Madras High Court
S.M.Venkatarama Naidu (Died) vs S.M.Duraisami Naidu on 22 August, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 22.08.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.804 of 1996 1. S.M.Venkatarama Naidu (Died) 2. S.M.Krishnamurthy 3. S.M.Renugopal Naidu (Died) 4. Kanagammal 5. V.Sundaramoorthy 6. Jeyalakshmi 7. S.R.Srinivasan 8. Krishnaveni 9. Jagadesan 10.R.Suresh Babu .. Appellants (Appellants 4 to 6 brought on record as L.Rs of the deceased first appellant and appellants 7 to 10 brought on record as L.Rs. of the deceased third appellant vide order of Court dated 30.07.2008 made in CMP Nos.1239 and 1242 of 2008) vs 1. S.M.Duraisami Naidu 2. Manickammal 3. T.Palani 4. Lalapettai Subramania Gounder 5. Subramania Gounder 6. Ranganathan 7. Leelavathi Ammal 8. Venu 9. Chinna Pillai 10. Chinnaponnu 11. Suguna 12. S.M.Jayaram Naidu .. Respondents Appeal against the judgment and decree of the learned Subordinate Judge, Vellore, N.A.A. District passed in O.S.No.304 of 1986 dated 29.03.1996. For appellants : Mr.M.N.Muthukumaran For respondents : Mr.A.Anbarasu JUDGMENT
This appeal is focussed as against the judgement and decree dated 29.03.1996, passed in O.S.No.304 of 1986 by the learned Subordinate Judge, Vellore. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. Heard the learned counsel appearing for the parties.
3.Bereft and niggard of details, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:-
The deceased one Munusamy Naidu had five sons, namely, plaintiffs 1 to 4 and D1 and one daughter, namely, D2. He and his sons constituted a coparcenary. The said Munusamy Naidu died on 27.1.1965 leaving being his aforesaid children, as his legal heirs.
(b) In fact, the said deceased Munusamy Naidu's father Nallaiyya @ Nalla Vandayya Naidu owned huge properties. He died during the year 1936, leaving behind his three sons, namely, the said Munusamy, Sanjeevi and Chinnasami and they possessed their undivided joint family properties. Consequent upon the death of the said Munusamy, D1, being the eldest male member of the joint family was enjoying those joint family properties.
(c) D1 purchased the shares of Sanjeevi and Chinnasamy in the joint family property and there is an inexhaustive well in item No.2 of the suit properties, which is the main source of irrigation for other items of properties; three bogums of cultivation were undertaken in the suit properties by the joint effort of the plaintiffs and D1 and from out of the income derived, a provision store under the name and style of 'Meenakshi Provision Store' and 'Palani Beedi Factory' were started and conducted by D1, in addition to having purchased properties at Vellore; D1 desired to treat the income arose from the separate properties as his separate income, for which, the plaintiffs agreed and executed a release agreement, relinquishing their rights over the said business only and not in respect of the suit properties, described in the schedule of the plaint; the business conducted by D1 were wound up soon and as such the release agreement also became inoperative.
(d) The plaintiffs and D1 continued to be in joint possession of the suit properties; the income derived there from was divided among them annually; the plaintiffs came to understand that D1 sold items 1 and 2 of the suit properties in favour of D2 and part of the item 6 in favour of D4 and D5 and the remaining part of item No.66 was sold in favour of D6, in addition to having sold the 12th item in favour of D7. Those sales are brought about fraudulently so as to deprive the interest of the plaintiffs. After pre-suit notice, the suit was filed for partition.
4. Impugning and gainsaying, challenging and contradicting the allegations and averments in the plaint, the first defendant filed the written statement, the nub of it would run thus:-
The suit properties are not the joint family properties as alleged in the plaint. The shares claimed by the plaintiffs over them are untenable. The sons of Nallayya @ Nallavandaya Naidu, namely, Munusami, Sanjeevi and Chinnasami were not in possession and enjoyment of the suit, properties, as their joint family properties. The partition, which emerged among his father, namely, Munusami Naidu and his brothers, namely, Sanjeevi and Chinnasami made them divided in status and as a sequela, the first item of the suit property and a vacant site, as described in item No.7, without any tiled house thereon, were allotted to the share of Munusamy Naidu, who had no self-acquired properties. D1 did not manage any joint family properties of his paternal uncles, after their life time. No property was purchased by D1 from out of the income allegedly derived from those joint family properties; D1 purchased the 2/3rd share of his uncles', namely Sanjeevi and Chinnasamy, in item No.1, but that was not put in the common hotch pot of D1's father, who had only 44 cents in item No.1 as his ancestral property. Items 2 to 4 of the plaint schedule properties were obtained on Darkhast and D1 has been in possession and enjoyment as his absolute properties. It is false to allege that by availing the water from the Well in item No.2, three bogums were being cultivated, jointly. The allegations in the plaint relating to validity of release deeds are untrue. The alleged income from the joint family properties was not divided annually as claimed in the plaint. D1's father was a petty contractor and as early as in the year 1935, D1 left the village and started working as a clerk in various firms and from out of his own income, he purchased some of the items of the suit properties and also he took care of the entire family. In fact, during the year 1960, D1's parents also started living with D1 at Vellore. D1's father Munusamy Naidu died in the year 1965 and D1's mother died during the year 1969; D1, by investing his own income started business and purchased properties also. The plaintiffs are having their own employment and started living separately. They acquired various items and sold them also. The said Munusamy Naidu, during his life time intended to give away his 44 cents of land in item No.1 in favour of his widowed daughter D2. In deference to it, D1 sold the 44 cents of land in item No.1 in favour of D3 and paid the sale proceeds to D2, and accordingly, he prayed for the dismissal of the suit.
