Madras High Court
Gowri Ammal And Another vs Vaithilingam (Decd.) And 10 Others on 18 June, 2001
ORDER
1. The unsuccessful plaintiffs before the courts below have filed this second appeal.
2. The plaintiffs filed a suit in O.S.No.26 of 1983 on the file of the Sub-Court, Cuddalore for partition of 1/5th share in item Nos. 1 to 13 and 2/5th share in item Nos. 14 to 19 of the plaint schedule properties, and also for 2/5th share in the 'B' schedule jewels.
3. The plaintiffs are the daughters of the 1st defendant. According to them, the 1st defendant, their deceased brother Ramalingam and their father were members of the Hindu joint family. Items 1 to 4 are the ancestral properties of the 1st defendant and items 5 to 13 were acquired with the aid of the ancestral nucleus and treated as joint family properties. Items 15 to 19 of the A schedule properties were also purchased by their mother Anjalai Ammal from out of her own funds in her name. It is the case of the plaintiffs that item No.14 was purchased by their mother with her own funds for her benefits, but in the name of her son Ramalingam. On that basis the plaintiffs have come forward with the above suit.
4. The defendants contested the suit contending inter alia that items 1 and 3 alone were the ancestral properties, that the income from the ancestral properties was not even sufficient to maintain the family and therefore there was no surplus income to acquire the other properties and that the other items were acquired by the 1st defendant from out of his own funds without the aid of the joint family nucleus. With respect to item 14, it is the case of the defendants that the same was purchased though in the name of Ramalingam or in the name of Anjalai but only from out of his earnings and so all the properties exclusively belong to the 1st defendant.
5. The trial court has found that items 1 to 4 are ancestral properties. With respect to items 6 to 13 it was found that the same were acquired by the 1st defendant out of his own income, and they are the separate properties of the 1st defendant. With respect to item 14 it was held that the same was purchased in the name of Ramalingam by the 1st defendant for the benefit of Ramalingam. With respect to items 15 to 19 it was held that they were separate properties of Anjalai Ammal. With regard to the jewels it was found that the same were not available. On that basis the trial court has granted a preliminary decree for partition of plaintiffs 2/10th share in items 1 to 5, 2/5th share in items 14 to 19.
6. So, the plaintiffs filed appeal in A.S. No.86 of 1985 on the file of the District Court, South Arcot at Cuddalore. The defendants filed Cross Objection with respect to items 2,4,5 and 14 to 19. The lower appellate court concurred with the findings of the trial court with respect to items 1 to 4 holding that they are joint family properties. While dealing with item 5, the lower appellate court reversed the judgment of the trial court and held that it is the separate property of the 1st defendant. With respect to item 14, the lower appellate court has held that the said property was purchased in the name of Ramalingam by the 1st defendant for his benefit. With respect to items 6 to 13 and 15 to 19, the lower appellate court has confirmed the judgment of the trial court. With respect to the building in item 15, the lower appellate court has held that the plaintiffs are not entitled for the building portion. With reference to 'B' Schedule properties, the lower appellate court has allowed the appeal. The lower appellate court has also allowed the cross objection insofar as items 5 and 14 and the building in item 15. Hence the appellants plaintiffs have filed this second appeal.
7. The substantial questions of law that arise for consideration in this second appeal are:-
(1) Whether on the fads, the presumption that the properties acquired from and out of joint family funds, partake the character of joint family properties, is applicable?
(2) Whether, with reference to items 5 to 14, the 1st defendant had established that those items are his self-acquisitions and therefore not available for partition?
8. We are only concerned in this second appeal regarding items 5 to 14 and the building in item 15.
9. With reference to item 14, it is the case of the plaintiffs that the same was purchased in the name of Ramalingam from out of the funds of Anjalai, their mother. On the other hand, according to the defendants, the same was purchased by the 1st defendant for his benefit, in the name of his son Ramalingam. The learned counsel appearing for the appellants has submitted that the burden is on the 1st defendant to prove that item 14 was purchased from out of his funds and for his benefit, as the same was purchased in the name of his son. He has also submitted that even assuming that the same was purchased by the 1st defendant, it was actually purchased only for the benefit of Ramalingam and so the plaintiffs are entitled to shares in the said property, I am not able to agree with the said submission. It is not the case of the appellants/plaintiffs that the poverty item 14 was purchased for the benefit of the said Ramalingam. They have come forward with the specific case that the said property was purchased by their mother for net benefit. The lower appellate court, on going through the evidence has found that the same was purchased by the 1st defendant while Ramalingam was 7 years old, and, there is no evidence available to show that the said Ramalingam had any other property to get income to pay the consideration for the said purchase. The trial court also has found that the said property was purchased by the 1st defendant, but found that it was purchased with the intention to give the same to the 1st defendant's son, Ramalingam. Even according to the plaintiffs, the said property was not purchased for the benefit of the said Ramalingam, but for the benefit of the person who purchased the same. In view of the said factual findings of the trial court, and the lower appellate court as modified, I am not able to accept the case of the appellants regarding this item No. 14.
