AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
442 paragraphs · 9,712 wordsDeivanayaga Gounder (''D'' in short) is the central figure in the three appeals. One Indrajit claiming to be his son filed O.S.No.44 of 1982 for
partition of his half share in the properties. D was the first defendant. D filed O.S.NO.180 of 1982 for declaration and recovery of possession of
certain items of property. D also filed O.S.NO.80 of 1983 for declaration of title and for recovery of possession.
The suit properties belonged to one Narayanasamy. He had three sons, D, Kannappan, examined as P.W.2 and another, with whom we are not
concerned. There was a partition of the joint family properties between D & P.W.2.
The main appeal is A.S.No.410 of 1985 filed by Indrajit, the appellant herein and the reference to the parties will be according to their array in
this appeal. According to the appellant, D married the third respondent in 1938, and a daughter was born to them. He also married the fourth
respondent, who is the appellant''s mother. The appellant and three daughters were born to D & R-4. D also had two concubines, one Padmavathi
and one Kuppammal. Kuppammal''s son is the second respondent. The other members of the family are not parties to the appeal.
According to the appellants, the suit item Nos.4,6 and 8 were purchased by D under Ex-A4, A5, A6 and A7, benami, in the names of
respondents 3 and 4. Since D was involved in several cases and apprehended that a claim may be made on his properties, he also created sham
and nominal documents in favour of 5th and 6th respondent in respect of item Nos.11 to 18 under Exs-B82, B83 and B94. No consideration
passed between the parties nor was any interest intended to be created in favour of respondents 5 and 6. Therefore, the appellant claimed his half
share in all the properties because they were joint family properties allotted to D under the partition or acquired through joint family nucleus.
D filed his written statement not denying any of the averments of the plaint except to state that he had no intention of depriving his son of any
share in the property. The second respondent, who is the son of the concubine-Kuppammal denied the appellant''s right to claim a partition on the
ground there was no valid marriage between fourth respondent & D. The third respondent also denied any marriage between D and the
appellant''s mother, the fourth respondent. It was also her case that she purchased item Nos.4,6 and 8 out of her own earnings and is in enjoyment
of her half share and so, the appellant is not entitled to any share and that in any event she had perfected title by adverse possession.
The fourth respondent, the mother of the appellant had no objection to a decree been passed in favour of her son. The fifth and sixth
respondents, who were the purchasers under Exs-B82, B94 and B83, claimed that the suit properties are not joint family properties. D only got
two acres of dry land, which were not income producing. The fourth respondent is not validly married to D and therefore, the appellant is not
entitled to any share in the properties. The documents in their favour were not sham and nominal, but were genuine sale deeds for which full
consideration has been given. The suit is barred by limitation and has been filed at the instigation of D. The respondents 8 and 9 prayed for
dismissal of the suit, since they were not in possession of any of the suit properties.
The twelfth respondent, who also figures as the respondent in Tr.A.S.No.410 of 1987 filed his written statement stating that one Gangadhara
Gounder settled on his mother Padmavathi, the item No.5 of the ''C'' schedule under Ex-B104 and she had also accepted the same and is in
enjoyment of the said property and that he was not a necessary party to the suit and in any way the suit had to be dismissed, since the appellant is
not the legitimate son of D. A.S. No. 410/85 arises out of this suit.
Two suits were filed by D. D acknowledged that he was the father of the appellant and that both the third respondent and the fourth respondent
were his wives. He also referred to the purchase of the suit properties, benami in the name of the respondents 3 and 4. According to him, the
respondents in this appeal had trespassed into his property and therefore, O.S. No.180 of 1982 was filed. The first defendant in this suit is the
third respondent in the appeal viz., the first wife of D. She reiterated that she had purchased the properties out of her own funds and she is in
enjoyment of the same and not in adverse possession and prayed that the suit may be dismissed, whereas the mother of the appellant who was
shown as eighth defendant in this suit prayed that the suit has to be decreed. Against this, Tr.A.S. No.410 of 1997 has been filed.
The other suit O.S.NO.80 of 1983 was filed by D against the twelfth respondent in this appeal and his mother Padmavathi. He claimed that one
Ramalinga Reddiar had obtained a decree in O.S.No.416 of 1968 against the respondents in this appeal and that he has purchased the same in
Court auction and had taken possession and that they had no title or interest in the suit property. This was denied by the respondents, who
specifically stated that the suit is an off-shoot of the partition suit filed by the appellant. All the three suits were dismissed. Therefore, three appeals
have been filed. Against this, Tr.A.S. No.411 of 1997 has been filed.
There are several questions to be considered in these three appeals. The legitimacy of the appellant, the validity of the marriage between D and
the fourth respondent, the nature of the suit properties, joint family or self-acquired, genuineness of the sales in favour of the respondents 5 and 6,
the purchase in the name of respondents 3 and 4 whether benami or not, the right, title, or interest conveyed to D under the Court auction
purchase.
Validity of Marriage of D and the fourth respondent, and Legitimacy of the appellant :
(a) Mr. D. Rajagopal, learned counsel for the appellant submitted that when D had referred to the third and fourth respondents as his wives and
there is ample evidence to show that society regarded them as husband and wife, there is no justification to reject the evidence. He also submitted
that the marriage between D and the fourth respondent was in 1942 before Bigamy Act came into force. Ex-A20, the birth certificate of a female
child born to D and the appellant''s mother shows the date of birth as 04-07-1945 and Ex-A22, which is the death certificate of the same child,
two days later. According to the learned counsel, there was no reason to disbelieve these documents. The witnesses have categorically spoken of
the venue, year and marriage ceremony. The reason for the marriage is also given.
(b) On the other hand, Mrs. Hema Sampath, learned counsel appearing for the contesting respondents namely the purchasers, the respondents in
Tr.A.S.No.411 of 1987 and also the third respondent who is the first wife of D would submit that long cohabitation only gives rise to presumption
of marriage but there is no presumption of the date of marriage. It was also urged by the learned counsel that when the mother of the appellant did
not get into the box, it was sufficient to show that the marriage is not proved. Unless there is indisputable proof that there was a marriage between
D and the fourth respondent and that, marriage took place before 1949, the appellant will have to be non-suited.