5. D6, in his written statement would contend that he is a bona fide purchaser for value the vacant site measuring 5 cents in Dry Survey No.15/2, which forms part of the suit properties.
6. D7 also would contend that he is a bona fide purchaser of the 10th item of the suit properties from D1 for valuable consideration and that he prayed for dismissal of the suit in respect of the 10th item.
7. The trial Court framed the relevant issues. During the trial, on the side of the plaintiffs P3 examined himself as P.W.1 and Ex.A1 to Ex.A4 were marked. D1, D3 and D7 examined themselves as DW.1 to D.W.3 along with one Meenakshi Sundaram as D.W.4 and Ex.B1 to Ex.B46 were marked.
8. The trial Court ultimately dismissed the suit. Being dissatisfied with and aggrieved by the judgement and decree of the trial Court, the appellants preferred this appeal on various grounds, the warp and woof of them, would run thus:-
(a) The judgement and decree of the trial Court are against law and weight of evidence;
(b) the lower Court failed to hold that the family had ancestral properties;
(c) the law relating to onus of proof was not taken into consideration by the lower Court;
(d) the trial Court failed to hold that the 44 cents of land in item 1 is the ancestral property;
(e) merely based on patta, standing in the name of D1, in respect of items 2 to 4, the trial Court erroneously held as though those items of properties belonged to D1 absolutely;
(f) the trial Court failed to hold that the patta granted in favour of the manager of the Hindu joint family would enure to the benefit of all the members of the joint family;
(g) the trial Court failed to hold that even during the life time of Munusamy Naidu, items 2 to 4 were in possession and enjoyment of the joint family;
(h) the business conducted by D1 also belonged to joint family, which fact was not upheld by the trial Court;
(i) D1, being the Manager of the joint family, acquired various items of suit properties, which should have been held by the trial Court as the ones belonging to the joint family.
(j) the release deeds were not acted upon, but the trial Court held otherwise;
Accordingly, the appellants prayed for setting aside the judgement and decree of the trial Court and for decreeing the original suit as prayed for.
9. The points for consideration would run thus:-
(i) Whether the release deeds Exs.B1, B10, B13 and B20 are genuine release deeds and if so, what is the effect as against the claim of the plaintiffs in the suit?
(ii) Whether D1 and D2 were justified in contending that the 44 cents of land in the fist item of the suit properties, which Munusamy Naidu got from his brothers in the partition, was validly sold in favour of D3?
(iii) How the other suit items of properties were acquired? and Whether they belonged to the coparcenary comprised of Munusamy Naidu and his five sons plaintiffs 1 to 4 and D1?
(iv) Whether the contention of D1 that he acquired various items of suit properties from out of his own income is tenable?
(v) What are the rights of D3 to D7 in respect of the suit properties?
(vi) Whether the plaintiffs are entitled to partition as prayed for?
(vii) Whether there is any infirmity in the judgement and decree of the trial Court.
