G. Kumar vs Samuthiradevi and Another

S. Manikumar, J.—Ms. D. Samudhiradevi and Mr. G. Sugumar, are the plaintiff and defendant respectively in the suit in O.S. No. 20 of 2005, filed for a direction to the defendant, to execute a sale deed, in favour of the plaintiff, in respect of the suit property, as per the agreement of sale, dated 3.10.2002, and to register the same, on receipt of the balance of sale amount of Rs. 5,00,000/- and in case, if the defendant fails to do so, the Court shall execute a valid sale deed, and to register the same in favour of the plaintiff, as specific performance of the contract and consequently, to direct the defendant, to deliver possession of the suit property to the plaintiff, in entirety or in the alternative relief, to direct the defendant (second respondent) to pay a sum of Rs. 4,32,000/- with interest at the rate of 12% per annum. After filing the written statement, the defendant remained ex parte. Thereafter, upon hearing the arguments of the plaintiff and perusing the documents, the learned Principal District Judge, Nagapattinam, by judgment and decree, dated 5.7.2007, has passed the following orders:

(1) That the plaintiff do deposit in the Court within two months from the date of balance of sale consideration of Rs. 5,00,000/-.

(2) That the defendant within a month from the date of deposit of balance of sale deed, as stated above to execute a sale deed in favour of the plaintiff in respect of the suit property described hereunder.

(3) That on the failure of the defendant to execute the sale deed as stated above, this Court to execute the sale deed on his behalf and get it registered.

(4) That the defendant to pay to plaintiff a sum of Rs. 78,910/- towards cost of the suit.

Execution Petition in E.P. No. 4 of 2008 has been filed by the Decree Holder. As the defendant failed to execute the sale agreement, the Court below has executed the sale deed on 13.10.2009. Thereafter, Mr. G. Kumar, brother of the defendant, has filed E.A. No. 5 of 2011 in E.P. No. 4 of 2008, to recall the warrant made in E.P. No. 4 of 2008 in O.S. No. 20 of 2005. Counter affidavit has been filed by the decree holder. Thereafter, E.A. No. 6 of 2012, has been filed by him under Order 21 Rules 97, 98, 101 read with. 151 CPC, contending inter alia that he has a right, title and interest over the suit property and consequently, to hold that the ex parte decree, dated 5.7.2007 and the subsequent execution of sale deed, dated 13.10.2009, as null and void, and not binding on him.

Facts leading to the appeal are as follows: The appellant and the second respondent are brothers and sons of late N. Gnanasekaran. The said N. Gnanasekaran along with his younger brother, Mr. N. Sait and Mother, Ms. Thailammai, have divided the ancestral family properties, subsequent to the demise of their father, Natesa Chettiar and as per the customary practice, as between the legal heirs of Natesa Chettiar, a document, dated 28.7.1990, has been executed, under the name and style of a partition agreement, evidencing the previous partition that took place between them. Pursuant to the partition, Mr. G. Kumar, the appellant herein, was allotted ''B'' Schedule properties, which constitute several shop buildings, lodges, complex, Natesh theatre, agricultural lands and other moveable and immovable properties. The income derived out of the ancestral properties, allotted towards the share of N. Gnanasekaran, was enormous. After the separation of the status between the two brothers, N. Gnanasekaran and N. Sait, the former along with his sons and daughters, continued to possess and enjoy the properties obtained by him, in the partition, as joint family ancestral properties of his branch and maintained all the properties, as the head of the family. He died on 11.7.1997.

The appellant has further submitted that from out of the income derived from the ancestral properties, his father, Late N. Gnanasekaran, has purchased a vacant site, subject matter of the suit and constructed a storeyed R.C.C. building for the benefit all the co-owners. Mr. G. Sugumar, the second respondent started residing in the upstairs, bearing old Door No. 43 C/2. According to him, since the purchase and construction of the building was made, as per the wishes of the late N. Gnanasekaran (father of the appellant), the entire house building came to be assessed, in his name and that he was paying taxes to the said building, under two assessment Nos. 9738 and 9739.