10. So far as item Nos.6 to 13 of the suit properties are concerned, both the courts below have concurrently found that the 1st defendant could not have acquired the same from out of the income of ancestral properties because there is no possibility for any surplus income from the ancestral nucleus. The same finding has been adopted by the lower appellate court to hold that item No.5 also is a separate property of the 1st defendant. The said properties were purchased from the year 1953 under Exs.A1 to A9. It is also not in dispute that all the said documents are in the name of the 1st defendant.
11. The learned counsel appearing for the appellants has submitted that since the plaintiffs were able to establish the existence of the ancestral nucleus, the presumption is that the properties are the joint family properties, unless the same is rebutted saying that the 1st defendant had separate funds to acquire those properties. While meeting out this argument, the learned counsel appearing for the respondents has submitted that such a burden of proof has to be shifted to the 1st defendant, only if the plaintiffs are able to establish that there was sufficient income from the ancestral properties so as to enable the 1st defendant to purchase the same. In this case, according to the learned counsel for the respondents, the appellants/plaintiffs have not established the availability of surplus income from the joint family nucleus. On that basis, the learned counsel for the respondents has further submitted that the lower appellate court is correct in holding that items 5 to 13 and the building in 15th item are the self-acquired properties of the 1st defendant. She has also submitted that the lower appellate court on going through the evidence available on record has found that the income of the joint family properties were hardly sufficient to maintain the family and there could not have been any surplus income from the ancestral property, and the 1st defendant had earnings separately to purchase the said properties. It is the further submission of the learned counsel for the appellants that Exs.B4 to B6 were relied on by the defendants to show that the 1st defendant has purchased some of the items of the property on borrowed amounts mentioned in the said documents. The said documents would disprove the case of the defendants as the said documents are subsequent in point of time. Even with reference to the monthly salary of Rs.50, he has submitted that the 1st defendant has started to earn that money only in 1965. On that basis the learned counsel has further submitted that the courts below have not properly appreciate the documents and evidence available on record before holding that the 1st defendant has sufficient income to purchase the said properties.
12. In support of his submission, the learned counsel appearing for the appellants has relied on the decision in M. Krishnan v. Ramaswami, 1984 (97) L.W. 406 (part 27), Sankaranarayanan v. Official Receiver, Tirunelveli, Sethuraman, J., as he then was, while considering the issue regarding the onus of proof, regarding the property acquired by Karta in the decision in Sankaranarayanan v. Official Receiver, Tirunelveli, , has held as follows:-
"In the present appeal, by the unsuccessful plaintiffs, the first submission is that the conclusion of the courts below that item 2 of the plaint schedule properties was not a joint family property is wrong. The learned counsel brought to my attention the decision of the Supreme Court in Mallesappa v. Mallappa, . In that case, it was laid down that where a manager of a joint family claims that any immovable property had been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it was for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof must in such a case, il was held, be placed on the manager and not on his coparceners."
13. Similarly, in the decision in M. Krishnan v. Ramaswami, 1984 (97) L.W. 406 (part 27), it is held as follows:
"11. In this conneclion, it will be apposite to refer to two other decisions where the facts are more akin to the case on hand then the decisions cited by Mr. Jagadeesan. M. Bondeppa Desai v. Desai Mallappa, 1962 (2) M.L.J. 154, is a case where an item of property had been purchased by the manager of a joint family in his personal name. The bone of contention in that case was that the item of property was also a joint family property. Naturally the question arose regarding the burden of proof and the degree of proof required to establish the claim that the property was joint family property. The Supreme Court held as follows:-
"The onus of proof must in such a case be placed on the manager and not on his coparcener."
It was further observed that "where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate funds. "The above ratio has been applied by a Division Bench of this Court in Ramiah and another v. Pechiammal and others, 1977 T.L.N.J. 7, and the Division Bench held that if the properties are acquired by the Manager of a Hindu joint family in his name and such acquisition had been made in the course of his management as manager of the joint family, then the burden shifts on him to establish that such properties are his own and they are not joint family properties. The ratio contained in the above two decisions will directly apply to the facts of the instant case."