10. Heard both sides.
POINT NO.1:
11. The learned counsel for the plaintiffs would advance his argument to the effect that the release deeds viz., Exs.B1, B10, B13 and B20 executed by the plaintiffs 1 to 4 respectively in favour of the first defendant without setting out any schedule of properties thereunder would not in any way enure to the first defendant so as to contend that the plaintiffs relinquished their rights in favour of the first defendant relating to all the properties, both business and immovable properties; at the most it could be construed only as release deeds in respect of business and not in respect of immovable properties and also the ones which the first defendant acquired subsequent to such release deeds from out of the joint family income. Whereas, the learned counsel for the first defendant would draw the attention of this Court to the recitals in those release deeds and develop his argument to the effect that the plaintiffs 1 to 4 in unmistakable terms relinquished all their rights over the business as well as all the immovable properties in favour of the first defendant. It is therefore just and necessary to refer to those deeds and more particularly, to certain excerpts extracted hereunder:
12. An excerpt from Ex.B1 would run thus:
".......,e;j mf;F (ghj;jpa) tpLjiy gj;jpuK:y;akha; ic& ,Utpahghu';fspYk;. j';fsplk; vy;yh !;jhtu $';fk brhj;Jf;fspYk; ehd; ghj;jpak; bfhz;lhlkpUf;Fk; vd;fpw ghj;jpaj;jpaj;jpw;fhf (alleged right or title etc.)t[k; j';fsplk; ehd; ,d;W njjpapy; buhf;fkha; bgw;Wf;bfhz;l U:gha; 1500- Mapuj;J IE}W kl;Lk; bgw;Wf; bfhz;Ltpl;nld;; ifahy; ,dp jh';fs; Rakha; K:yjdk; itj;J elj;jptUk; ic& ,Utpahghu';fspYk; j';fsplk; vy;yh !;jhtu $';fk brhj;Jf;fspYk; vt;tpj ghj;jpaKk; ehd; bfhz;lhLfpwjpy;iy vd;W ,jd; K:ykha; vd; kdr;rk;kjpapYk; vGjpf;bfhLj;j ic&f;F (ghj;jpa) tpLjiy gj;jpuk; jtpw ic& brhj;Jf;fspy; vdf;fhtJ vd;dplk; t!;JfSf;fhtJ vt;tpj ghj;jpaKk; cwf;Fk; iul;Lk; fpilahJ/ jtpwt[k; ehd; jh';;fs; elj;jptUk; gHdp gPlh kz;o vd;fpw onul;khh;f;if ahthjp kPdhTt&pg;buhtpc&d; !;nlhh;!; vd;W tpyhrk; itj;jhtJ ehd; ahbjhU tpahghuKk; elj;Jtjpy;iy/ mk;khjphp ehd; VjhtJ elj;jpdhy; mjdhy; Vw;gLk; fc;&lj;ija[k; ec;&lj;ija[k; fl;obfhLg;gJld; ft;h;bkz;L rl;ljpl;l';fSf;Fk; fl;Lg;gLfpnwd;/ ,e;jg;gof;F ehd; kdg;g{h;tkha; rk;kjpj;J vGjpf;bfhLj;J cwf;F (ghj;jpak;) tpLjiy ghj;jpuk; ,d;W j';fspl tPl;oypUe;Jk; fhyp bra;Jtpl;nld;/ brhj;;J tptuk; fz;L vGj rhj;jpa glhjjhy; bghJthf tpLjiy bra;J bfhLf;fg;gl;lJ/"
13. An excerpt from Ex.B10 would run thus:
".... .... ....vdf;Fk; vd;dpl thh;RfSf;Fk; jh';fs; mDgtpj;JtUk; vy;yh !;jhtu. $';fk. brhj;Jf;fspYk; tpahghuj;jpYk; ,itfspy; ve;jtpjkhd ghj;jpaKk; cwf;Fk; bfhz;lhl epahakpy;yhkypUe;Jk; jhth tpc&akha[k; jh';fs; vd;dpl ,ju rnfhjuu;fSf;F bfhLj;J ,Uf;fpw khjphp vdf;Fk; nkny brhy;ypa ahtj;J fhuz';fSf;fhft[k; jh';fs; vdf;F bfhLj;j U:gha; 2250-00 vGj;jhy; U:gha; ,uz;lhapuj;J ,UE}w;W Ik;gJk; ,d;W j';fsplk; ,Ue;J ehd; bgw;Wf;bfhz;lgoahy; ic& tifapy; vdf;Fk; j';fSf;fk; j';fspl vy;yh ahtj;J brhj;jJf;bfSf;Fk;. tpahghuj;jpw;Fk; ahbjhU ghj;jpaKk; cwf;Fk; fpilahJ mk;khjphp bfhz;lhlf;Toa ghj;jpa cwf;ifa[k; ,e;j ghj;jpu Kd;dpiyf;F cwf;if uj;J bra;J bfhLj;Jtpl;nld;/ ,dp ekf;Fs; N:jf ghj;jpank jtpu ntU ve;jtpjkhd brhj;Jghj;jpa';fnsh ic&f;nfh fpilahJ ,e;jg;gof;F ehd; vd; kd rk;kjpahy; vGjpf;bfhLj;j cwf;F tpLjiyg;gj;jpuk; brhj;Jtpguk; fz;L vGjKoahjjhy; bghJthf vGjg;gl;lJ."