According to the appellant, though the site was purchased in the name of the second respondent, Mr. G. Sugumar, through two registered sale deeds, dated 1.10.1992 and 22.4.1994, the second respondent was only a name lender and that the building does not belong to him and therefore, the appellant has submitted that the second respondent has no authority to execute an agreement of sale, dated 3.10.2002 to the first respondent, Ms. Samuthiradevi, to sell the suit property, for a sale consideration of Rs. 8,20,000/-. The appellant has further submitted that the execution of the sale agreement does not create any interest or title, in favour of the first respondent, to give rise to a cause of action, for filing a suit in O.S. No. 20/05 on the file of the District Court, Nagapattinam, for the relief of specific performance.

The appellant has further contended that he was not aware of the ex parte decree, dated 5.7.2007 and the registration of the sale deed, made in favour of the first respondent, through Court on 13.10.2009, by way of execution in E.P. No. 4 of 2008 and that he came to know about the same only, when the first respondent has come to take physical delivery of the property, through Court. The first respondent, Ms. Samuthiradevi, has filed an application for police protection and other help, for securing delivery of the suit property, agreed to be alienated, with the collusion of the second respondent.

The appellant has further submitted that taking advantage of the sale deeds, dated 1.10.1992 and 22.4.1994, which stood in the name of the second respondent, he has entered into an agreement of sale, dated 3.10.2002 with the first respondent. He has also submitted that there is no division of property by metes and bounds, as between the 10 legal heirs of the deceased, N. Gnanasekaran and therefore, the second respondent cannot claim any exclusive right or title over the suit property. In the above said circumstances, the appellant has filed the petition under Order 21 Rules 97, 98, 101 and 151 CPC, to declare the execution of the sale deed, dated 13.10.2009, as null and void and not binding on him and also to set aside the decree.

The first respondent, Ms. Samuthiradevi, agreement holder, has denied the contention that the appellant is a Co-owner of the suit property. According to her, the appellant was probably put in possession of the building, bearing door No. 43C/1, with some understanding between the appellant and the judgment Debtor, the second respondent, who is none other than the brother of the appellant. She has further submitted that when the appellant himself stood as an attestor in the sale agreement, dated 3.10.2002, executed by Mr. Sugumar, second respondent, in her favour, it is not open to him to plead ignorance of the fact of the agreement of sale and the subsequent proceedings. She has also submitted that the second respondent, Mr. G. Sugumar, has filed a written statement in the suit, wherein, he has contended that the suit property exclusively belongs to him.

The first respondent, decree holder has further submitted that the earlier sale deeds, dated 1.10.1992 and 22.4.1994, registered in the name of the second respondent, Mr. G. Sugumar, marked as Exhibits B-5 and B-6, would go to show that only the second respondent is the absolute owner of the suit property. Filing of an application in E.A. No. 6 of 2012 in the execution proceedings is purely an after thought, in order to avoid the decree holder from taking possession of the suit property. The properties are not in possession and enjoyment of all the members of the family, as joint family properties and in fact, the appellant has claimed that a theatre, by name Natesh Theatre, situated on Nethaji Road, Thiruvarur, worth several crores of rupees, as his own property. He has never treated the above said theatre, as the joint family property nor willing to give it to any of his brothers or sisters or any other family members. According to her, the mere assertion of the appellant that the theatre exclusively belongs to him, would go to show that the properties are not held as joint family properties and enjoyed by all the members of the family.

Refuting the contention that the suit property has been purchased from out of the income derived from the joint family properties, the first respondent has further submitted that the contentions made in the application under Order 21 Rules 97, 98, 101 read with 151 CPC, filed for the relief sought, stated supra, is only to prevent her from taking possession of the suit property, as per the decree passed by a competent Court. She has alleged collusion between the appellant and the second respondent, who are brothers. She has further submitted that the documents, Exhibits P4 to P11, marked by the appellant in E.A. No. 6 of 2012, would not create any right, title or interest over the petition mentioned properties and that they are only self-serving.