14. But, the Division Benches of this Court have taken different views regarding the said issue. In the abovesaid decisions, the learned Judges have come to the conclusion that if the existence of joint family nucleus is established, then the onus should be shifted on the manager to establish that the property was purchased by him out of his set-earnings, and not with the help of joint family funds of which he was in possession. But, in the decisions cited hereunder two of the Division Bench of this Court have held that mere existence of nucleus is not the sole criterion to come to the conclusion that the said acquisition by the karta of the joint family is having family character, but it should be established that the family had sufficient surplus income from the said nucleus so as to enable the karta to acquire the properties.
15. This view has been taken in the decision in Ramakrishna v. Vishnumoorthi, , in which it is held as follows:-
"5. The proposition of taw is well, established that it is not enough to show that the family had a nucleus of the family property in order that the later acquisitions made by the manager of the family should have the attribute of family character but what is necessary is that the nucleus must be such as to leave sufficient income therefrom after meeting the expenses as would enable the manager to acquire properties with that. So far as this question is concerned, the only witness examined on behalf of the plaintiff, does not render such useful aid for he is not a member of the family and he could not depose with regard to the actual income from the admitted family properties."
16. Again, in the decision in Kandaswami Chettiar v. Gopal Chettiar, 1975 (II) M.L.J. 184, after considering the Supreme Court decisions on the issue, including the decision in Mallesappa v. Mallappa, , which had been referred to by the learned single Judge in he abovesaid decision, the Division Bench of this Court had held as follows:-
"17. .... If a co-parcener desires to establish that a property in the name of a female member of the family or in the name of the manager himself has to be accepted and treated as property acquired from the joint family nucleus, it is absolutely essential that such a co-parcener should not only barely plead the same, but also establish the existence of such joint family funds or nucleus. Even if the joint family nucleus is so established, the presumption that the accretions made by the manager or the purchases made by him should be deemed to be from and out of such a nucleus does not arise, if there is no proof that such nucleus of the joint family is not an income-yielding apparatus. The proof required is very strict and the burden is on the person, who sets up a case that the property in the name of a female member of the family or in the name of the manager or any other co-parcener is to be treated as joint family property. Such burden could be said to have been discharged and the usual presumption that such acquisitions are attributable to the joint family nucleus and its income would not automatically arise, but would depend upon proof of the availability of such surplus income or joint family nucleus on the date of such acquisition or purchases. The same is the principle even in cases where moneys were advanced on mortgages over immovable properties. That such a presumption would arise only in the above circumstances, are now very well established."
17. The above cited decisions of the Division Benches of this court have been followed by the learned single Judge of this Court in the decision in Amirthalingam v. Uthayathamma and others, 1999 (2) L.W. 713, and it is held that mere existence of nucleus alone is not enough and it must be proved that there was surplus income for purchase of other properties and the same must be in the hands of managing member.
18. In view of the abovesaid settled principles of law as held by the Division Benches of this Court, if the existence of the joint family nucleus is established, the burden would shift on the manager to establish that he purchased the property from out of his self-earnings cannot be accepted. So, the person who claims that the property in the name of the manager of the joint family is the joint family property, has to establish not only the existence of nucleus of joint family but also the availability of surplus funds of the family from the nucleus during the time to purchase of the said property.
19. In this case, the availability of surplus funds has not been established. The concurrent findings of the courts below are that there is no possibility of any surplus income from the ancestral nucleus. Since the plaintiffs have not established their burden, the question of shifting the burden on the 1st defendant to establish that he purchased the property from out of his self-earnings will not arise.
20. The learned counsel appearing for the appellants alternatively has submitted that the 1st defendant died intestate on 22.9.97 and so he is entitled to a decree for partition on that basis. The appellants filed a memo to that effect as early as on 16.10.97. But, only when the case was taken up for hearing a memo on behalf of the legal representatives was filed stating that the 1st defendant executed a will on 31.3.1990 leaving all his properties to the respondents 7 to 9, his second wife and the children through her, and so the share of the deceased devolves on those persons. But, unfortunately, the said will was not marked as document before this Court, though a copy is produced. In the absence of any such documentary evidence, this court cannot take cognizance of the said will to decide the issue in question.
21. For the reasons stated above, the appellants are entitled to 1/7th share each in item Nos. 5 to 14, and also the building in item No. 15. In view of the death of the 1st defendant, the appellants/plaintiffs are entitled to 1/7th share, in addition to the shares allotted to them by the courts below, in the other suit properties. With the above modification, this second appeal is allowed partly. No costs.