14. An excerpt from Ex.B13 would run thus:
"...... ...... ......Mf ,dk; ,uz;Lf;F Toa U:3500/0/0 vGj;jhy; U:gha; K:thapuj;jp Ie;J E}Wk; bgw;Wf; bfhz;l tpguk; ehd; j';fsplj;jpy; Kd; 18/11/1959y; buhf;fkha; bgw;Wf;bfhz;l U:/500/0/0k; Kd; 20/12/1959y; buhf;fkhf bgw;Wf;bfhz;l U:/500/0/0k; ehsJ njjpapy; j';fsplj;jpy; ehd; buhf;fkha; bgw;Wf;bfhz;l U:/2500/0/0k; Mf ,dk; K:d;Wf;F Toa U:gha; K:thapuj;jp Ie;J E}Wk; nky; fz;l tpjkha; vdf;F nrh;e;Jtpl;lgoahy; ePh; Rakha; rk;ghjpj;jahtj;jJ !;jhtu$';fk brhj;Jf;fspYk; jh';fs; elj;jptUk; gHzp gPo onul;khh;f; tpahghuj;jpYk; kPdhTc&p g[nuhtpc&d; !;nlhu;!; vd;W tpyhrk; nghl;L jh';fs; elj;jptUk; tpahghuj;jpYk; vdf;F ,Uf;Fbkd;W Twg;gLk; (alleged) ahtj;J cwf;Ffisa[k; ,jd; K:yk; cwf;FtpLjiy bra;Jtpl;nld;/ ,dp vdf;F vt;tpjj;jpYk; nkw;fz;l !;jhtu$';fk brhj;Jf;fspy; vt;tpjkhd ghj;jpa';fSk; cwf;FfSk; fpilahJ/ ,dp j';fSf;Fk; vdf;Fk; Njfghj;jpak; jtpu kw;w vt;tpjkhd ghj;jpa';fSk; ic&f;FfSk; fpilahJ/ ,d;W Kjy; tpyfptpl;nld;/ (ic& gHdp gPo onul; - ic& kPdhTc&p g[nuhtpc&d; !;nlhh;!;) vd;W ehd; tpyhrk; nghl;L ve;jf;fhyj;jpYk; tpahghuk; elj;Jtjpy;iy vd;W cwpjpaha; brhy;Yfpnwd;/ mg;go VjhtJ elj;jpdhy; jh';fs; nfhWk; ec;&l';fis fl;of;bfhLf;f rk;kjpf;fpnwd;/ ,e;jgof;F ehd; rk;kjpj;J vGjpf;bfhLj;j cw&f;F tpLjiyg; gj;jpuk;/"
15. An excerpt from Ex.B20 would run thus:
".......Mf ,dk; 2Yk; U:gha; 3750/- buhf;fkha; ehd; j';fsplkpUe;J bgw;Wf; bfhz;lgoahy; ic& tifapy; vdf;Fk; j';fSf;Fk; j';fspl ahtj;J $';fk. !;jhtu brhj;Jf;fSf;Fk; ic& tpahghuj;Jf;Fk; ahbjhU ghj;jpaKk; cwf;Fk; fpilahJ/ mk;khjphp bfhz;lhlf;Toa ahtj;J ghj;jpa cwf;ifa[k; ,e;j gj;jpu Kd;dpiyf;F uj;J bra;J bfhLj;Jtpl;nld;/ ,dp ekf;Fs; Njf ghj;jpahnk jtpu ntW ve;jtpjkhd brhj;J ghj;jpa';fnsh cwf;nfh fpilahJ/ ,e;j gof;F ehd; vd; kdrk;kjpapy; vGjpf;bfhLj;j cwf;F tpLjiy gj;jpuk;/ brhj;Jtpguk; bfhLf;f rhj;jpakpy;iy/ ////"
16. A mere perusal of those excerpts would unambiguously and unequivocally highlight and spotlight the fact that the plaintiffs 1 to 4 in unmistakable terms relinquished all their rights in the business and all the properties once and for all without reserving any right relating to any of the suit properties. The significant feature involved in all those release deeds worthy of being noticed, is that the plaintiffs candidly and categorically, unreservedly and pellucidly averred that except blood relationship, there was no more property relationship between the first defendant and the executants of the release deeds. Indubitably, the executants are all men in the know of things and not illiterates. In such a case, I am at a loss to understand as to how the plaintiffs could claim right over the suit properties by pleading that they relinquished only their rights over the business run by the first defendant and not in respect of the joint family properties.
17. At this juncture, my mind is redolent with the following three well known maxims:
1. Verba chartarum fortius accipiuntur contra proferentem (the words of an instrument shall be taken most strongly against the party employing them).
2. Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur (Latent ambiguity may be explained by evidence; for an ambiguity which arises by proof of an extrinsic fact may be removed in like manner)
3. Verba generalia restringunter ad habilitatem rei vel personae (General words may be aptly restrained according to the matter or person to which they relate).
18. Thus the above maxims would unambiguously exemplify that the plaintiffs being the executants of those release deeds cannot blow hot and cold. At this juncture, Sections 91 and 92 of the Indian Evidence Act also could be pressed into service as the plaintiffs cannot be allowed to veer round and take pleas quite antithetical to what they committed themselves in black and white. Had really the plaintiffs intended to claim right of co-owernship in the suit items 2, 3 and 4 which even according to them was in existence as the joint family property, then there would have been no rhyme or reason on the part of those educated and well informed executants of those release deeds to make assessments in the aforesaid fashion. They had gone to the extent of averring in those release deeds that there was no more of any claim over any property as against the first defendant and that there had been no property yet to be divided.
