Mayandi Thevar and Thavasi Thevar vs Arumughathevar

K. Sampath, J.—The defendants are the appellants. The respondent filed suit O.S. No. 237/80 against the appellants herein before the

District Munsif, Paramakudi, for declaration and injunction on the following averments: The suit property and other properties forming one part and

two other items were purchased by the respondent''s father from Rameswaram Devasthanam on 20.1.1923 for valid consideration. After

purchase, the respondent''s father was in possession and enjoyment and was paying tax to the Government till he died in 1966. Originally the suit

property was in patta No. 113 in the name of the respondent''s father. The suit property and the property attached to it were in old Survey No.

34/2 measuring 4.94 acres. Survey No. 34/1 was south of Survey No. 34/2. After resurvey the said S. No. 34/1 property was sub-divided into

34/1 and 34/2 and S. No. 34/2 (old) was sub-divided into three portions, viz, 34/3, 34/4 and 34/5. These three sub-divided survey numbers were

divided into three portions north-south and the western most portion was allotted to Pitchandi Thevar, the middle portion to Palchamy Thevar and

the eastern most portion to the respondent. The other brother Mayandi Thevar was not allotted any property in the said survey numbers and he

was given some other property. To the portion allotted to the respondent portions in S.No34/3 and in S. No. 34/5 were included. Palchamy

Thevar also had a portion from the property allotted to him in S. No. 34/3, S. No. 34/4 and a portion in S. No. 34/5. Pitchandi Thevar''s property

was both in S. No. 34/3 and in S. No. 34/4 and all the sharers were enjoying their respective shares. The eldest brother of the respondent,

Pitchandi Thevar, died in 1972 and Palchamy Thevar in 1973. Their respective heirs inherited their respective lather''s shares. It is not necessary to

go into details. The suit property is in S.No34/3-C and S. No. 34/5-B on further sub-division. The respondent and his predecessors were paying

kist for the suit property for more than the statutory period continuously and had prescribed for title by adverse possession. On 21.6.1980, the

respondent was cutting the Kattukaruvel trees and the appellant obstructed Ids claiming right over the suit property. There was an earlier suit in

respect of old S. No. 34/2 and new S.No34/3, 34/4 and 34/5 by the respondent''s father Chinna Thevar against Kumarandi Thevar and his

brothers in O.S. No. 291/60 on the file of the District Munsif s Court, Paramakudi and it was decided in that suit that S.Nos.34/3, 34/4 and 34/5

belonged to the respondent''s father Chinna Thevar. The respondent had therefore title to the suit property and he was in possession of the same.

As the appellants claimed right over the suit properly, the suit for declaration and injunction came to be filed.

The appellants resisted the suit contending inter alia as follows:

The suit property and other properties were the joint family properties of Chinna Thevar and the appellants'' father Muthirulandi Thevar. The sale

under EX.A-1 by Chinna Thevar from Rameswaram Devasthanam was out of joint family funds and income and it was for the joint family and its

benefit. Chinna Thevar had no independent exclusive right over the said property. The others by Chinna Thevar were also for the benefit of the

joint family. Since Chinna Thevar was the eldest male member, the property was purchased in his name and patta also stood in his,name on ground

that there was no sub- division as alleged by the respondent. The partition set up in the plaint was not known by the appellants. The sub-division

alleged had been created by the respondent with the help of the village officials without the knowledge of the appellants. As per the sale deed

Ex.A-1 dated; 20.1.1923 S. No. 34/2 measured 4.94 acres. There was a partition between Chinna Thevar and Muthirulandi Thevar, father of the

appellants, in respect of S. No. 34/2 and S. No. 80/1 Senthivayakkal and other ancestral properties and in that partition, the northern half of S.

No. 34/2 fell to the share of the respondent''s father and the southern half fell to the share of the father of the appellants. S. No. 80/1 was allotted

to the appellants'' father. POT that a land ''atchukal'' was allotted to the respondent''s father. One Pulla Viruthi was allotted to the appellants'' father

and for that Ayyankoil Chei and Ooranikarai Punjai''s eastern half were allotted to the respondent''s father. The western half of Ooranikarai Punjai

was allotted to the appellants'' father. Similarly, other properties were also divided between the brothers. The parties were enjoying their respective

portions. Old S. No. 34/2 was allotted to the appellants'' share and the appellants were given patta No. 173. The northern half portion in new