(c) Oral and documentary evidence: Ex-A4 dated 24-06-1952 is a sale deed to show purchase in the name of the fourth respondent. In this the
fourth respondent is referred to as the wife of D. D has signed this document as a witness. Ex-A5, dated 13-11-1952 is also a sale deed in the
name of respondents 3 and 4 where there are recitals to the effect that the fourth respondent is the wife of D and he has also attested the sale
deed. Ex-A6 is a sale deed in the name of the fourth respondent with similar recitals. Ex-A7 is also a sale deed in the name of the appellant''s
mother where she has described as D''s wife and has also attested the sale deed.
(d) Ex-A20 and A22 are the certificates of birth and death respectively for male child born to D and the fourth respondent. It shows that the child
was born on 04-07-1945 and died on 06-07-1945. The name of D is found in the column, ''father'', in the voter''s lists.
(e) Exs-A12 to A16 have been marked in which not only the names of respondents 3 and 4, but also the other concubines'' names are found and
D''s name is shown as the husband. In P.W.1''s evidence the appellant states that his junior paternal uncle told him that his father and mother got
married in 1942 but he does not know whether they got married or not.
(f) P.W.2 is the younger brother of D. In his evidence he gives the reason for D''s marriage to the fourth respondent. It appears that D was married
to the third respondent in 1937 or 1938. She had not attained puberty and therefore, she did not bear any child. Therefore, in 1942, D got married
to the fourth respondent. Subsequently, a female child was born to the third respondent. According to him, his uncle, his mother, his sister and
others attended the wedding, but they are all dead now. According to him, to the best of his knowledge only he and the third respondent are the
persons, who attended the marriage and are still alive. He has also stated that about four years after their marriage, a child was born, who died
soon after and thereafter, three children were born and they also died and then a daughter and thereafter the appellant. The marriage took place in
a temple. In the cross examination, he states that he does not know the Tamil year of the marriage but it was in the end of the month of ""Thai"". He
also does not remember the year in which the third respondent got married but both got married in the Pandurangan Temple. He also states that
the marriage did not take place secretly but publicly.
(g) P.W.3 is a freedom fighter who knows D. He has given evidence that D got married in 1942 to the fourth respondent and that the marriage
was performed according to the Hindus Rites by tying a ""thali"" and exchange of garlands. According to him, he went to Bellari Jail some three or
three and half months after they got married in 1942. In cross examination, he has stated that he was imprisoned in the fourth month of 1942. He
also refers to the place of marriage as Pandurangan Temple and that the marriage was in the month of ""Thai"".
(h) P.W.4 is the elder sister of the fourth respondent. She has given evidence that her sister got married in 1942 in the month of ""Thai"" in
Pandurangan Temple and that the marriage took place according to Hindu rights by tying ""thali"" and exchange of garlands. She also states that the
reason why the fourth respondent was given preference was because the third respondent did not come of age and suffered poor health. In the
cross examination she states that she got married in ""Avani"", 1938. She has an elder sister but she does not know when the elder sister got
married. This witness also speaks of the death of four children born to D and the fourth respondent. D.W.1 is D himself, and he says that he got
married to the third respondent in 1938 and in 1942, to the fourth respondent in the month of ""Thai"" and according to Hindu Rights by tying ""thali
and exchange of garlands. He also speaks of the presence of his own brother, P.W.2 and his sister-in-law P.W.4.
(i) The evidence of P.W.2, P.W.4 and D.W.1 all show that there were eight children born out of the union of D and the fourth respondent, out of
which only four are alive. The appellant being the son and three daughters. The first child according to D.W.1 was a boy who was born in 1945
and died two days later. He also speaks of the death of three daughters thereafter. According to him until 1979, he, the third and the fourth
respondent all lived together. In cross examination also he states that he had eight children out of which three daughters and a son died and only the
birth of the son has been registered, since the other three were still born. Tamilarasi, the sister of appellant was born in 1954 and according to D
before 1950 four children were born.
(j) D.W.2 is the third respondent. She denies that any marriage took place in Pandurangan Koil or that her husband D and the fourth respondent
got married in 1942. According to her, Vridhambal the fourth respondent was abducted by her husband in 1950-51. In cross examination she
states that the fourth respondent came into her life 15 years after her marriage. Her marriage was in 1938. But she also states that she came to the
house in 1951. She says that she does not know how many children Virudambal had. She denies that the fourth respondent got married in 1941-
42 and she also denies that there was a male child born to Virudambal. In her cross examination she admits that at the time of her marriage she has
not come of age and it was only thereafter she came of age.
(k) D.W.3 is Narayanasamy Naidu, the person in whose name the appellant alleges the sham and nominal document has been obtained. According
to him, he insisted that in the sale deed the appellant''s name should also be included, but D said that a concubine''s son''s name need not be
included. He has also stated that at the time of the sale deed the appellant would accompany D and when he asked who he was, D replied that he
was the concubine''s son.
(l) D.W.4 is related to the twelfth respondent, who categorically denies the marriage between D and fourth respondent or that the society
considered them as husband and wife. In cross examination, it is elicited that there is some enmity between D and this witness. He also states that
1945 y; ,th;fSf;F Kjy; FHe;ij gpwe;jJ vd;why; mJ bjhpahJ. ""hgfk; ,y;iy/
(m) The authorities that were cited are as follows:
(i) Chinnammal Vs. Elumalai 2000 (2) L.W. 782 In this it was held that,
There is a distinction between proof of marriage and validity of marriage. The proof of marriage can be achieved by direct evidence of the
marriage ceremony or registration of marriage or by circumstantial evidence, one of the circumstances being long cohabitation and living together.