19. A fortiori as per those release deeds, the plaintiffs demonstrated and exemplified that there took place a division of status among the plaintiffs and the first defendant and there remained nothing more to be divided. No man having head over shoulder would ever in such categorical terms referred to supra, express the relinquishment, when in reality they had still more joint properties to be divided among the co-sharers. They also set out the quid pro quo for which they executed the release deeds in addition to having recollected copiously and whole-heartedly, the help that was rendered to them by the first defendant in bringing them up, in educating them and in enabling them to secure jobs. Hence, whatever may be the joint family property and whatever might by their right over them, the plaintiffs relinquished their right and they cannot have a volte face and turn turtle in resiling from their categorical commitment in the form of those Exs.B1, B10, B13 and B20 respectively.
20. The learned counsel for the plaintiffs would contend that the release deeds did not contain any schedule of property and in the absence of such schedules, there could be no presumption that the executants released their rights in respect of the immovable properties and that they have not valued those release deed as per the Stamp Act and the Registration Act. It is ex facie and prima facie clear that those release deeds are registered deeds. Relating to insufficiency of stamps, the same cannot be the botheration of the plaintiffs and it is between the State and the first defendant, over which the executants cannot raise their accuisitive finger as against their own act of executing release deeds and getting them registered. One cannot legally be permitted to capitalize his own fault or latches in view of the legal maxim "Nullus Commodum Capere Potest De Injuria Sua Propria"
21. As per Section 17 of the Registration Act, the said deeds were duly registered. It is also pertinent to point out that they being the executants of those registered sale deeds cannot challenge the same without making any specific prayer for cancellation of those deeds or for declaring those deeds as void. My above discussion would clearly demonstrate that there is nothing to show that those deeds are void so as to enable the plaintiffs to ignore it as well.
22. The learned counsel for the plaintiffs by placing reliance on the Full Bench decision of this Court reported in 1945 (1) MLJ 140 [Chella Subbanna and another vs. Chella Balasubbareddi and others] would develop his argument to the effect that even assuming, but without admitting that there was a release deed in respect of the co-parcenary properties, such relinquishments/releases under those documents cannot be taken as valid as no co-parcenar as per Mitakshara law could relinquish or release his share in the co-parcenary property to one of the several co-parceners. It is therefore just and necessary to extract hereunder the relevant portions of the cited judgment as under:
"The question propounded is whether one member of a joint Hindu family consisting of several members can, irrespective of a partition of the family estate, give his own interest therein to one of the other coparceners. If the judgments of this Court in Peddayya v. Ramalingam and Thangavelu Pillai v. Doraiswami Pillai are to be followed the answer must be in the affirmative, but it is said that the decision of the Privy Council in Venkatapathi Raju v. Venkatanarasimha Raju has made it clear that the observations in Peddayya v. Ramalingam and Thangavelu Pillai v. Doraiswami Pillai cannot be regarded as embodying a correct statement of the law.
......
The answer which we give to the question referred is this: a member of a joint Hindu family governed by the Mitakshara law cannot give his interest in the family estate to one of several coparceners if they remain joint in estate. In such circumstances he can relinquish his interest but the relinquishment operates for the benefit of all the other members."
23. The aforesaid judgment of the Full Bench of this Court emerged before the promulgation commencement of the Hindu Succession Act, 1956. In my considered opinion, in the evolutionary process of law, the Hon'ble Apex Court laid down the law in the precedent reported in AIR 1987 SC 1775 [Thamma Venkata Subbamma (dead) by L.R., v. Thamma Rattamma and others]. Certain extracts from it would run thus:
"12.There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions. Instead, we may refer to the following statement of law in Maynes Hindu Law, Eleventh Edn., Article 382:
It is now equally well settled in all the Provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid.... A coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts.
13. We may also refer to a passage from Mullas Hindu Law, Fifteenth Edn., Article 258, which is as follows:
Gift of undivided interest.(1) According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which preclude the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.
14. It is submitted by Mr P.P. Rao, learned Counsel appearing on behalf of the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparcenary property by way of gift. The reason is, however, obvious. It has been already stated that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated.