The first respondent has further submitted that she has already caused a lawyer''s notice to the appellant on 17.1.2011, informing him about the earlier Court proceedings and also called upon him to deliver vacant possession of the building, in his occupation at Door No. 43/C1. Though the appellant had received the lawyer''s notice on 18.1.2011, he did not send any reply. In the above said circumstances, the decree holder has submitted that the application filed by the appellant for upholding the right, title and interest over the suit property and the subsequent execution of the sale deed, dated 13.10.2009, as null and void, lacks bona fide She has further submitted that the agreement of sale between the 1st and 2nd respondent was entered into, on 3.10.2002, and that the present petition filed after nearly 10 years, is nothing but a cooked up case, set up at the instance of the judgment debtor with the collusion of his brother, Mr. G. Kumar, appellant herein. For the above said reasons, she has prayed to dismiss the appeal.

The appellant examined himself as P.W.1. One Thiru. S. Senthilnathan, has been examined as P.W.2. Exhibit P-1 - Death Certificate, Exhibit P-2 - Legal Heir Certificate, Exhibits P-3 to P-10 - House Tax Receipts for Door Nos. 43 C1 and 43 C2, Exhibit P-11 - Income Tax Pan Card, Exhibit P-12 - Bank Pass Book of Vijaya Bank, Exhibit P-13 - Priya Gas Agency Book, Exhibit P-14 - Voters ID Card, Exhibit P-15 - Family Card, Exhibit P-16 - Unregistered Sale Agreement and P17 - Valuation Report have been marked on the side of the appellant. The first respondent examined herself as RW. 1 and marked Exhibits B1 - Sale Agreement, Exhibit B-2 - Sale Deed, Exhibit B-3 - Acknowledgement Card, Exhibit B-4 - Advocate''s Notice, Exhibits B-5 and B-6 - Sale Deeds, Exhibit B-7 - Sale Agreement, Exhibit B-8 - EB Receipt, Exhibit B-9 - Plaint in O.S. No. 20 of 2005, Exhibit B-10 - Written Statement in O.S. No. 20 of 2005, Exhibit B-11 - Patta Transfer Order, Exhibit B-12 - Name transfer in the Property Tax Assessment for Door No. 43 C1, Exhibit B-13 - Name transfer in the House Tax Assessment for Door No. 43 C2, Exhibit B-14 - Sale Deed in E.P. No. 4 of 2008, Exhibit B-15 - Decree copy in O.S. No. 20 of 2005, and P16 - Inam Settlement Deed. Upon consideration of the pleadings and evidence, the lower Court has framed the following point for consideration,

(i) Whether this application has to be allowed or not?

Upon evaluation of pleadings and evidence, the Court below has dismissed the application, filed by the appellant and the said order is impugned in this appeal.

Assailing the impugned order, referring to the pleadings and documents marked on the side of the appellant, Mrs. Sangamithrai, learned counsel for the appellant submitted that the Court below has failed to consider that the suit property was purchased from out of the income, derived from the joint family properties. She has further submitted that the Court below has failed to afford a reasonable opportunity to be appellant before the execution of Exhibit P-14, Sale Deed, dated 13.10.2009. According to her, there was a failure on the part of the Court below, to consider the evidence adduced by both the parties in proper perspective. For the above said reasons, the appellant has prayed for setting aside the impugned order.

Per contra, to sustain the impugned order, Mr. B. Ramamoorthy, learned counsel for the first respondent/decree holder submitted that all the contentions raised by the appellant, have been carefully and extensively considered by the Court below, while rejecting the petition. Taking this Court to the plaint averments made in O.S. No. 20 of 2005, on the file of the District Judge, Nagapattinam and the written statement filed by the judgment debtor/second respondent, learned counsel for the first respondent/decree holder submitted that even in the written statement, Mr. G. Sugumar, second respondent, has categorically admitted that the suit property, exclusively belongs to him. He has executed Exhibit B-7, dated 3.10.2002, agreement of sale, agreeing to sell the schedule mentioned property for value of Rs. 8,20,000/- and pursuant to the same, received a portion of the sale consideration. Though the agreement holder was ready and willing to perform her part of the contract, by paying the balance sale consideration and also caused a notice, dated 29.4.2003, to the second respondent and despite acknowledging the same, the second respondent has refused to execute the sale deed, thus, warranting the first respondent, to institute a suit in O.S. No. 20 of 2005, on the file of the District Judge, Nagapattinam, for specific performance.