S.Nos34/3, 34/4 and 34/5 were enjoyed by the respondent''s father and the same was being enjoyed by the respondent. The southern portion, as

already stated, was in the enjoyment of the appellants and their father. The first appellant was enjoying the western half and the second appellant

the eastern portion. The respondent had stated in the plaint that he was enjoying the second appellant''s portion. The appellants were paying tax to

the Government and they were enjoying the same and they had prescribed for title by adverse possession. The respondent had obtained patta for

the suit property without the knowledge of the appellants and those proceedings were not binding on the appellants. S. No. 80/1 Senthilvayakkal

was othied by the appellants on 28.9.1964 to one Muthanakonar. The southern half of the entire extent of S.Nos.34/3, 34/4 and 34/5 was in the

possession of the appellants. The respondent had no right in that. The respondent''s property was to the north of the appellant''s land. Only the

appellants art the Kattu Karuvel trees. The proceedings in O.S. No. 291/60 were not known to the appellants. In those proceedings, the

respondent''s father had admitted that the appellants were enjoying the suit property. The respondent was estopped from disputing the title of the

appellants. There was no cause of action. Documents had been created by the respondents behind the back of the appellants with the help of the

village officials. The suit was liable to be dismissed.

There was a reply statement filed by the respondent, averring as follows:

There was a division between the respondent''s father Chinna Thevar and the appellants'' father Muthirulandi Thevar about 65 years prior to the

suit. The averment by the appellants that Chinna Thevar was dealing all the properties in his capacity as Manager was not true. There was division

between the brothers even prior to Ex.A-1 dated 20.1.1923. The properties covered by Ex.A-1 were not purchased out of joint family income or

for the benefit of the joint family. The other allegation in the written statement that the northern half was allotted to the respondent''s father and the

southern half was allotted to the appellants'' father was also not true. S. No. 80/1 Senthivayakkal was under othi right to Periya Mayandi Thevar,

father of Chinna Thevar and Muthirulandi Thevar. The othi was not redeemed and the property covered by othi, viz, S. No. 80/1 was allotted to

the appellants'' father. The property had been in the possession of the appellants'' father for over the statutory period and therefore patta in respect

of S. No. 80/1 was given to the appellants'' father. The suit property was actually in the possession of the respondent. The appellants did not

acquire any prescriptive right. As the respondent attempted to redeem the Senthivayakkal in S. No. 80/1, the appellants tried to disturb the

respondent''s possession.

The trial court framed the necessary issues and found on the materials as follows:

The entire property covered by S.Nos34/3, 34/4 and34/5 including the suit property originally belonged to the predecessors-in-title of the parties.

The respondent was not in possession of the suit property. He had no title and he had also not prescribed for title by adverse possession. The

appellants bad proved their title and possession for entire S. No. 34/3 and the southern portion in S.Nos.34/4 and 34/5 and they had acquired title

by prescription. The respondent was estopped from disputing the title of the appellants as the respondent''s father had admitted the title of the

appellants in O-S. No. 291/60. So holding the learned District Munsif by his judgment and decree dated 13.4.1983 dismissed the suit. However,

on appeal by the respondent in A.S. No. 75/83 the learned Subordinate Judge, Madurai, by his judgment and decree dated 30.4.1984 allowed

the appeal and decreed the suit as prayed for with costs. Aggrieved, the present Second Appeal has been filed by the appellants.

At the time of admission the following substantial questions of law were framed for consideration in the Second Appeal :

(1) Whether the presumption of the lower Appellate Court that the property under Ex.A-1 was purchased by the plaintiffs father in his individual

capacity is correct?

(2) Whether the decision in O.S. No. 291/60 has estopped the plaintiff from claiming exclusive title?

(3) Whether Exs.B-1 to B-3 establish that the plaintiffs father and appellants'' father are joint owners, being joint pattadars? and

(4) Whether the decision of the lower appellate Court is contrary to law for non-consideration of vital documents filed by the appellant?

To appreciate the actual dispute between the parties it is necessary to have a genealogy which is as follows:

From the genealogy, it is seen that Chinna Thevar and Muthirulandi Thevar were the sons of one Periya Mayandi Thevar. Chinna Thevar died in

the year 1966 leaving behind four sons Pitchandi Thevar, Palsamy Thevar, Arumuga Thevar and Mayandi Thevar. Pitchandi Thevar died in the

year 1972 leaving behind his son Thavasi Thevar. Palsamy Thevar died in 1973 leaving behind his sons Thavasi and Chelliah.

The third son Arumuga Thevar is the plaintiff in the suit and the respondent in the Second Appeal. Muthirulandi Thevar died in the year 1956

leaving behind Mayandi Thevar and Thavasi Thevar, the defendants in the suit who are the appellants. It is seen from the: materials on record that

the brothers Chinna Thevar and Muthirulandi Thevar constituted a joint family along with their father Peria Mayandi Thevar. It is also seen that the

joint family owned ancestral properties. The respondent pleaded a partition about 65 years prior to the suit, whereas the appellants pleaded a

partition after EXJ\-1 dated 1923 in or about 1940. The decision in the Second Appear will depend on as to when the partition between the

brothers took place. In the reply statement, the respondent had pleaded that the partition was 65 years prior to the suit. There is absolutely no

material to substantiate this case. For the Partitions pleaded by both the parties,,there is no documentary evidence. Only on the basis of the other

materials, documents and oral evidence we have to fix the date of the partition..