18. The High Court has noticed most of the above decisions and also the legal position that a gift by a coparcener of his undivided interest in the coparcenary property without the consent of the other coparceners is void. The High Court has also noticed the provisions of Sections 6 and 30 of the Hindu Succession Act. The learned Judges of the High Court have, however, placed much reliance upon its previous Bench decision in G. Suryakantam v. G. Suryanarayanamurthy AIR 1957 Andh Pra 1012. In that case, it has been held that the law is not that a gift of an undivided share is void in the sense that it is a nullity, but only in the sense that it is not binding on the other coparceners. No authority has, however, been cited in support of that proposition of law. On the contrary, there is a long series of decisions since the decision in Baba v. Thimma (1884) ILR 7 Mad 357 (FB) some of which have been referred to above, laying down uniformly that a gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to his relation without the consent of the other coparceners is void. In the circumstances, it is very difficult to accept the proposition of law laid down in G. Suryakantam v. G. Suryanarayanamurthy (supra) that a gift by a coparcener of his undivided interest in the joint family property is not void, but is only not binding on the other coparceners. When a particular state of law has been prevailing for decades in a particular area and the people of that area having adjusted themselves with that law in their daily life, it is not desirable that the court should upset such law except under compelling circumstances. It is for the legislature to consider whether it should change such law or not. It may be legitimately presumed that before the passing of the Hindu Succession Act, 1956, the Legislature must have taken into consideration the prohibition against making of gifts by a coparcener of his undivided interest in the coparcenary property, but the legislature has not, except permitting the coparcener to make a will in respect of his undivided interest by Section 30 of the Hindu Succession Act, altered the law against making of gift by a coparcener of his undivided interest. While considering whether the strict rule against alienation by gift should be interfered with or not, the court should also take into consideration the legislative inaction in not interfering with the rule against alienation by gift, while enacting the Hindu Succession Act. In the circumstances, we are unable to accept the proposition of law that has been laid down in G. Suryakantam's case (supra).
21. Assuming that it is a renunciation in favour of one of the coparceners, namely, Veera Reddy, such renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener in whose favour the renunciation was made. In our view, the gift made by Rami Reddy to Veera Reddy should be construed as renunciation of his undivided interest in the coparcenary in favour of Veera Reddy and his sons who were the remaining coparceners. The gift was, therefore, valid construing the same as renunciation or relinquishment by Rami Reddy of his interest in the coparcenary and, accordingly, the consent of other coparceners was immaterial."
24. A perusal of the above said precedents would clearly highlight that relinquishment of a co-parcener's interest in the co-parcenary property would enure to the benefit of the remaining co-parceners who are still joint and it would not be rather void, whatever be the nature of the wordings used in relinquishing his share either in favour of one or more of the co-parceners. The pith and marrow, the nub and quintessence of the principle embodied in the said dictum is that the jointness of the co-parcenary should not be disrupted. But, in this case, out of the five co-parceners, namely, the four plaintiffs and the first defendant, all the four plaintiffs relinquished their respective shares in favour of the first defendant and in such a case, it is beyond controversy and that cannot be found fault with. If one member alone relinquishes in favour of another member, then irrespective of the fact that the relinquishment is in favour of one member it would enure to the benefit of all the members in the co-parcenary and that jointness would continue. Here, in favour of one co-parcener, all the other co-parceners relinquished their right and in such a case, there could be no difficulty at all for the one co-parcener to enjoy the property and there is no more any jointness to be achieved among the co-parceners at all and consequently, the question of voidity being ushered in, has become beyond pale of controversy. Accordingly, point No.1 is decided in favour of the first defendant.
POINT NOS.2 AND 3:
25. What transpired from the whole kit and caboodle of facts and figures placed before the trial Court and the arguments advanced on either side is that the said Munusamy Naidu and his brothers owned the first item of the suit properties measuring an extent of 1.32 acres, over which the three brothers were entitled to equal shares. Consequently, Munusamy Naidu had 44 cents and his two brothers had totally 88 cents. It is an admitted fact that D1 purchased the said 88 cents of his uncles' share as per Ex.A1. However, the plaintiffs would contend that D1 purchased those shares from out of the joint family income derived by him, as D1 happened to be the kartha of the joint family, after the death of Munisamy Naidu. The plaintiffs also would put forth the plea that items 2 to 4 have been in possession and enjoyment of the co-parcenary family of Munisamy Naidu and only in recognition of such long possession, the Government issued Darkast in the name of D1, being the eldest male member of the said coparcenary.
26. Whereas the learned counsel for the D1 would advance his arguement by placing reliance on the definition of Darkhast as found set out in Ramanatha Aiyar's Lexicon as under:-
Darkhast: An application, a proposal; especially an application to a Court as distinguished from the filing of the suit, such as an application for the execution of a decree; application for assignment of Government land. In Madras the word is used for all official requests for transfer and relinquishment, or for revenue petitions generally, Rules for disposal of such, are called the 'Darkhwast-rules.' Dharkhast : When a land is granted on darkhast it cannot be said that it is given to a man benami for some other individual. The onus would be heavily on the party setting up such a case to make out his case."
27. He would contend that items 2 to 4 in the possession of D1, based on Darkhast cannot be treated as one on behalf of the joint family. Whereas, the learned counsel for the plaintiff would submit that all of a sudden the Government would not issue Darkhast patta in favour of one individual, unless the individual has been in possession and enjoyment of the land concerned for a pretty long time; here the said Munusamy Naidu and his sons have been in possession and enjoyment of the suit items 2 to 4 for a pretty long time and since D1 happened to be the eldest male member, the Revenue officials did choose to issue Darkhast patta in the name of D1, which cannot be mis-interpreted by D1 in his favour.