Learned counsel for the first respondent has further submitted that after filing the written statement, wherein, the defendant/second respondent had clearly admitted that the suit property exclusively belong to him, the second respondent remained ex parte. Therefore, after examining the agreement holder, as P.W. 1 and upon perusal of the documents, Exhibit A-1 - Sale Agreement, dated 3.10.2002, Exhibit A-2 - Advocate Notice, dated 29.4.2003, Exhibit A-3 - Acknowledgement Card, Exhibits A-4 and A-5 - Sale Deeds, dated 1.10.1992 and 22.4.1994, filed by the first respondent, the suit was decreed. Thereafter, an execution petition in E.P. No. 4 of 2008 in O.S. No. 20 of 2005, was filed, directing the second respondent to execute the sale deed, and since the second defendant did not come forward to execute the sale deed, this Court in E.P. No. 4 of 2008, executed Exhibit B-14, dated 13.10.2009, a sale deed, in favour of the first respondent. He further submitted that when the judgment debtor himself did not come forward to take any steps to set aside the decree, the appellant cannot maintain a petition, to declare the decree as nullity. For the above said reasons, he prayed to dismiss the appeal.

Heard the learned counsel for the parties and perused the materials available on record.

Before adverting to the rival contentions, this Court deems it fit to consider some of the decisions on the aspect of plea and proof, regarding purchase of properties, from the income, derived from the joint family properties.

(i) In Babubhai Girdharlal Vs. Ujamlal Hargovandas, ,Vwhere Beaumont, Chief Justice had summarised the position on this aspect as follows:

The law, I think, is clearly established that from the existence of a joint family, it is not to be presumed that there is any joint family property. There is no presumption that property which belongs to a member of a joint family is joint family property. The plaintiff in setting out to prove that property ''B'' is joint family property must in the first instance discharge the burden of proving that fact. But it is also established that if there is a joint family, which possesses a nucleus of joint family property, then property acquired by a member of that family is presumed to be a joint family property. But the question arises what is meant by a nucleus. In my opinion the nucleus of joint family property necessary to give rise to the presumption must be family property from which the purchase money for the property in suit might have been derived wholly, or, ''at any rate, in considerable part.....'' It would, I think, be unfortunate if the Court was bound to presume that something had occurred which on the evidence would not possibly have occurred, and if it be shown that the only joint family property existing at the date of the acquisition of the property in suit was of such a nature that it could not possibly have been the means of acquiring the property in suit, then in my opinion the presumption that the property in suit is joint family property does not arise.

(ii) In AIR 1947 189 (Privy Council) , it was observed:

11.........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 is 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.

(iii) In Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, , the Supreme Court cited the aforesaid observation from the decision of the Privy Council with approval and went on to add:

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.

(iv) In K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna Iyer and Others, the Supreme Court stated the law on the subject as follows:

The legal position is well-settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown.

Applying the said judgment to the facts on the hand, it is evident that the appellant has not proved an important fact that when the suit property was purchased by the second respondent, under Exhibit B-5, dated 1.10.1992 and Exhibit B-6, dated 22.4.1994, from one Pappammal, the joint family properties remained intact nor there was any material documentary evidence produced in to prove that the members of the joint family properties were enjoying the properties in common. There was no material to prove that there was any nucleus and from out of the same, the suit property has been purchased. The factum of purchase from out of the joint family properties has not been proved. Upon perusal of the recitals in Exhibit B-5 and Exhibit B-6, Sale Deeds, executed by Pappammal to Mr. G. Sugumar, judgment debtor, the Court below has observed that there was nothing to indicate that the suit property has been purchased from out of the nucleus from the joint family properties. The property is stated to have been purchased from out of the funds of Mr. G. Sugumar, the judgment debtor. The evidentiary value of the sale deeds cannot be assailed, after nearly 17 years, contending inter alia that the property has been purchased out of the income derived from the joint family property.