But, a marriage which is questioned on the ground of being subsequent to and during the subsistence of an earlier marriage, could not, by any
stretch of argument of imagination, be sanctified or validated by any length of cohabitation or living together. After the advent of Tamil Nadu Hindu
(Bigamy Prevention and Divorce) Act, 1949 and Hindu Marriage Act, 1956, the second marriage during the subsistence of the first marriage is
totally void, illegal and opposed to public policy. No amount of pleading or proof of custom or consent by wife can validate such a marriage.
Therefore, the alleged marriage with seventh defendant could never acquire legal status. To hold otherwise, would be putting premium on persons
who violate the law to the detriment of the legally wedded wife and the legitimate children. Every individual, in an orderly society, has to go by the
basic rules and there could be no question of any sympathy towards a person who willingly hurts others knowing fully well that the marriage during
the subsistence of another mariage, would be illegal. The position of the children born out of such relationship is no doubt tragic and to be
sympathised with, and the law has taken care of them by enacting Section 16 of the Hindu Marriage Act, 1955, which, not only removes the
stigma of illegitimacy, but also entitles them to equal share in the individual and self-acquired property of their father.
(ii) In Subbaraya Pillai alias Subbaraya Manthiri Vs. Lakshmiammal 1993 II L.W. 551 in which a Division Bench of this Court held that a son born
to a second wife after the Bigamy Act in 1949, but, before 1955 Act came into force cannot be treated as a legitimate son. In that case, it was
contended that even if the sons were illegitimate in the eye of law they will be entitled under the Hindu Law to get equal shares, as for an aurasa
son, if the father so desires and the Division Bench held that,
Thus, we are convinced that in law it is open to the first appellant to express his desire that his illegitimate sons should get equal shares as his
legitimate sons and the partition must be effected only on the basis. We have also noticed that in Karuppannan Chetti''s case ILR 23 Mad 16, the
option was exercised by the father only during the pendency of the proceedings in Court.
(iii) In Amsavalli Vs. Indira 1997 III L.W. 262 the learned Judge held that before 1949 there was no prohibition for a Hindu governed under
Mitakshara Law, to contract a second marriage and when the deceased himself declared that he is the father it is relevant u/s 32 of the Evidence
Act.
(iv) In P. Mariammal Vs. Padmanabhan 2002 I L.W. 338 it was held that there is a strong presumption in favour of validity of marriage, if from the
time of alleged marriage, the parties are recognized as man and wife and so recognized in important occasions.
(v) In Peramayee Vs. Guruvayee 1999 II L.W. 404 it was held that there could be a presumption of a valid marriage which ofcourse is void and
the presumption of marriage could be drawn from long cohabitation and evidence from materials like school records, letters, voters'' list, money
order coupons etc. would be sufficient to show that a woman was treated by a man as his wife.
(vi) In T.P. Manicka Mudaliar Vs. Ammakannu(Vol.54 L.W. 411) in which the circumstances under which an entry in the birth register can be
held to be relevant was considered.
(vii) In H. Subba Rao Vs. The Life Insurance Corporation of India AIR 1976 Karnataka 231 it was held that an entry of date of birth made
pursuant to the directions of a Magistrate is not conclusive evidence of the disputed date of birth.
(viii) In Athiappa Gounder Vs. A. Mohan 1995 I L.W. 594, the Division Bench of this Court held that children born of a void marriage are entitled
to succeed to the properties of the parents only and not to any other property.
(ix) In Surjit Kaur Vs. Garja Singh 1994 I L.W. 38 it was held that in the absence of any pleading about the solemnization of marriage in
accordance with customary rights and ceremonies the mere distribution of sugar or gur would not constitute a valid marriage and mere living as
husband and wife will not confer status of wife and husband.
(x) In Hemanta Kumar Das Vs. Alliantz Und Stuttgarter Life Insurance Co. Ltd., it was held that entries of the names of persons in a register of
births or deaths or marriages cannot be positive evidence of the birth, death or marriage of such persons unless their identity is fully proved.
(n) In this case, as early as 1952, the fourth respondent is referred to as the wife of D, and Ex-A19 which is of the year 1951 also refers to the
fourth respondent as the wife of D. It is necessary to show that the marriage took place before 1949 to prove that there was a valid marriage. The
appellant has produced documentary evidence to show atleast that his father recognized his mother as his wife and public documents like mortgage
deeds described her as such. Apart from giving evidence regarding the marriage in 1942 the appellant''s witnesses have all testified that there were
four children born to D and the fourth respondent before Tamilarasi, who was born in 1954 and unless the marriage of D and the fourth
respondent was atleast in 1949 these four children could not have been born before 1954, which is the date of birth of Tamilarasi and which is not
rebutted.
(o) The evidence of P.W.2, P.W.4 and D.W.1 that there were four children that were born to D and the fourth respondent, has not been disputed.
Ex-A20 and A21 which refers to a birth of a male child in 04-07-1945 subsequently died on 06-07-1945 to D and Vridhambal may not be
sufficient to uphold the validity of marriage if that was the only evidence on record. But here the appellant had produced the document of the year
1951 where the fourth respondent is described as the wife of D. D''s brother, fourth respondent''s sister and one stranger to the family have all
spoken of the marriage in 1942 in Pandurangan Koil according to the Hindu rites in the month of ""Thai"". The learned Trial Judge dismissed the
evidence with regard to the marriage in the month of ""Thai"" in 1942 in Pandurangan Koil on the ground it is repetitive and parrot-like. When all the
witnesses are speaking the truth, they must necessarily repeat themselves. Can there be any variance in truth? It must be remembered that some
forty years after the alleged date of marrige the parties are called upon to produce evidence of the marriage. It is needless to say the law leans in
favour of the validity of marriage and also in favour of legitimacy rather than bastardy. Of course if there is no evidence at all there cannot be any
presumption of a valid marriage. In this case, not only do the witnesses speak of the marriage in a fairly believable manner but also they speak of
the four children who were born earlier, one who died two days later and the others who were still born. In fact the evidence of P.W.2 is quite
natural in this regard.
tpUj;jhk;ghSf;F 6 bgz;fs;. 2 Mz;fs;/ ,jpy; 3 bgz;fSk; 1 Mqk; FHe;ijapnyna ,we;jJ/ @This has been elicited in the cross examination. P.W.4, the
sister of the fourth respondent also says, ""mth;fSf;F vl;L FHe;ijfs;/ mjpy; xU igaDk;. K:d;W bgz;fSk; jhd; ,Uf;fpwhh;fs;/@ P.W.4 also has stated in
his evidence that he was arrested because he was a freedom fighter in 1942, 4th month and this was about three months before his marriage.
