of the plaintiff holding that the allotment of suit plot was made in the name of Thiru R. Sowri Rajan and installments 1 to 9 were paid by him and therefore, the suit plot is to be construed as a joint family property and the plaintiff and defendants are entitled the respective shares. Thus, it appears that what weighed in the minds of the trial Court was that the plot was allotted in the name of Thiru R.Sowrirajan and the installments 1 to 9 were paid by him and therefore, it is to be construed that he was the owner of the plot. In our view, merely because, the allotment stood in the name of Thiru R.Sowrirajan cannot by itself, create a presumption that the property was his separate property or that he has contributed for the purchase of the property especially when we consider the evidence on record in the present case. It is a specific case of the first defendant that he submitted an application to the Housing Board for allotment of the plot in the name of his father Thiru R.Sowrirajan for sentimental reason and that he was the first person in the family to come to Chennai and secure an employment and it is only thereafter his parents along with plaintiff and the defendants 2 & 3 came over to Chennai. The plaintiff has not been able to establish by satisfactory evidence that he had moved over to Chennai earlier to the first defendant and that he secured an employment even before the first defendant could get the employment and that during the relevant year when the suit plot was purchased, he had sufficient surplus income to contribute for the purchase of the property. The first defendant has placed oral and documentary evidence to establish that the installments were paid by him. No doubt, it is true that there is no document exhibited either by the plaintiff or by the first defendant regarding the first 9 installments paid to the Housing Board. The documents produced by the first defendant are all subsequent to the transfer of the allotment in favour of the first defendant. But, it is to be noted that Ex.B-1 dated 01.03.1973 is the mortgage loan deed executed by the plaintiff and the first defendant, Ex.B-2, a letter dated 09.09.1972 written by Thiru R. Sowrirajan, the plaintiff and the second defendant to Secretary, Madras City Corporation House Mortgage Society. This letter states that with reference to the application of the first defendant for loan, the plaintiff, second defendant and their father Thiru R. Sowrirajan declared that they have no claim whatsoever over Plot No. 81 and that the plot belongs to the first defendant only. The effect of this document could not be assailed by the plaintiff. Though it has been stated that such document was executed only for the purpose of securing loan, there is no acceptable evidence to rebut or to dislodge the veracity of Ex.B-2. The contents of Ex.B1 & B2 will categorically go to establish that the plaintiff and the second defendant and their father Thiru R. Sowrirajan accepted the fact that the said plot was the property belonging to the first defendant only. This conclusion is fortified by the fact when the allotment stood transferred in favour of the first defendant, the Chairman of the Housing Board by letter dated 25.11.1970, Ex.B-6, addressed their father Thiru R.Sowrirajan stating that the suit plot originally allotted in his name is transferred to the first defendant with all assets and liabilities with effect from 22.10.1970 and all future correspondence will be made in the name of the first defendant and that Thiru R.Sowrirajan is not eligible for any future allotment from the Housing Board. A copy of this proceeding was also marked to the first defendant. Therefore, these documents would go to establish that the parties were conscious of the fact that the first defendant alone is the owner of the suit plot. In such circumstances, the finding of the Trial Court stating that since the allotment originally in the name of Thiru R.Sowrirajan would be a factor to be construed that the property as a joint family property is not acceptable. As per the law laid down by the Hon'ble Supreme Court, referred above, there is no presumption of the property being a joint family property only on account of existence of a joint Hindu family. The plaintiff, who has asserted that it is a joint property by contenting that it is a result of joint exertion has to prove that the property is a joint property. The analysis of the evidence as referred above, it is an accepted fact that the allotment originally stood in the name of Thiru R.Sowrirajan and there is no evidence to establish that the first 9 installments were paid by Thiru R.Sowrirajan, which, according to the plaintiff, was on account of joint exertion. As could be seen from the evidence, Thiru R.Sowrirajan did not have any permanent employment except for being an agent of Life Insurance Corporation. Admittedly, there is no initial nucleus, which can be said to be the basis for contribution for purchase of the suit plot. An attempt was made by the plaintiff to show that the sale consideration received by the second defendant pursuant to Ex.A-2 Sale Deed formed the nucleus, but this plea fell to the ground on account of the cogent evidence of D.W-5, who has stated that the second defendant did not pay the entire sale consideration at the time of purchase of property covered under Ex.A-2, since he could not pay the sale consideration, he was constrained to re-convey the property to his vendor one Srinivasan in Ex.A-2 and all that he received was Rs.300/-. In fact, the second defendant was examined as D.W-6 and he miserably failed to establish the theory propounded by the plaintiff that the consideration received under Ex.A-2 was utilized for the purpose of purchase of the suit plot. Admittedly, both the parties did not produce the receipts for the first 9 installments. As stated, unless this is established in the manner known to law, the burden of proof does not shift to the first defendant to establish that it is his individual property. In the absence of any documentary evidence to establish that the payments were made by their father in respect of 9 installments, the same cannot be presumed in favour of the plaintiff and therefore, the finding of the trial Court that the plot is to be construed as the joint family property is not tenable. Therefore, in our view, the trial Court erred in granting a decree in favour of the plaintiff in respect of the suit plot alone.