(v) In V. Srinivasan and Others Vs. Sundaramurthi and Another, , a Division Bench of this Court held as follows:

It is well established that if the property stands in the name of the coparcener of a joint family, mere proof of the existence of the joint family owning some joint family property, does not give rise to any presumption and that it must be established that there was sufficient nucleus of the joint family for purchasing the property which stands in the name of the coparcener.

(vi) In M. Narisimhan Vs. The Deputy Registrar of Co-op. Societies and Others, presumption of the joint family property would arise in such case, only when ancestral nucleus is established. Properties purchased from and out of exclusive fund of the person would be self-acquired property.

(vii) In V R. Deivanai Ammal (Died) and M.K. Ramalingam Vs. G. Meenakshi Ammal, Sivasubramanian and G. Ramasamy , this Court, at Paragraphs 15 and 16, held as follows:

It is a well-established principle of law that where a party claims that any particular item of property is joint family property, the burden of proving that it is so rests on the party asserting it. Where it is established or admitted 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 presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus should be such that with its help the property claimed to be joint could have been acquired. A family house in the occupation of the members and yielding no income could not be nucleus out of which acquisitions could be made even though it might be of considerable value.

In a Hindu joint family, if one member sues for partition on the foot that the properties claimed by him are joint family properties then three circumstances ordinarily arise. The first is an admitted case when there is no dispute about the existence of the joint family properties at all. The second is a case where certain properties are admitted to the joint family properties and the other properties in which a share is claimed are alleged to be the accretions or acquisitions from the income available from joint family properties or in the alternative have been acquired by a sale or conversion of such available properties. The third head is that the properties standing in the names of female members of the family are benami and that such a state of affairs has been deliberately created by the manager or the head of the family and that really the properties or the amounts standing in the names of female members are properties of the joint family. While considering the term ''nucleus'' it should always be borne in mind that such nucleus has to be established as a matter of fact and the existence of such nucleus cannot normally be presumed or assumed on probabilities. The extent of the property, the income from the property, the normal liability with which such income would be charged and the net available surplus of such joint family property do all enter into computation for the purpose of assessing the content of the reservoir of such a nucleus from which alone it could, with reasonable certainty, be said that the other joint family properties have been purchased unless a strong link or nexus is established between the available surplus income and the alleged joint family properties. The person who comes to Court with such bare allegations without any substantial proof to back it up should fail.

(viii) In Savithiri Ammal Vs. Hayaperumal and Another the defendant sold away the property that stood in his name. The sale was questioned by the plaintiff. The defendant contended that there was no joint family property, except a residential house and that the suit property was purchased by him, from and out of his own funds, earned through his avocation as Weaver and from the amounts given by his mother in law. The plaintiff could not establish the existence of nucleus of the joint of family property, prior to purchase of property, in the name of the defendant. In such circumstances, this Court held that burden of proving the property, as self-acquired property would arise only when other person establishes that there existed adequate nucleus of the joint family property. In the reported case, the plea of the plaintiff has been rejected and that the judgments and decrees of the Courts below, dismissing the suit for declaration and recovery of possession, were confirmed in the second appeal. While dismissing the second appeal, this Court has considered a decision of the Apex Court in Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, which is worth reproduction. The Apex Court held as follows:

there is no presumption that a Hindu family merely because, it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in. the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is, however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims, the property as self acquisition to affirmatively make out that the property was acquired without any aid from the ''family estate.