(p) D.W.2, who is the third respondent quite naturally denies the marriage between her husband and fourth respondent. It is also her case that only
she will go and take part in all the functions and not the fourth respondent. Some reason is given as to why D married the 4th respondent and that
is the poor health of the third respondent and the fact that she did not attain puberty even after marriage and that she did not have any children.
This fact about her physical condition is admitted by her.
(q) The reason given by the Trial Court for not accepting the case of the appellant is that there was no marriage invitation. The marriage took place
in 1940 and therefore, it is quite likely that marriage invitations were not printed. This is what the learned Judge says,
the fact that for other daughters of the 1st defendant, marriage invitations have been printed is admitted by the 1st defendant. If any marriage has
taken place between the 1st defendant and the 4th defendant, definitely there would have been a marriage invitation.
This is clearly an unreasonable conclusion. The first defendant namely D has stated in his evidence that he has printed invitations for his daughters.
That is all. In fact, it has to be noticed that the fact that he has referred to marriage invitations being printed for other daughters would itself show
that he has treated the sisters of the appellant as his daughters, since the third respondent had only one child, a daughter. The Trial Court also
rejects the reference to the fourth respondent as ''a wife'' in the sale deeds stating that the word ''concubine'' will not be written in such a document.
It is common knowledge that when the reference is to a concubine the words, ""mgpkhd kidtp@ or ""mgpkhd !;jphP@ are used.
(r) As far as Exs-A20 to 22 are concerned, the Court below rejects it on the ground that it is not known that the child mentioned under Ex-A20,
was conceived after cohabitation with the first defendant or whether it was conceived after cohabitation with Pakkirisamy. It is nobody''s case nor
was there any cross-examination in this regard that the child referred to in Ex-A20 was born to Pakkirisamy. It is pointed out that the name of the
child is not mentioned normally in birth certificates. The learned Judge also says that there is no chance of writing the names of both the father and
mother. What he failed to see was, Col.7 shows the name of father, mother and husband. So there is nothing suspicious about the name of the
mother finding a place there. The non-mention of the name of the fourth respondent in Ex-A22 is also not relevant. It is admitted that there is no
other Deivanayaga Kounder and it is not anybody''s case that Ex-A22 refers to someone else. So while Exs-A20 or A22 will not show that any
marriage took place, it atleast shows that a child was born to D and the fourth respondent, Vridhambal. In the absence of any pleadings or cross-
examination the finding of the Lower Court and that the child might have been born to Pakkirisamy must be rejected outright. Then, this shows
cohabitation of D and the fourth respondent from before 1945 and all the other evidence falls into place proving the marriage in 1942. The births of
four children, one in 1945, who died two days later and three still-born daughters and prior to the birth of Tamilarasi, the elder sister of the
appellant in 1954, the description of the fourth respondent as D''s wife in the 1951 document are materials to show that a marriage took place
before 1949, most probably in the month of ""Thai"" in 1942.
(s) The written statement filed by the third respondent is also relevant.
After the marriage of this defendant her husband first defendant was keeping Virudhambal the fourth defendant herein as his concubine. Sometime
later she was taken back by her parents and she was given in marriage to one Pakkirisamy of Virudhachalam. She lived there for three years.
Thereafter while Pakkirisamy was alive the first defendant has kidnapped her and he was keeping her as his concubine.
Her marriage with D is sometime in 1939. It is her case that after her marriage, he brought Virudambal, the fourth respondent. Therefore, this
pleading supports the fourth respondent''s case of cohabitation or marriage with D from 1942. If the respondents want to project that there was no
marriage before 1949 and the marriage, if at all, was only subsequent to that and therefore, void, there is no reason for the third respondent to
plead that after the marriage, her husband was associating himself with the fourth respondent. The case relating to Pakkirisamy has not been
proved at all. In her defence, she says that the fourth respondent was married to Pakkirisamy and in 1950-51, D brought her back. Therefore, if
these years are correlated with the pleadings extracted above, the fourth respondent must have been taken away from D sometime in 1948 for
three years, and brought back later. This also supports the fourth respondent''s marriage with D in 1942. D.W.4 also merely says that the fourth
respondent was married to Pakkirisamy about 33 years before, which is probably in 1951 and immediately thereafter, D brought her back. This
also correlates with the above dates.
(t) Since at that time second marriages were not legally barred, the marriage of D and the fourth respondent must be held to be valid and the
appellant, is found to be the legitimate son of D.
Joint Family:
The case that there was joint family property was rejected by the Trial Court for very peculiar reasons. The learned Trial Judge observes that
because D had so many concubines, he could not have maintained his family with the ancestral nucleus and he must have earned independently, the
income from which properties were purchased. Ex-A2 was filed to show that the father of D and P.W.2 owned properties and about 5 acres and
73 1/2 cents were mortgaged. The Trial Court faults the appellant for not noting what properties belong to D''s father. The appellant was born in
1959, but these transactions took place in the year 1930. Therefore, the appellant can only speak of those transactions about which he had
information or knowledge. Ex-A1 is a partition deed. Under this document, D and P.W.2 divide their properties. About 3.62 acres fell to the share
of D. They can be directly correlated to suit ""A"" Schedule item Nos.16,17,18,13 and 20. These are all nanja and punja lands and valued at
Rs.11,874.50p in Ex-A1. It is relevant to note that the father of the appellant admits that it is joint family property. Of course, if the properties are
really self-acquired then the reasons for the first defendant admitting that they are joint family properties are not far to seek. The father of the
appellant had parted with his rights in respect of several properties and it is in his own interest to admit that they are joint family properties. But,
there is no doubt in this case that there were joint family properties which came to the appellant''s father under the partition deed.