28. At this juncture, it is worthwhile to highlight that item No.1 is one covered under Darkhast as per Ex.B21 the patta pass book, which refers to Survey No.379/1 measuring an extent of 1.32 acres. It is therefore crystal clear that not only items 3 to 4 are covered under Darkhast, but item No.1 also. The learned counsel for the first defendant may not be right in his contention that once Darkhast patta is issued in the name of one person, it cannot be taken as the one in favour of the family, because admittedly as per the first defendant himself, the first item of the suit properties belong to the father of the plaintiffs 1 to 4 and the first defendant, namely Munusamy Naidu and his two brothers, each were entitled to 44 cents. In such a case, Darkhast patta as per Ex.B21 as already pointed above, now stands in the name of the first defendant. Even then, admittedly it belonged to Munusamy Naidu and his brothers originally. Hence, it is therefore crystal clear that Darkhast patta emerged not as projected by the first defendant.
29. The learned counsel for the plaintiffs also would put forth his argument that Ex.B31 which refers to the C-1 Form issued by the Tahsildar and the proceedings issued by the Collector's Office, would reveal that the first defendant made an application to obtain Darkhast patta relating to 66 cents of land in Survey No.379/3 which refers to the second item. There is some controversy relating to the Survey Number of the second item because, in the original plaint itself there is some overwriting, but it gets clarified from Ex.B31 that the second item should be S.No.379/3 measuring 66 cents. As such, it is clear that the first defendant made an application to obtain Darkhast only relating to the second item of the suit properties. However, Exs.B21 and B23 the patta pass book would refer to item Nos.1, 2, 3 and 4 of the suit properties as Darkhast properties. It is therefore crystal clear that the first defendant could not establish that he acquired independently those lands under Darkhast. No doubt, the learned counsel would cite the decision of this Court reported in 2002 (2) MLJ 538 [Sankaranarayanan v. Dhandapani and others] to highlight the point that assignment of patta in favour of one family member would not be construed as joint property of the entire co-parcenary. An excerpt from it would run thus:
14. This paragraph also makes it clear only land belonging to the Government is to be assigned. If it is a land belonging to the Government and the same was given to the plaintiff as grant, the law presumes that it is a self-acquisition in whose favour the grant is made. Sir Hari Singh Gour's Hindu Code, 6th Edition, 1992, Volume I, at page 283, the learned Author says thus:
"Property acquired from a grant from Government is unquestionably self-acquired unless it was merely restoration of a confiscated grant intended to be for the benefit of the family or is a grant made in consideration of the services rendered by the family or at its expense. But a party cannot sue Government for the modification of tis grant. For specific instances see under mentioned cases. The question whether a Government grant was personal to the grantee or to him and his family is one of construction and intention to be inferred from the terms of the grant and its surrounding circumstances. It may be that the grant is personal. Even then it is open to the grantee to treat it a a joint family asset and it becomes so if the grantee constitutes himself as trustee for his family or by a family arrangement or by a family custom." [Italics supplied] (emphasis supplied)
30. A bare perusal of the entire decision would indicate that there cannot be any patta that could be considered to have been received by one member on behalf of the entire family, however it is also clear from the same decision that the said one member could treat the property received as the joint family property also. Here my above discussion supra would clearly demonstrate that the plaintiffs as well as the first defendant have not come forward with a clear case relating to Darkhast as the admitted facts militates as against the D1's own plea of exclusive Darkhast right in his favour. Then the crucial question arises as to whether the plaintiffs are entitled to share in the suit items 2 to 4 and the 44 cents in first item. As has been already held supra while deciding the effect of the release deeds, I have given my finding that the plaintiffs relinquished their rights in respect of all the immovable properties and in such a case, even though they had no right to claim share in those items, they relinquished it validly.
31. Indubitably and unassailably the deceased Munusamy Naidu and his two brothers had joint co-parcenary properties, of which, the item 1 of the suit properties formed a part, in that Munusamy Naidu got 44 cents of land towards his share, whereas his other two brothers had 44 cents each and the two shares of D1's uncles were purchased by D1. D1 would plead that in deference to his deceased father's wish, he sold the 44 cents of land to D3 and paid the sale proceeds to D2, his widowed sister. I am at loss to understand as to how D1 could do so. Relating to the said 44 cents of land, the said Munusamy Naidu's sons are equally entitled to share, as they being co-parceners along with Munusamy Naidu and on his death, the plaintiffs and D1 are entitled to their shares and the share of Munusamy Naidu only would devolve upon all the legal heirs, so as to say his sons and daughter. Hence, the contention of the defendant relating to the alienation of the 44 cents of land, which his father got in the partition, could not be countenanced and upheld as tenable under the law. However, in view of my above finding based on release deeds, the plaintiffs cannot claim share in any part of the first item of the suit properties also.