Reverting back to the case on hand, while considering, as to whether, the suit property was purchased out of the income derived from the joint family property and as to whether the ownership of the second respondent, judgment debtor, over the petition mentioned property has been accepted by all the members of the family, upon perusal of the written statement, filed by the second respondent, the learned Principal District Judge, Thiruvarur, has observed that in the suit in O.S. No. 20 of 2005, filed by the first respondent, for the relief of specific performance, the second respondent Mr. G. Sugumar, has filed a written statement, marked as Exhibit B-10, wherein, the defendant/2nd respondent herein, has clearly admitted that the suit property exclusively belongs to him. The Court below has also observed that nowhere in the written statement, the second respondent has stated that the suit property belongs to the members of the joint family, after the death of his father. Thus, it could be seen that when the suit in O.S. No. 20 of 2005, was instituted by the first respondent/agreement holder, against the second respondent, for specific performance, the appellant, younger brother of Mr. G. Sugumar, stated to have been residing in the subject property, has not made any objections. On the contra, in Exhibit B-7, Agreement of Sale, dated 3.10.2002, executed by the second respondent in favour of the first respondent, for value of Rs. 8,20,000/-, the appellant himself has stood as an attestor and the said fact would go to show that the appellant was fully aware of the contents of the agreement of the sale, the ownership of the property sought to be alienated to, by his elder brother, Mr. G. Sugumar.

Exhibit B-4, Notice, dated 17.1.2011 has been issued by the first respondent/decree holder, to both the brothers, appellant and the second respondent, stating that by virtue of the decree in O.S. No. 20 of 2005, dated 5.7.2007, on the file of the learned District Judge, Nagapattinam, the appellant has to surrender vacant portion occupied by him, and that the first respondent-Decree holder has called upon the appellant, to quit and surrender the building portion, bearing Door No. 43/C1, within a period of 15 days from the date of receipt of the notice, for which, the appellant has not sent any reply. As rightly observed by the Court below that if the appellant or any of the members of his family, had any interest or title over the suit property, claiming the same, as one of the joint family properties, then the appellant would have sent a reply to Exhibit B-4, Notice. No reasons have been assigned for not replying to the said notice. Having stood as an attestor to the agreement of sale, Exhibit B-7, acknowledged the lawyer''s notice, Exhibit B-4, the appellant cannot plead ignorance of the agreement of sale executed by his elder brother, Mr. G. Sugumar and contend that he came to know about the institution of the suit, Exhibit B-15, decree passed in the suit in O.S. No. 20 of 2005, Exhibit B-14, sale deed executed by the Court below in E.P. No. 4 of 2008, only when the decree holder, came to take possession of the property. Attestation of the appellant in Exhibit B-1, agreement of sale, estopped the appellant, from denying the contents of the document and the legal implication of such attestation in ordinary prudence, would mean that the attestor having the knowledge of the contents of the document, has signed the document. In the case on hand, there is no denial of attestation by the appellant and consequently, its significance cannot be eschewed, insofar as knowledge of the appellant, as to the contents of the document, Exhibit B-1 - Agreement of Sale.

If the suit property had been purchased from out of the income derived from the joint family properties, first of all, the claimant has to prove that the joint family properties were in the management of the Kartha of the family, possession and enjoyment of the suit property by the members of the family, income was derived from the joint family properties, existence of a nucleus and that the same had been utilised for purchasing the suit property. In support of the contention that the suit property was one of the joint family properties and that the second respondent had no right or authority to enter into an agreement of sale, Exhibit B-7, dated 3.10.2002, P.W.1, Mr. G. Kumar, has adduced oral evidence. Before the Court below, he has admitted in his evidence, that as per Exhibit B-5, dated 1.10.1992 and Exhibit B-6, dated 22.4.1994, viz., copy of the sale deeds that the suit property has been purchased by the second respondent, from one Pappammal, for valid consideration of Rs. 37,500/- and Rs. 12,000/- respectively. Analysing the evidence let in by the appellant, both oral and documentary evidence, the Court below has categorically observed that no evidence has been produced on behalf of the appellant to prove that the sale consideration mentioned in Exhibit B-5, dated 1.10.1992 and Exhibit B-6, dated 22.4.1994, has been paid to the vendor, Pappammal, from out of the income derived from the joint family properties and that the amount mentioned in the above said sale deeds has been paid by the members of the joint family of the appellant, his mother, brothers and sisters. Perusal of the impugned order further shows that no document has been produced by the appellant to prove that the income derived from the joint family properties, said to have been managed by late Gnanasekaran, father of the appellant and the judgment debtor/the second respondent herein, had been utilised for purchasing the suit property.