(a)The following authorities were relied on:
(i) In Kondiram Bhiku Kirdat Vs. Krishna Bhiku Kirdat (Deceased by L.Rs.), : it was held that the properties having joint family nucleus must be
deemed to be joint family properties. It was observed:
Thus it can be seen that till the date of severance in status there is no individual enjoyment of the properties or assertion of their rights in respect of
any specified item of the property. It is seen that during the life time of the father, both the brothers remained joint and after the demise of the
father, by which date both the brothers were discharged from military service, Krishna continued to maintain properties not acquired only by them
but also tenanted land. Therefore, it is clear that they had joint family nucleus and continued to acquire the respective properties. So they must be
deemed to be joint family properties as found by the appellate court.
(ii) In Mayandi Thevar Vs. Arumughathevar 1999 III L.W. 629, Mulla''s Principles of Hindu Law was referred to and it has been held as,
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 affirmative that the properties were acquired without the aid of the joint family.
And it was held that when the properties purchased in the name of the Manager of the joint family, the onus was on the person who is attacking the
joint family nature to prove that it was individual property.
(iii) In K. Adivi Naidu and Others Vs. E. Duruvasulu Naidu and Others, : it was held that any sale of undivided and specified items of co-
parcenary properties will not bind the other co-parceners.
(b) P.W.1, the appellant has stated in his cross-examination,
vd; mg;gh g{h;tPf brhj;jpd; tUkhdj;ij itj;J kw;w brhj;Jf;fis th'';fpdhh;/@
P.W.2, the brother of D had also stated,
mjd; gpwF me;j brhj;J tUkhdj;ijf; bfhz;L mtUk; brhj;J rk;ghjpj;jhh;/@
(c) P.W.3 is a witness for proving the marriage and has not stated anything regarding the property. P.W.4 also is a witness to prove the marriage.
D.W.1 is D and he has stated,
vd; ghf brhj;ij tpw;W tpl;L ntW brhj;Jf;fs; th'';fpa[s;nsd;/ vd; mg;gh brhj;J tUkhdj;jpYk;. vd; khkdhh; brhj;jpy; ciHj;Jk; epy'';fs; th'';fpndd;/@
(d) He has also stated that the lands that he obtained in partition are virtually lands where sugarcane and groundnuts are grown and that they
generated income. D.W.2, who is D''s wife,only speaks of her purchase of the property in her name out of her own funds. Indirectly, she has also
referred to the family property where she says,
itg;ghl;ofSf;nf FLk;g brhj;ij mHpj;jhh;/@
Her evidence also focusses on the invalidity of the marriage of D and the appellant''s mother. D.W.3 is the purchaser under Exs-B94 and B82.
This is attacked by the appellant as sham and nominal documents. Of course, in his evidence, he denies that these sale deeds were created to
protect the properties from creditors. Even in his chief- examination, he has stated,
,e;jpu$pj;ija[k; nrh;f;f ntz;Lk; fpuag;gj;jpuj;jp;;y; vd;nwd;/ mth; itg;ghl;og; gp;s;is mjdhy; nrh;f;f ntz;oaJ ,y;iybad;W o/1 brhy;yp tpl;lhh;/@
(e) Two things can be deduced from this:
(i) One is that obviously the appellant enjoyed the reputation that he was D''s son. It must be noted that the second respondent Imayavaramban is
not asked to join in the execution of the sale deed. Perhaps, there is no doubt in his mind regarding the second respondent''s status. It is very likely
that the appellant enjoyed the reputation of being D''s legitimate son, and so D.W.3 had requested D to obtain the appellant''s signature either as a
co-executant or a confirming party.
(ii) Next is D.W.3 obviously was of the opinion that the property was joint family property and he to protect his rights, the son should join the sale
deed. The fact that D.W.3 and D are close friends is elicited in D.W.1''s evidence.
ehuhazrhkp eha[L. (o.5). rp;d;idad; (o/6) Mfpnahh; vdf;F Mg;j ez;gh;fs;/@
So, D''s friend''s insistence that the appellant should execute the document is very relevant both on the issue of the validity of marriage, his
legitimacy as well as the joint family character of the property. D.W.4 has referred to the partition between D and his brother P.W.2, but does not
say anything relevant regarding this issue. D.W.5 and D.W.6, Padmavathi and Sedaksharam are not concerned with these partition suits, and
hence their evidence is not dealt with.
(f)The following authorities were also dealt with in this regard:
(i) In Muniappa Naicker V. Balakrishna Naicker 1998 (2) L.W. 259, it was held that, that a member of a family, taking aid of any portion of joint
or ancestral property should show that there was sufficient nucleus and this cannot be presumed or assumed on probabilities.
(ii) In Puthiavinayagam Pillai V. SivasankaranPillai 1997 (1) L.W. 482, again it was held that the claim as joint family property should be claimed
by persons who asserts to that effect. The acquisition of joint family property and the manner in which it has to be proved has been the subject of
many decisions.
(iii)Several broad principles have been laid down especially in 1998 II L.W. 259 and the following principles could be crucial:
(1)""A Hindu Family is presumed to be joint. But at the same time, there is no presumption that the joint family is possessed of family properties.
(2)The manager, if he is in possession of family properties and is in management thereof and acquires any other property, the law presumes that it
is joint family property.
(3)Even in such cases, presumption will arise only if it is shown that the family property had left surplus income out of which other properties could
be acquired. If the nature and relative value of the property are such that there is no income, any fresh acquisition cannot be treated as a family
property. It is well within the powers of the members of the family that they can acquire separate properties and can have their own avocations in
life. There is no law which says that only if a member gets married or comes of a particular age, he can do business or earn income. There is also
no presumption that any property acquired by a member is a family property.