37. The trial Court dismissed the suit claim in respect of superstructure on the suit plot. By way of cross objection, the plaintiff has contended that the superstructure was also constructed out of joint exertion. Once again, burden is on the plaintiff to prove the said assertion. The case of the plaintiff itself is that all of them lived jointly under one roof and out of joint income, the property was purchased in the name of their father Thiru R.Sowrirajan and it is not the case of the plaintiff that Thiru R.Sowrirajan had no income at all, but the case was that he had no regular income and the second defendant sold the property under Ex.A-2 and the funds were contributed for purchase of the suit property. The mortgage deed was discharged from the rental income received from the property and in the absence of any nature and that agreement between the plaintiff and the first defendant relinquishing his right over the suit property, mere transfer of allotment would not grant right in favour of the first defendant, since transfer of allotment was only to obtain loan and not on account of any relinquishment. Joint living and joing mess gives raise to presumption that the investment was joint. As held earlier, the second defendant miserably failed to establish that the sale consideration received under Ex.A-2 was utilized to purchase the suit property nor the plaintiff was able to establish this fact after the deposition of DW-3 and DW5. The contention is that Ex.A-2 cannot be impeached by oral evidence of D.W-5. However, it is to be noted that the second defendant, who was examined as D.W-6 in cross-examination would state that during 1972, he went to Andan Koil and purchased the land and he does not know what is the sale consideration paid by him, he had sent money for purchase of the property through his father and he does not know about the sale. He would further state that the land which had been purchased was resold to the vendor himself in 1974 and that he does not remember whether Sabanayagam was the witness under Ex.A-2. He would further state that he does not remember whether the property was resold to the vendor himself and he does not remember as to whether the property was resold to the persons, who had taken it on lease. The second defendant would further state that during 1974, he was not employed and in 1982, he joined in Nedungadi Bank. Therefore, even as per the evidence of the second defendant, examined as D.W-6, he has not been able to support the case of the plaintiff that a sum of Rs.4,000/-, which is said to be the sale consideration received under Ex.A-2 was used for the purpose of the suit plot. It is the further case of the plaintiff that the documents exhibited by the plaintiff and the first defendant should be read as a whole and cannot be read in isolation, and if that is done, the plaintiff's case would be established. In our view, the burden is on the plaintiff to establish through satisfactory oral and documentary evidence to prove his case of joint exertion and joint family income. Mere joint living alone would not give rise to the presumption of joint family income or joint exertion. Therefore, in the absence of any acceptable evidence to support the case of the plaintiff, to prove the burden cast upon him, the documents exhibited by the first defendant and the cogent evidence of the witnesses examined on his side would show that the first defendant enjoyed the property as his individual property and the plaintiff, second defendant and their father Thiru R.Sowrirajan also recognized the same under Ex.B2. There is no evidence let in by the plaintiff to dislodge the contents of Ex.B-2 and the effect of Ex.B-1, mortgage loan deed and all other documents from Ex.B-6 to Ex.B-52 would go to establish that the first defendant had prepared the estimate for construction of house and obtained construction plan approval from the Corporation of Madras and constructed the property, paid the installments and other dues to the Housing Board and contested the demand made by the Housing Board for additional costs before Arbitral Tribunal and after the award was passed thereon, obtained the sale deed in his favour during 1985. For the first time, the claim is made by the plaintiff for partition in 1993 much after the demise of their father Thiru R.Sowrirajan. Therefore, on facts, we can safely conclude that there is no acceptable evidence to establish that the superstructure on the suit plot was constructed either out of joint exertion or out of joint family income. It is to be noted that it is not the plaint averment that the installments were paid by the plaintiff, first defendant and their father and that the property standing in the name of the second defendant was sold and invested to purchase the suit property. The second defendant never took such stand and there is no averment by the second defendant about the sale deed Ex.A-2. Reliance was placed on the letters written by the plaintiff's mother Tmt.Rama Amirthammal. In our view, these letters are more of in the nature of testamentary deposition in respect of certain immovables possessed by her. While writing such letters, she had made certain references and more about family members, which, in our view, cannot in any manner advance the case of the plaintiff and is of no assistance to the plaintiff in discharging the burden cast upon him.

38. Therefore, the trial Court rightly declined to grant any relief in favour of the plaintiff in respect of superstructure on the suit property and the said finding does not call for any interference. Accordingly, question No. C is answered in favour of the appellant / first defendant.

