Madras High Court
S. Chinnayyan And Ors. vs C. Chithambaram And Ors. on 15 December, 1992
Equivalent citations: (1993)2MLJ41
JUDGMENT Abdul Hadi, J.
1. The defendants are the appellants in this second appeal arising out of a suit for partition. In this second appeal, this Court is concerned only with items 1 and 8 of the suit properties.
2. With reference to item No. 1, as against the claim of the defendants that the plaintiffs' suit was barred since Ex.A-6=(Ex.B-1) mortgage dated 22.11.1089 ME (=27.11.1914 A.D) in favour of the 1st defendant's mother was not redeemed at all, the trial Court has held that suit item No. 1 was not the subject matter of Ex.A-6 at all and has granted decree for half share therein to the plaintiffs. No doubt, the lower appellate Court did not meet this finding of the trial court by any discussion, but it held that Ex.A-6 mortgage did not take effect and that, therefore, the defendants are not entitled to any right under the said mortgage. Thus holding, the lower appellate court concurred with the trial court with reference to item 1 and granted decree to the plaintiffs for the abovesaid half share therein.
3. Initially, the learned Counsel for the appellants drew my attention to paragraph 9 of the lower appellate court's judgment and sought to contend that the lower appellate court also has dealt with the question whether the suit item 1 is the subject matter of Ex.A-6 mortgage. In the said paragraph 9, it is stated that Ex.B-10, another later mortgage executed by the 1st defendant in favour of his son Esakki refers to Ex.B-1 and that direction was given in Ex.-B-10 for redeeming Ex.B-1. But the learned Counsel for the respondents took me through Ex.B.10 and pointed but that Ex.B-10 has nothing to do with Ex.B-1 or suit item No. 1, which is in S. No. 2425. Ex.B-10 refers to other survey numbers, but not the abovesaid S. No. 2425. Therefore, I also agree that the lower appellate court has factually erred in this regard. The net result is, the lower appellate court has not expressly referred to the finding of the trial court that Ex.B-1 does not relate to the suit item No. 1 at all. The trial court also has given various reasons in paragraph 12 of its judgment for coming to the said conclusion and the learned Counsel for the appellants also could not assail the said finding. It is also clear that Ex.B-1 does not relate to the suit property. Therefore, the defendants cannot claim exclusive right in item No. 1 and hence, the decree that has been passed in favour of the plaintiffs by both the Courts below with reference to item No. 1 cannot be disturbed.
4. With reference to item No. 8, the trial court granted 1/4th share to the plaintiffs and 3/4th share to the 1st defendant. But, the lower appellate court granted each half share. Now, the defendants-appellants claim that the judgment of the trial court should be restored. This controversy can be understood if the genealogy of the parties is make known. The original ancestor senior Aundi had two sons, viz. Junior Aundi and Suppandi and the plaintiffs are paternal grandsons of junior Aundi. The 1st defendant is the son of the abovesaid Suppandi. Item No. 8 stands in the name of senior Aundi and Suppandi, it having been purchased by both of them in about the year 1902. According to the trial court, it is not the joint family property of the family of senior Aundi, but separate property of both senior Aundi and Suppandi, each having half share therein. To come to this conclusion, the trial court relied on the document relating to the earlier settlement proceeding that took place with reference to the said property. The trial court observes that the said property. The trial court observes that the said document Ex.B-6 shows that all the three persons,, viz., senior Aundi, Suppandi and junior Aundi had categorically admitted that this item was, purchased by senior Aundi and Suppandi. The said purchase is borne out by Ex.B-8. So, according to the trial court, the first defendant, the son of Suppandi would get half share of his father Suppandi and another 1/4th share from senior Aundi out of the remaining half share, and the balance 1/4th share alone would go to the plaintiffs' branch. But, the lower appellate court has held that item No. 8 is the joint family property of the family of senior Aundi and his sons and that hence, the 1st defendant would get 1/2 share and the balance 1/2 share would go to the plaintiffs. But, the learned Counsel for the appellants contends that the lower appellate court did not consider the above referred to statement made by junior Aundi in Ex.B-6 at all. According to him, if that statement is taken into account that would amount to an admission by junior Aundi that the property purchased under Ex.B-8 viz., the abovesaid item No. 8 is only the separate property of the abovesaid two purchasers, viz., senior Aundi and Suppandi. He also argues that there was no plea or proof regarding the existence of joint family nucleus having sufficient income to enable the abovesaid property to be purchased for the joint family in the name of Suppandi and senior Aundi. In this connection, he also relies on the decisions in K. Obul Reddy v. B. Venkata Narayana Reddy and Ranganayaki Animal v. Srinivasan . On the other hand, the learned Counsel for the respondents submits that the allegations made in the plaint would amount to the abovesaid plea. Further, he also drew my attention to the following passage in Mulla's Hindu Law, sixteenth edition at page 260, which cites Srinivas v. Narayan , as authority for the said passages:
Where, however, the existence of the nucleus is shown and no other source of income is disclosed, the presumption may be made that the nucleus was sufficient to enable the property to be acquired.
5. In the above referred to K. Obul Reddy v. B. Venkata Narayana Reddy , it was held that in the absence of any pleadings and any issue, there could be no finding that the properties were joint family property. On going through the present plaint, I am also unable to find the plea of nucleus of sufficient income as above stated. Anyway,' even assuming that there is only imperfection in pleading in this regard, I find that there is no proof of the same. Admittedly suit item Nos. 4, 5 and 9 are joint family properties. They could no doubt form the nucleus. However, there is no proof of the income from any nucleus, sufficient enough for the purchase of the abovesaid item 8 property. This proof is absolutely necessary as laid down in Ranganayaki Ammal v. Srinivasan . Otherwise, item No. 8 cannot be treated as joint family property. Even in Mudigonda v. Ramachandra , it has been held that only when adequate nucleus is shown, the burden shifts on to the member in whose name the property stands, so that he could show that he acquired the property without any aid from the joint family assets. Even in the above referred to Srinivas v. Narayan , it has been held that the proof of existence of a joint family does not lead to the presumption that the property held by any member of the family was joint and the burden rests upon any one asserting that any item of property was joint, to establish the fact. It has been further held that only 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. In view of the fact that there is no evidence in the present case regarding the income from the nucleus, the abovesaid item No. 8 cannot be held to be the joint family property.
6. No doubt, the statement in Ex.B-6 by junior Aundi cannot be taken as an admission on his part that item No. 8 was only the separate acquisition of senior Aundi and Suppandi. However, since there is no evidence about the income from the admitted nucleus, item No. 8 is necessarily to beheld as the separate property of senior Aundi and Suppandi. Therefore, in my view, the lower appellate court has committed a substantial error of law in this regard.
7. In the result, the judgment and decree of the lower appellate court, in so far as item No. 8 alone, are set aside and this second appeal is allowed in part to the above extent, that is with reference to item No. 8 alone. However, in the circumstances of the case, there will be no order as to costs.