(iv) In Parkash Chand and Others Vs. Hans Raj and Another, , it was held that when joint family nature is proved then the onus would shift to the
other side to prove that it was other side''s property.
(v) The decision in K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna Iyer and Others, :was also referred to in this case and there, it was held 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. Vide Amritalal V. Surat Lal, AIR1942 Cal 553, Appalaswami Vs. Suryanarayanamurthy, ILR
(1948) Mad 440 : AIR 1947 PC 189
(vi) Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, :and Mallappa Girimallappa Betgeri Vs. R. Yellappagouda Patil AIR
1959 SC 906 were also referred to in this decision.
(g) In this case, there can be no dispute that there was a joint family nucleus and the existence of the same is proved by the partition deed. The
father against whom the claim for partition is made also admits that it is joint family property. No doubt, his support of the case may be for oblique
reasons. But when a valuable ancestral nucleus exists, then the person who claims to prove that it is self-acquired, is bound to prove the same.
Whereas in this case, even the person who has purchased the property has indicated that he is under the impression that the property is joint family
property.
Therefore, in this case, I am of the opinion that the properties are joint family properties subject to certain properties being excluded for reasons
that shall be given below:
(1) Exs-B82, B83 and B94 whether Sham and Nominal: Three sale deeds were said to be sham and nominal and they have been executed by D in
favour of D5 (Ex-B.82 and Ex-B.94) and D6 (Ex-B.83). The suit item properties are covered under these documents Exs-B11,B12,B13,B15 to
B18. The appellant''s case is that these documents were created only to protect those properties from criminal proceedings and that they were
sham and nominal and no consideration was passed therein. D.W.1 had also supported the case of the appellant stating that these two defendants
were his close friends and since there were many legal proceedings against him, he executed those documents without receiving any consideration.
While dealing with the transactions entered into by D one thing must be remembered is that almost all the witnesses have testified that D is a regular
litigant. He has been assisting others or conducting cases on behalf of others. In his evidence, D has stated that these documents were executed
without sale consideration and that Narayanaswami Naidu and Chinnaiyan wrote down the recitals in the sale deeds. Further in his written
statement, he has stated that he had purchased some properties in the name of the fifth defendant but he is the real owner of the properties whereas
there is absolutely no reference to the sixth defendant. Now in cross-examination, he had stated that this averment in the written statement is wrong
whereas what he actually meant was that the properties were transferred to these defendants without any consideration. On the other hand P.W.3
had marked Ex-B96 which is a mortgage deed executed by him in favour of one Dhanalakshmi and according to him, by mortgaging the property
he obtained the funds necessary to purchase the suit properties. He has also stated that on another occasion D wanted some amount for wedding
expenses and so the other property was sold. In Ex-B96 which is the mortgage deed the recitals are as follows:
@ehd; My'';Fg;gk; bja;tehaf ft[z;lhplk; ed;bra; epyk; fpuak; th'';fpdjw;F bfhLf;f ntz;oajw;fhft[k;. FLk;g bryt[. gaph;r; brytpw;fhft[k; ehsJ njjpapy;
j'';fsplk; buhf;fk; bgw;Wf; bfhz;l U:/5000/00/@
There is no reason to conclude that the recitals in this sale deed are false or concocted. In any event they are long before the suit. Therefore, the
case of the appellant that Exs-B82, B83 and B94 are sham and nominal are rejected as far as these sale deeds in favour of the fifth respondent is
concerned. The written statement of D is totally silent as far as the other two documents are concerned with regard to the sixth respondent. The
fifth respondent has satisfactorily proved that he had purchased the property for valuable consideration. It is also relevant to note that in these sale
deeds there are specific recitals that the properties are sold for benefit of family or for family expense. Thus, this question is answered against the
appellant and the sale deeds Exs-B82, B83 and B94 are genuine transactions.
(2) Benami:
(a) The following properties come under this heading:
Item Nos.4,6,8 and 9 and they are covered by Exs-A4,A5, A6 and A7.
(b) Exs-A4 and A5, equivalent to Exs-B12 and B13 are in the name of respondents 3 and 4. Exs-A6 and A7, were in the name of R4, who is the
mother of the appellant and in her written statement, she has said that the properties were purchased in her name by her husband. Therefore, a half
share in properties covered under Exs-A6 and A7 are available for partition since R4 admits that it was purchased by D in her name from the joint
family funds. The dispute is with regard to the half share of R3 in the Exs-A4 and A5. P.W.1, the appellant has stated,
@,th;fs; ,Uth; nghpYk; vd; mg;gh jhd; FLk;g brhj;jpy; ,Ue;J brhj;J th'';fpBh;/@
(c) D.W.1 had stated that until 1978-79, he, R3 and R4 all lived together amicably. He has denied that R3 brought money to purchase the
property. The written statement of D1 is totally silent silent regarding the benami character of these sales. According to the respondents, this would
show that the properties covered by Exs-A4 and A5 were not benami atleast R3 had given funds for purchasing the property in her name.
According to the appellant, however, this cannot help the case of the respondent because the very fact that D had stated all the properties are joint
family properties and available for partition would itself show that D did not recognize that his wives would have any right in the property.