32. The learned counsel for the plaintiffs would contend that apart from items 1 to 4 and item 7, the other lands also were acquired by the joint family from out of the joint family income. It appears item 7 - a tiled house, was sold admittedly on consent of all co-sharers. It is submitted by both sides that item 11 of the suit property is beyond the controversy in the suit. The learned counsel for the plaintiffs would further submit that Ex.B5 the sale deed dated 15th June 1949 relating to 8th item of the suit properties even though would stand in the name of the first defendant as purchaser, the said property was purchased from out of the joint family income. The learned counsel for the first defendant would correctly and convincingly argue that in the absence of any evidence to show as to what was the income derived from the alleged joint family properties, there could be no presumption that the 8th item of the property purchased by the first defendant as per Ex.B5 could be construed as joint family property. At this juncture, my mind is redolent with the following decision of the Hon'ble Apex Court reported in (i) AIR 1954 SC 379 (Srinivas Krishnarao Kango vs. Narayan Devji Kango and others). An excerpt from it would run thus:
"8. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.
10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case.
Where the finding of the Courts is that the income from the ancestral lands was not sufficient even for the maintenance of the members, and the houses in dispute are substantial, burden is on the plaintiff who alleges the houses to have been acquired out of joint family funds, to establish it.
Held that if the contention that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds,that burden had been discharged.
Likewise, it was held that since the ancestral Watan lands are intact, and were available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family, whether it were held that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result was the same."
33. From the perusal of the above said decision it is crystal clear that onus of proof is on the co-parcener who contends that even though a particular property as per a sale deed stands in the name of co-parcener, nonetheless, it belongs to the joint family. Here, absolutely there is no iota or shred of evidence to highlight that the 8th item of suit properties was purchased by the first defendant from out of the joint family funds. It is also not clear from which point of time, items 2 to 4 of the suit properties were under the joint family possession and cultivation and what was the income derived from it. No Adangal Extract or other details relating to cultivation and income derived have not been produced by the plaintiffs. There is no clear averments also as to how those lands were cultivated etc. Hence in such a case, it cannot be held that 8th item of the suit properties happened to be the property of the joint family.
34. Only relating to first item of the suit property there is clear indication that the property was in the possession of the joint family and that too in the joint family comprised of said Munusamy Naidu and his brothers and also the fact remains that only relating to 44 cents of land, Munusamy Naidu and his sons were in possession and enjoyment. By no stretch of imagination it could be construed that from out of the income derived from 44 cents of land, any worthy property could have been purchased. Similarly, in respect of acquisition of other items, absolutely there is no evidence adduced on the side of the plaintiffs that those items were acquired by the first defendant from out of the joint family income.
35. On the defendant side also several exhibits have been marked as set out in the list of documents appended to the judgment of the lower Court so as to highlight that the first defendant was having his own business and that his wife acquired properties also. Even though the learned counsel for the plaintiffs would argue that no evidence has been produced from the Commercial Tax Department or from any other authority so as to demonstrate how much he was earning, nevertheless, the plaintiffs on whom the burden lies to prove that the acquisitions by the first defendant were from out of the joint family property, have not adduced any evidence. The learned counsel for the plaintiffs also would argue that the first defendant had several daughters and in such a case, he could not have saved income and purchased the properties, for which the learned counsel for the first defendant would correctly submit that there could be no presumption that because he had several daughters, he might not have had income to purchase those properties.
36. A perusal of the release deeds would also highlight one other point that executants clearly and categorically averred to the effect that the properties were acquired by the first defendant by his own effort. Had really been those properties were acquired from out of the joint family income, they would have atleast spelt out those facts, but they did not do so. Hence in such a case, it is clear that there is no proof that the properties were acquired by the first defendant from out of the joint family income. Even though the fact remains that the first defendant sold 44 cents of joint family property as per him as desired by his father and gave the sale proceeds to the second defendant/D1's widow sister without obtaining any prior written permission from other co-sharers, namely the plaintiffs, yet in view of the release deeds executed by the plaintiffs they cannot lay claim over the said 44 cents of land in the first item. Regarding the remaining portion in the first item and other suit items which the first defendant purchased, there is no proof that the same were purchased by him from out of the joint family income. Accordingly point Nos.2 and 3 are answered.
POINT NO:4:
37. In view of the reasons adhered to in deciding the aforesaid points, au courant with facts, this Court cannot deprive D3 to D7 being the alienees of whatever rights they have acquired in the suit properties.
POINT NOS.5 & 6:
38. In view of the reasons set out au fait with law in deciding the aforesaid points, I could see no merit in the appeal warranting interference with the judgment and decree of the trial Court and accordingly the same are confirmed and the appeal is dismissed. However, there shall be no order as to costs.
Msk/gms 22.08.2008
Index : Yes/No
Internet: Yes/No
To
The Subordinate Judge, Vellore
G.RAJASURIA,J.,
gms
Pre-delivery judgment in
A.S.No.804 of 1999
22.08.2008