The appellant, P.W. 1 has also admitted that the plan approval for constructing the building in the suit property has been obtained in the name of his brother, Mr. Sugumar judgment debtor, second respondent and as per Exhibit B-11, dated 13.12.2010, patta has been transferred in favour of the decree holder. Exhibit B-12, dated 16.9.2012, is the property tax assessment transferred and issued in the name of the decree holder, after the change of patta. Exhibit B-13, dated 16.9.2010, is the House Tax assessment, issued in the name of the decree holder, after transfer of patta. Upon perusal of the documents produced by the first respondent/decree holder, the Court below has observed that the property tax assessment receipts, Exhibits P-4 to P-10, in the name of the appellant, have been issued only in the capacity, as remitter of the property tax, for the suit property, as he was residing in the ground floor, in Door No. 43/C1 and therefore, the tax receipts, issued in his name as remitter of tax, would not create any interest or title to prove that it was a joint family property. As rightly observed that mere remittance of tax, by an occupier of a building, would not clothe him any right of ownership to the property. Hence, the Court below was right in discarding the case of the appellant, based on Exhibits P-4 to P-10.

Upon perusal of Exhibit B-11, dated 13.12.2010, order of transfer of patta in original, Exhibit B-12 dated 16.9.2010, name transfer of the property tax, with reference to the property in Survey No. 43/C1, Exhibit B-13, dated 16.9.2010, name transfer order of house tax, with reference to the property in 43/C2, the Court below has also observed that if the suit property was also one of the joint family properties, or as jointly owned by the brothers, then, it would not have been possible for the first respondent/decree holder, to get the transfer of property tax assessment in her name, without the consent of the appellant. The Court below has further observed that if the suit property was one of the joint family properties, then the members of the joint family or the appellant himself would have objected to the transfer of patta and upon perusal of Exhibit B-11 to B13, the Court below has found that no such objections have been made or no documents have been produced by the appellant to prove that, at the time of transfer of patta, or transfer of property tax assessment or house tax assessment, objections have been made to the Revenue Authorities. When the mutations have been effected in the revenue records, the appellant and others have remained as mute spectators.

Yet another aspect considered by the Court below is that in the oral testimony, the appellant, P.W.1, has deposed that Thailammai Theatre was allotted to his paternal uncle, Mr. Sait (brother of the appellant''s father, N. Gnanasekaran). But, as per Exhibit P-16, dated 28.7.1990, Unregistered copy of the sale agreement, the appellant has entered into an agreement of sale with a third party, with reference to the site in Thailammai Theatre. It is also the case of the appellant that another theatre, viz., Natesh Theatre exclusively belongs to him and by mortgaging the said Theatre, he has obtained a loan from Tiruvarur Kamalambika Co-operative Bank. Though the appellant has contended that there was no partition of the joint family properties, after the demise of his father, K. Gnanasekaran, but insofar as Natesh Theatre at Thiruvarur, is concerned, he had claimed the same as his exclusive property. So also is the case, with reference to a site in Thailammai Theatre, where he has entered into an agreement of sale with a third party, claiming himself as the exclusive owner. Analysing the oral testimony of P.W. 1, the appellant, with reference to Exhibit P-16 document, the Court below has further observed that when the above said property is stated to be belonging to P.W. 1, the contention that all the properties were joint family properties, cannot be accepted. Thus, as rightly observed by the Court below that if all the joint family properties are stated to have been possessed, enjoyed and maintained by all the members of the joint family, as joint family properties, then, he cannot claim exclusive right or interest to the site and Natesh Theatre. On the one hand, the appellant claims that all the properties derived from his father, late K. Gnanasekaran, are joint family properties, which remained intact without partition and on the other hand, claiming himself to be exclusive owner of some properties, has borrowed loan from a Co-operative Bank. He cannot approbate and reprobate. Useful reference can be made to the following decisions,

(i) In Commissioner of Income Tax, Madras Vs. V. Mr. P. Firm, Muar, , the Supreme Court held as follows:

...The doctrine of "approbate and reprobate" is only a species of estoppel; it applies only to the conduct of parties. As in the case of estoppes, it cannot operate against the provisions of a statute.