It is contended by the learned Counsel for the appellants Mr.G. Kathirvelu that item No. 2 covered by Ex.A-1 was admittedly in the possession

of the defendants and Ex.A-1 was in the year 1923. If one of the items covered by Ex.A-1 was in the possession and enjoyment of a particular

party, it would necessarily follow that the party had been allotted that property and such allotment or division could have been only subsequent to

ExA-1 of the year 1923. The consideration under EX.A-1 had been paid in driblets over several years and admittedly Chinna Thevar was the

elder of the two brothers and he was the kartha of the joint family and the properties were therefore purchased in his name in the year 1923. The

decision in the suit O.S. No. 291/60 would not advance the case of the respondent in as much as the appellants were not parties to those

proceeding nor was their father Muthirulandi Thevar made a party. The zamin patta alleged to have been issued to the respondent''s father also

would not in any way advance their case as the zamin patta was not a document of title. The respondent had not established the oral partition

pleaded by him and the suit had therefore to fail.

Mr.B. Rajagopal, learned Counsel for the respondent, submitted that Exs.A-1 to A-3 all stood only in the name of Chinna Thevar, father of the

respondent, that there was nothing to show that he purchased with joint family funds and the subsequent dealings were for the joint family and

Chinna Thevar and Muthirulandi Thevar. Patta had also been issued to Chinna Thevar by Rameswaram Devasthanam for fasti 1335. The sale

deed Ex.A-84 dated 11,11.1948 under which one Karanthamatai for himself and on behalf of his minor sons sold some property to Muthirulandi

and the boundary description given in ExA-84 supported the respondent''s case. The learned Counsel also submitted that the respondent''s oral

evidence as P.W.I saying that the partition took place 65 years prior to the suit had not been challenged by cross-examination, that Ex.A-2 othi

was redeemed by Chinna Thevar in the year 1959 and if really the appellants'' father and the appellants had nothing to do with the properties

covered by ExA-1, the appellants should have joined in the discharge of Ex.A-2 othi.

The trial Court took into consideration the particular fact that S. No. 80/1 Sentbivayakkal was in the possession of the appellants'' father and

admittedly Senthivayakkal property was purchased under EILA-1 on 20.1.1923 and if really the partition between Chinna Thevar and

Muthirulandi Thevar was earlier to Ex.A-1, Senthivayakkal property could not have been cither allotted to the appellants'' father nor could it be is

the possession of the appellants. The trial court also found that the decision in O.S. No. 291/60 would not bind, the appellants its they were not

parties to those proceedings. The trial Court in fact found that in ExA-86 judgment in O.S. No. 291/60 there was a clear finding by the Court

regarding the possession of the suit property with the appellants as claimed by them..

The Lower Appellate Court entertained an application in I.A. No. 12/84 for reception of additional evidence and received three documents

and marked them as ExsA-87 to A-89. These three documents are only registration copies of two othi deeds and one sale deed. The Lower

Appellate Court received these documents as a matter of course and stated that those documents were more than 30 years old and they need not

be proved and they could be received as additional evidence. The lower Appellate Court also relied on EJLA-84, a sale deed by one

Karantbamalai for himself and on behalf of his minors in favour of Muthirulandi, the father of the appellants, and according to the learned

Subordinate Judge, in the description of the property purchased the eastern property was shown as the respondent''s father''s property and this

would clinch the issue

The lower Appellate Court in paragraph 12 of its judgment has observed as follows:

I am clearly of the view that the lower Appellate Court has cast the onus wrongly on the appellants. Admittedly, the family was a joint family and it

possessed joint family properties. The respondent''s father Chinna Thevar was the elder male member and unless the respondent conclusively

established that the alleged partition between Chinna Thevar and Muthirulandi Thevar was prior to Ex.A-1, the presumption in law would be that

the acquisition was with joint family funds and for the benefit of the joint family.

In Mulla''s Principles of Hindu Law Sixteenth Edition at page 260, the position is stated as follows:

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.

The other aspect is that the property was purchased in the name of the respondent''s father. As early as in Daulat Ram v. Meharchand (1887-

15 Calcutta 70 - 14IA 187) it has been held as follows:

The managing principal could effectively represent the entire family.