(d) D.W.2 who asserts independent right to the property would submit that she has property in Karuveppilipalayam and she had also purchased
some property under Exs-B85 and B86 and that from the income generated from these properties and from her own jewels she purchased the
properties covered by Ex-A4 and A5 which correspond to Exs-B12 and B13. She has admitted that the original title deeds are with her husband
and she has stated that she has the patta in her name and those are Exs-B86 to 89. According to her, she would give money to her husband to pay
the kist and other tax but now she is doing it herself. According to her, she objected to the reference to R4 as the wife of D but that D said that he
would do as he pleases. The following is the evidence in this regard:
@tpUj;jhk;ghs; k]dtp vd;W vGjpa[a;sJ. gj;jpuk; vGJk; nghJ ehd; ,y;]y/ tPl;oy; ,Ue;njd;/ mJ vGjp 10. 5 tUlk; fHpj;J k]dtp vd;W vGjpapUg;gJ
bjhpe;jJ/ Vd; mg;go k]dtp vd;W vGjpapUf;F vd;W nfl;nld;/ vd; ,c&;lk; vd;W brhy;yp tpl;lhh;/ mJ bghUj;J mj;ij kfd; vd;gjhy; nehl;O!; jutpy;iy/
tpUj;jhk;ghs; mDgtpf;Fk; ghjpia vdf;F ntz;Lk; vd;W ehd; eltof;if vLf;ftpy;iy/@
(i) Official Assignee of Madras Vs. Natesa Gramani, is relied on by the learned counsel for the third respondent. The property standing in wives
names is not presumed to belong to her husband unless it is proved that husband advanced money for purchase. This is the judgment of a Division
Bench of this High Court.
(ii) In Ammaponnammal Vs. Shanmugam Pillai 84 L.W. 145 it was held that once the parties involved in an alleged benami transaction of husband
and wife, the significant factor will be the motto for the purchase and that when the intention to benefit the wife is especially no amount of change of
intention will have the effect of divesting the title which the wife acquired under the document under which the property was purchased in her name.
(iii) In Thakur Bhim Singh (Dead) by Lrs and Another Vs. Thakur Kan Singh, : it was held that the burden of showing that a transfer is a benami
transaction lies on the person who asserts that it is such a transaction.
(iv) In Gapadibai Vs. State of Madhya Pradesh, : it was held that,
in order to prove the benami nature of the transaction of purchase by wife in her own name, evidence must be led to show (1) that defendant
husband paid the consideration (2) that he had the custody of the sale deed, (3) that he was in possession of the property, and (4) the motive for
the transaction.
(v) In Sundaram Nadar Vs. Sukumaran 2001 (2) L.W. 439 this Court laid down the broad principles for asserting whether the transaction is
benami or not.
(e) In this case, the written statement is silent regarding the benami. Of course, it can be said that since this written statement is to the effect that all
the properties are joint family properties it may be an omnibus denial which would take in these properties also. But when R3 has filed the written
statement categorically stating the source of funds, the appellant ought to have produced evidence to demonstrate that the tests of benami had been
satisfied in the case. According to the appellant, since these documents Exs-B12 and B13, were in the custody of D it must be held to be benami.
But one must remember that even on his own admission D, R3 and R4 were living together until 1978 and 79 and therefore, the custody of the sale
deeds loses its importance.
(f) Further this property was purchased in the names of both the wives of D. The evidence of D.W.2 that about 5,10 years after the sale deeds the
question why R4 was referred to as a wife is very crucial. It shows that she knew about her husband''s reference to R4 as a wife several years
before and she has not taken any steps regarding that and she has also accepted the purchase of half share of the property in R4''s name. This also
indirectly indicates that the marriage to R4 was acknowledged. Coming back to benami, if the tests laid down for proving benami are applied to
this case D.W.2''s evidence is that for a long time her husband paid the tax and other receipts after receiving the money from her, but thereafter,
she has been paying it in her own name. This is demonstrated by her by filing various documents which are Exs-B88, B89, B90, B91 etc. So it is
clear that the patta is also in her name and the custody of the title deeds has already been said to be not crucial. D gives a motive for executing the
sale deed in her name which is to avoid possible disputes from his brothers. But he has not said so in his written statement. According to his
evidence, it did not occur to him to say anything and the reason for his purchase in the name of his wife is that his second brother and P.W.2 may
ask for a share. But when one sees that the properties were purchased in 1952 and there is no evidence to show that there was any threat from the
brother this reason falls to the ground. Though D has given evidence that R3 has no income it is clear that this lady has been purchasing the
property in her own right as Exs-B85 and B86 would show. Though there is a feeble denial that she has property in Karuveppilipalayam it is
abundantly clear that R3 was a women possessed of funds through which she purchased properties even as early as 1945. In these circumstances,
it is difficult to accept that the purchase in R3''s name was benami and therefore, the half share in the properties under Exs-A4 and A5 (Exs-B12
and B13) are held to be R3''s own property, and not available for partition, the other half is liable for partition.
Property purchased in Court Auction:
Finally, the property which is subject matter of Tr. A.S.No.410 of 1997 shall be dealt with. This is item No.5 of ''C'' Schedule. The plaint states
that ''C'' Schedule property also belongs to joint family and that it is in possession of the twelfth defendant. But there is no averment to show how it
belongs to the joint family. D''s written statement is also not specific and merely says for the last two years, defendants 7 to 12 are in enjoyment of
some portion of the joint family properties without any right over the same. The twelfth respondent is the son of Padmavathi in whose name this
property stands. According to him the property belonged to one Gangadhara Gounder who executed a marriage settlement deed in favour of his
mother This was acted upon and accepted by Padmavathi Ammal, she has been in possession of the property since then and in any event she has
prescribed title by adverse possession.
(ii) The learned counsel for the appellant would attack the rejection of his claim in respect to the suit property by referring to the D''s evidence that
he does not know about the settlement deed in favour of Padmavathi Ammal and that even if he had attested it as a witness he had no knowledge
of the contents. The learned counsel pointed out that the original settlement deed was not filed. He would refer to Exs-B68 to B70, the plaint and
the judgment in the prior proceedings, and that all the steps to protect the property were only taken by D. So the evidence on the whole, point to
D''s title to the properties.
(iii) On the other hand, Mrs. Hema Sampath, learned counsel for RR3,5 & 12 would submit that if D had the custody of title deeds it was only
because he had been conducting proceedings on behalf of the respondents in Tr.A.S.No.411 of 1997. The fact of settlement is spoken to by none
other than P.W.2, the brother of D. There is a reference to D''s concubine by name Padmavathi and also it is made clear that this respondent is
another Padmavathi. The evidence of P.W.2 is that this Padmavathi is the second wife of his sister''s husband and that the sister''s husband
Gangadhara Gounder settled certain properties in her name. D.W.2, the wife of D has also given evidence that ""f'';fhju ft[z;lh; gj;khtjpf;F vGjp
itj;jjpy;@/ This also affirms the fact that Gangadhara Gounder settled the property to Padmavathi.