(ii) ln R.N. Gosain Vs. Yashpal Dhir, , the Supreme Court held as follows:

Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". (See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., 1921 (2) KB 608, 612 (CA) Scrutton, L.J.) According to Halsbury''s Laws Of England, 4th Edn., Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside, (para 1508)

(iii) ln Prashant Ramachandra Deshpande Vs. Maruti Balaram Haibatti, , the principle of "approbate and reprobate" has been explained. At Paragraph 2, it is held,

2..........Similarly, on the principle that a person may not approbate and reprobate, "a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions: (1) that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resale, and (2) that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent". Vide Halsbury''s Laws Of England, 4th Edn., Vol. 16, para 1507

(iv) In Cauvery Coffee Traders, Mangalore Vs. Hornor Resources (Intern.) Company Ltd., , the Supreme Court at paragraphs 33 to 35, held as follows:

ln R.N. Gosain Vs. Yashpal Dhir, this Court has observed as under:

Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that ''a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage''.

A party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estoppes to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. (Vide Nagubai Ammal and Others Vs. B. Shama Rao and Others, Commissioner of Income Tax, Madras Vs. V. Mr. P. Firm, Muar, , Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service, Amravati and Others, P.R. Deshpande Vs. Maruti Balaram Haibatti, Sri Babu Ram Alias Durga Prasad Vs. Sri Indra Pal Singh (Dead) by Lrs., , Chairman and M.D., N.T.P.C. Ltd. Vs. Reshmi Constructions, Builders and Contractors, , Ramesh Chandra Sankla Etc. Vs. Vikram Cement Etc.,

Thus, it is evident that the doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.

(v) In The Joint Action Committee of Airlines Pilots Associations of India and Others Vs. The Director General of Civil Aviation and Others, , the Supreme Court, at paragraph 12, held as follows:

The doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. (Vide Sri Babu Ram Alias Durga Prasad Vs. Sri Indra Pal Singh (Dead) by Lrs., P.R. Deshpande Vs. Maruti Balaram Haibatti, , and Mumbai International Airport Pvt. Ltd. Vs. Golden Chariot Airport and Another,

Considering the overall evidence, the Court below has held that to prove that the suit property has been purchased from the income of the joint family properties; that the sale consideration was paid by any of the members of the joint family and that the suit property was enjoyed by all the members of the joint family, as a joint family property, till Exhibit B-7, Agreement of Sale, dated 3.10.2002, was entered into between the respondents 1 and 2, no documentary evidence has been produced by the appellant. Till the execution of Exhibit B-14, dated 13.10.2009, sale deed, in E.P. No. 4 of 2008 in O.S. No. 20 of 2005, by the Court, no document has been filed to substantiate the contentions of the appellant and therefore, the Court below has rightly held that there was no subsisting right, either to the appellant or to any other member of the joint family, over the suit property. In the above said circumstances, following a decision in Ittiyachan Vs. Tomy, wherein, it has been held that an obstruction under Order 21 Rule 97 of the Code, can be maintained by a person, who is not bound by the decree or who claims an independent right over the property, the Court below, finding that where the obstructing party do have prove by subsisting right or outstanding claim of right, with reference to the suit property, held that the obstruction made by the appellant, as not maintainable.

Going through the impugned order, this Court is of the view that the Court below, by proper assessment of evidence, both oral and documentary, adduced by the parties, has arrived at a proper conclusion that the suit property is the exclusive property of the second respondent, Mr. G. Sukumar and in the absence of substantive evidence, has correctly held that the same was not purchased from out of the income derived from the joint family. There is no manifest illegality or irregularity in the impugned order. There are no bona fides in the claim of the appellant. The impugned well considered order does not require any reversal. In the light of the decisions stated supra and the discussion, the appeal is dismissed. Consequently, the interim orders are vacated. No costs.