39. One other plea raised by the plaintiff is that mere transfer of allotment in favour of the first defendant cannot confer an absolute right in his favour over the suit plot. According to the plaintiff, this transfer of allotment was only made to facilitate securing the Housing Loan for putting up superstructure on the property. The effect of allotment of letter or agreement or license in respect of immovable property, when execution of registration of sale deed came up for consideration before the Hon'ble Apex Court in Syndicate Bank Vs. Estate Officer and Manager APIIC Limited in (2007) 8 SCC 361, the Hon'ble Apex Court held thus:

"The title, which is subordinate to the owner and it need not be created by reason of a registered deed of conveyance may at times create title. The title, which is created in a person may be the allotted one, although conferment of full title may be governed by upon fulfillment of certain conditions. Whether all such conditions have been fulfilled or not would essentially be a question of fact in each case."

In the instant case, the right, which accrued in favour of the first defendant stands fortified by the transfer of allotment in his favour. On compliance with the conditions contained in the lease-cum-sale agreement, Ex.B-4, Tamil Nadu Housing Board had executed in favour of the first defendant under Ex.B-45. Unless the plaintiff had established that the transfer of allotment was only intended for securing a loan, it has to be necessarily held that transfer of allotment created an indefeasible right in favour of the first defendant. There is no documentary or oral evidence to support the theory of the plaintiff that the transfer of allotment was only to facilitate in securing the loan. Ex.B-2 cannot be disbelieved, especially when there is categorical assertion that the plaintiff, second defendant and their father have recognized the title of the first defendant and the execution of this document is not denied by the plaintiff. In the absence of any other evidence to dislodge the effect of Ex.B-2, there is no reason for us to ignore the said document and come to a different conclusion. Accordingly, the decree of the trial Court granting a share of 5 / 16 share in favour of the plaintiff on the suit plot is not well-founded considering the facts and circumstances of the present case. Learned counsel for the second defendant placed reliances on the following decisions in AIR 1926 Bombay Pg.408, AIR 1928 Lahore Pg.224 and AIR 1965 Madras Pg. 340.

40. The ratio which can be culled out from the above judgments are that there was no distinction between ancestral joint family property and joint family property and there was anything either in practice or in theory which executed the possibility of the members of the same family starting the family fortune holding it as members of the family and thereby clothing that all the legal qualities and instances of a joint family property. Whether father and sons acquire their property by their joint labour or any workship, they must be regarded as having considered a joint Hindu family even though there may have been no nucleus or properties, which has come down to father from his father or grand father that even members of the joint family, who are joint in status and carry on business and acquire property by their joint labour and exertion with the aid of any ancestral nucleus, the presumption is that the property acquired by them would the joint family property.

41. It is to be noted that the ratio in the above judgements were rendered considering the facts and circumstances of each case It was found in those cases that there was an origin to such acquisition of the property, though not in the nature of ancestral nucleus, but in the form of small business or shop. Thus, while construing the factual matrix involved in the particular case, the decision came to be rendered. If the ratio stated above are to be applied to the facts on hand, the only conclusion that can be arrived is that except for the aspect regarding joint living for the stated period of time, the plaintiff has not been able to establish that out of joint exertion, the suit plot was purchased and further the rental income was used to repay the housing loan. It is to be noted that at this stage, when the plaintiff admits during the period of joint living he had purchased the immovable properties in his name as well as vehicles in his name and it is not forthcoming from the plaintiff as to whether those properties are also to be construed as outcome of joint exertion. If the answer to the question is in the affirmative, then the further question would be the defendants entitled to a share in those properties also? However, such matter is not the lis in the present proceeding. The details of the assets purchased by the plaintiff stated to be his individual properties are listed out in the written statement filed by the first defendant and the facts are not disputed by the plaintiff. Having regard to our conclusions that the plaintiff failed to establish that the suit property, the plot as well as the superstructure was the property out of joint exertion and joint family income and that it is the individual property of the first defendant acquired and constructed on his own, neither the plaintiff nor the second and third defendants were entitled for any share in the suit property both in the plot as well as in the superstructure. Therefore, while upholding the conclusion of the trial court as regards the disentitlement of the plaintiff and the defendants 2 and 3 in respect of the superstructure, we set aside that part of the judgment decree in holding that the plaintiff and the second and third defendant were entitled for a share in the suit plot much less to the extent of proportion mentioned therein.

42. Conclusion:-

In the result, A.S. No. 473 of 1998 is allowed as prayed for. Cross objection 37 of 2000 is dismissed and the consequently judgment and decree in O.S. No. 2187 of 1996, dated 21.11.1997 on the file of the V Additional City Civil Judge, Chennai is set aside and the suit stands dismissed. However, considering the facts and circumstances of the case, there will be no order as to costs. All C.M.Ps closed.

	   (F.M.I.K.J)       (T.S.S.J)
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Index:Yes/No
Internet:Yes/No
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F.M.IBRAHIM KALIFULLAH, J.
AND
T.S.SIVAGNANAM,J.
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Pre-Delivery Order in
A.S.No.473/1998 & 
Cross Objection.No.37 of 2000

















23.04.2010

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