(iv) D.W.5, is Padmavathi herself and she has stated that she has been in possession of the suit property from the date of the settlement deed and
the patta, Ex-B105 is also in her name. According to her evidence, when the first wife of Gangadhara Gounder filed a case in Thirukoilur Court, D
helped her in prosecuting the case and that D had possession of all the documents. According to her, her property was never auctioned in Court
and she alone is entitled to this property. D.W.6 also supports this case. The Lower Court therefore, rightly came to the conclusion that merely
because D had custody of the settlement deed that cannot defeat the case of the respondent.
(v) According to D, one Ramalingam brought these items for sale in Court auction against the legal representatives of Gangadhara Gounder and
that he purchased the same and after taking delivery he is in enjoyment of the same. In support of this, Exs-B67 to B71 have been produced which
are documents pertaining to the other suit. Ex-B67 is the sale proclamation in O.S.No.416 of 1968 between Ramalingam and Padmavathi Ammal
and item No.5 of ''C'' Schedule is referred to therein. Ex-B68 is the certified copy of the plaint in the same suit. Ex-B69 is the judgment. The suit
was decreed ex parte against the defendants, who are the respondents Padmavathi and her son. The suit has been filed for recovery of amounts
due from Gangadhara Gounder, the defendants being his legal representatives. The appeal was dismissed. Ex-B72, the certified copy of the plaint
in O.S.NO.937 of 1971 in which Padmavathi Ammal as the plaintiff on behalf of herself and Sedaksharam has filed the suit for partition. Ex-B73 is
the judgment in the suit. The judgment is dated 31-01-1976. In this suit there is reference to the settlement deed dated 04-03-1955 which is Ex-
B104 and it is stated therein that Padmavathi Ammal was in possession and enjoyment of the ''B'' Schedule property of that suit which was
conveyed to her under the settlement deed. One Mannangatti Gounder, the fourth defendant in that suit, claimed to be in possession of this
property and denied that Padmavathi Ammal and her children were in possession of the same.
(vi) Issue No.7 and 8 in that suit relate to the settlement deed dated 04-03-1955 and whether the settlee''s were in possession of the property
alleged to have been settled under this. D gave evidence as P.W.3 in that suit and it was found that the settlement deed dated 04-03-1955 was
accepted by Padmavathi Ammal, the respondent herein and that she was in possession of the properties settled upon her. This is the categoric
finding of the learned Judge in that suit,
So, from the evidence of P.Ws.1 to 3 and Exs-A6, A9 and A10, it is proved that the first plaintiff accepted the settlement deed and took
possession of the properties and was enjoying the same.
Therefore, D himself had given evidence that the property subject matter of Ex-B104 had been in possession of the respondent.
(vii) Ex-B75 is the appeal filed against this and the appeal was dismissed with costs. In Ex-B73, Exs-A11 and A13 were marked which were the
certificate of sale, certified copy of delivery receipt etc., issued in favour of D. It is very relevant to note that in this same proceeding, D had given
evidence that Padmavathi Ammal was in possession of the property subject matter of Ex-B104. Therefore, notwithstanding the delivery receipt
under which D is appropriate to have taken delivery of the property, it is clear from the oral and documentary evidence that right from the date of
the settlement deed in 1955, Padmavathi Ammal has been in possession and her possession has not been interrupted and had continued even after
the so-called delivery receipt. The findings in the other suit in which D was a witness are definitely have evidentiary value to support the case of the
respondents herein that this property is not available for partition. Therefore, the judgment and decree in O.S.NO.80 of 1983 must be confirmed.
Tr.A.S.No.411 of 1997:
This is the appeal against O.S.NO.182 of 1980. The judgment and decree of the Trial Court is set aside.
(i) As regards, item Nos.4 to 8, the decree must be modified. It has been held that the first respondent is entitled to half share in respect of Exs-B5
and B13. The fourth respondent had resisted the suit filed by D claiming that the first item belongs to him by virtue of the settlement deed, Ex-B110
dated 13-09-1972 where D.W.1 is one of the attestor and it was held that the item No.1 of O.S.No.182 of 1980 is in the possession of the fourth
defendant in that suit and therefore, the suit was dismissed as regards item NO.1. This finding is confirmed.
(ii) As regards respondents 2 and 3, there is no evidence regarding trespass and therefore, this is also dismissed.
Therefore, the judgment and decree of the Trial Court in O.S.No.180 of 1982 is allowed only to the extent of half share in the name of Vridhambal
in the properties covered by Exs-B12 and B13.
In the result, in A.S.No.410 of 1985 the judgment and decree are set aside and a preliminary decree is granted in favour of the appellant
excluding the undivided half share in the properties covered by Exs-B12 and B13 which are declared to belong to the third respondent. As regards
the properties covered by Exs-B82, B83 and B94, these have been held to be valid and therefore, in the final decree proceeding these properties
shall be allotted to D''s share. Thus, A.S.NO.410 of 1985 is allowed as above.
Tr.A.S.No.410 of 1997 is dismissed for the various reasons stated under the paragraph ""Property purchased in Court Auction"".
Tr.A.S.No.411 of 1997 is partially allowed declaring D''s title to an undivided half share in the property covered by Exs-A4 and A5 (Exs-B12
and B13) since it has already been held to have been purchased benami in the name of the fourth respondent and for recovery of possession of the
same. In other respects, the judgment and decree of the Trial Court stands unchanged.
An interesting foot note to this case is that this D who atleast on the materials on hand had two wives and two concubines, was living in a cow-
shed as seen from his evidence while the wives have separate residences. There is a moral in this if we care to see.