The circumstances in the present case clearly showed that Chinna Thevar was the manager of the family and the property involved was acquired

for the joint family. As already observed, the lower Appellate Court clearly cast the onus on the wrong party to show that the properties were the

joint family properties. The onus was wholly on the respondent to show that the property was acquired with the independent funds of Chinna

Thevar. Unless the partition set up by the respondent was established as having taken place prior to EXA-1, it should follow that the acquisition

under EJLA-1 was for the benefit of the joint family. The lower Appellate Court has again held in paragraph 13 of its judgment that the decision in

O.S. No. 291/60 would bind the appellants notwithstanding that they were not parties to those proceedings. The finding by the lower Appellate

Court that EX.A-1 purchase was by the respondent''s father as manager of the joint family had not been substantiated by the appellants, is also

clearly wrong. The onus was entirely on the respondent to show that ExA-1 properties belonged exclusively to his father by purchase and that the

purchase was not on behalf of the joint family ox for the benefit of the joint family. The documents filed before the Appellate Court, viz. ExsA-87

to A-89 ought not to have been received by the lower Appellate Court as a matter of course. In any event, they did not advance the case of the

respondent. They are only in conformity with the case of the appellants that the partition between Chinna Thevar and Muthirulandi Thevar was

subsequent to Exs.A-1 and A-3. Unless the oral partition 65 years prior to the suit was established by the respondent, the case of the appellants

that the partition was subsequent to Exs.A-1 to A-3 will have to be accepted. This is also in a way supported by EXJV84 dated 11.11.1948

under which Muthirulandi, father of the appellants, purchased some property from one Karanthamalai. A very important aspect of the whole

question was clearly lost sight of by the lower Appellate Court. If really the partition was prior to ExA-1, it was inconceivable that the property

covered by Ex.A-1 could have been in the possession of the appellants'' father and subsequent to his death with the appellants. The case of the

respondent that there was some othi in favour of his father Chinna Thevar and that othi had not been redeemed and since possession had became

adverse, patta was granted in respect of the property covered by S.No-80/1 to the appellants'' father cannot also be accepted. This also has not

been substantiated by any material evidence. If some othi right in respect of S. No. 80/1 was with the family, there was no question of the property

forming the subject matter of sale under ExA-1 had not been explained.

I am also of the view that Exs.B-1 to B-3 clearly show that the properties, were the joint family properties of Chinna Thevar and Muthirulandi

Thevar at least till 1945. The partition should have been only subsequent to 1945. The two brothers were the joint pattadars as seen from Exs.B-1

to B-3 and the case of a partition 65 years prior to the suit ought to have been rejected by the lower Appellate Court. The respondent had come

to court with a specific case of partition and from the documents filed and the oral evidence it is not possible to come to a conclusion that the

partition was prior to ExA-1. The lower Appellate Court was clearly wrong in not considering the vital documents filed by the appellants. The

alleged discharge of the othi created under Ex.A-2 by the respondent''s father would not also in any way advance the case of the respondent.

Admittedly, Muthirulandi thevar died in 1956. Chinna Thevar, father of the respondent, was alive till 1966. Ex.B-41 decree in O.S. No. 291/60

would also estop the respondent from claiming exclusive title to the suit property. The grant of zamin patta to the respondent''s father under ExA-4

to A-20 also would not advance the case of the respondent. They relate to the period 1925 to 1948 and they are consistent with the case of the

appellants that the partition was long subsequent to Kx.A-1. Chinna Thevar was the elder of the brothers and he was the kartha of the joint family.

It was only in the fitness of things that he was issued with patta and it was only in his capacity as joint family manager. The irresistible conclusion

that can be reached on the bask of the documents and the oral evidence is that the southern portion in S.Nos.34/4 and 34/5 belonged to the

appellants and the northern portion belonged to the respondent. The decree in O.S. No. 291/60 would also only prove the case of the appellants.

The approach by the lower Appelate Court is clearly erroneous. The lower Appellate Court had not focused its attention on the weighty findings of

the trial Court and had also not examined the materials on record in that respect in a proper manner. The lower Appellate Court had failed to draw

proper inference from true facts and to apply the law in proper perspective and this necessitates inference u/s 100 of the Code of Civil Procedure.

Consequently, the substantial questions of law raised are answered as follows:

(1) The presumption of the lower Appellate Court that the property under EX.A-1 was purchased by the plaintiff''s father in his individual capacity,

is not correct and is not warranted by the established legal position under Hindu Law.

(2) The decision in O.S. No. 291/60 would estop the respondent from claiming exclusive title to the suit property.

(3) Exs.B-1 to B-3 clearly establish that the respondent''s father and the appellants'' father were joint owners being joint pattadars.

(4) The decision of the lower Appellate Court is contrary to law for non-consideration of vital documents, disproving the case of the respondent

and establishing the case of the appellants.

The Second Appeal will stand allowed. The judgment and the decree of the lower Appellate Court are set aside and those of the trial Court

restored. There will be no order as to costs in the Second Appeal.