Nanja Reddy (deceased) and Others vs Ramappa Naidu and Others

M. Venugopal, J.—The Appellants have filed the present Second Appeal as against the Judgment and Decree dated 27.09.1996 in A.S.

No. 75 of 1996 on the file of the Learned Sub Judge, Hosur.

The First Appellate Court, viz., the Learned Sub Judge, Hosur, while passing Judgment in A.S. No. 75 of 1996, has, among other things,

observed that ''it is not to be known that the Plaintiffs are in enjoyment of the suit properties as one property and on the basis of Commissioner''s

Report and Plan, the Plaintiffs are not entitled to get the relief of permanent injunction and further that the Plaintiffs have not proved that they are in

separate enjoyment of the suit properties.

Also, the First Appellate Court has opined that ''as far as the present case is concerned, the partition mentioned by Defendants 1 to 5 have been

held to be true and therefore, the other Defendants have got a right to sell it to the 1st Defendant which cannot be injuncted by the Plaintiffs and all

the more since Venkata Reddy possessed only 8 acres of punja land and each to their share has got 4 acres in partition, as seen from the oral

evidence and further that it is not established that Venkata Reddy has separate income etc., and as such, it cannot be construed that from the

income of 4 acres of ancestral property, the properties have been purchased and in the instant case on hand, the averment that 40 years ago a

partition has taken place between the 1st Plaintiff''s father and the 1st Defendant has not been proved and that the Plaintiffs have not approached

the Court with clean hands and resultantly, allowed the Appeal by setting aside the Judgment and Decree passed by the trial Court in the main suit

and dismissed the suit, leaving the parties to bear their own costs.

Before the trial Court, in the main suit, 1 to 6 issues have been framed for adjudication. On the side of the Plaintiffs, witnesses P.W.1 to P.W.4

have been examined and Exs.A.1 to A.20 have been marked. On the side of Defendants, witnesses D.W.1 to D.W.3 have been examined and

Exs.B.1 to B.7 have been marked. Also, Ex.C.1-Commissioner''s Report and Ex.C.2-Plan have been marked.

The trial Court, on an appreciation of oral and documentary evidence available record, while passing the Judgment in O.S. No. 68 of 1980, has

come to the resultant conclusion that ''in respect of suit properties in Survey No. 903/1, 903/2, 906/2, 579 and Survey No. 580 the Plaintiffs are

entitled to the relief of declaration and in respect of the other lands, it has dismissed the suit without costs.

At the time of admission of the Second Appeal, the following substantial questions of law have been framed by this Court.

(a) Whether the lower appellate court has considered the principle that in order to constitute a joint family, they ought to have been acquired from

a nucleus which is sufficient and adequate to have the later acquisitions, in additions to joint family properties already in existence?

(b) When it is incumbent upon the defendants, who assert that the suit properties were acquired out of joint family property to establish it is the

learned Subordinate Judge correct in shifting the burden on the plaintiff?

Contentions, Discussions and Findings on substantial questions of law 1 and 2:

According to the Learned Counsel for the Appellants, the trial Court ought to have decreed the suit as the Respondents/Defendants have failed

to prove the alleged partition between the Plaintiffs father and their father and further, the trial Court has committed a mistake in coming to the

conclusion that there has been a partition between the Plaintiffs and Defendants fathers based on the boundary description of Ex.A.1-Sale Deed

dated 09.04.1952, Ex.A.2-Sale Deed dated 04.07.1952 and Ex.A.9-Sale Deed dated 05.04.1952.

Advancing her arguments, the Learned Counsel for the Appellants submits that when Ex.A.1-Sale Deed dated 09.04.1952, Ex.A.2-Sale Deed

04.07.1952 and Ex.A.9-Sale Deed dated 05.04.1952 pertaining to suit Item No. 5 gives the definite southern boundary as belonging to Venkata

Reddy the mistake in describing the southern boundary of Item No. 5 in the plaint as belonging to the deceased 1st Defendant will not prevail over

the registered document and moreover, the trial Court is not correct when it has presumed that there has been a partition only after the year 1952

between the Plaintiffs father and 1st Defendant based on the discrepancy in the description of the southern boundary in Item No. 5 of the suit

property.

The Learned Counsel for the Appellants urges before this Court that when Exs.A.1 to A.9-Sale Deeds relating to Item Nos. 1 to 5 of the suit

properties are purchased in the individual name of Plaintiffs father, the burden of proving that they have been purchased in the name of Plaintiffs

father only as Manager of the joint family lies on the Defendants and the Respondents/Defendants on their failure to prove that the purchases have

been made on behalf of the joint family, the trial Court should have decreed the suit.

On the side of Appellants/ Plaintiffs, a plea has been raised to the effect that the trial Court has committed an error in coming to the conclusion

that the suit properties have been purchased only as joint family properties as the properties stand in the name of Plaintiffs father, who is the elder

member of the family and also the fact that the Plaintiffs have not been cultivating the land for more than three years, it cannot be a basis to hold

that they have not been in possession of the property.

Lastly, it is the contention of the Learned Counsel for the Appellants that the finding of the trial Court that Plaintiffs father could not have

purchased the suit properties out of the income from the 4 acres, he got out of partition is not a correct one and it is for the Plaintiffs to prove the

surplus income through which the other properties have been acquired, notwithstanding the fact that the 1st Respondent/1st Defendant (deceased)

was a junior member, but in short, the material facts of the case have not been adverted to by the trial Court in a proper perspective, which has

resulted in the impugned Judgment being passed against the Appellants and therefore, prays for allowing the Appeal.

In response, the Learned Counsel for the Respondents/ Defendants supports the Judgment and Decree passed by the First Appellate Court in

A.S. No. 75 of 1996 and submits that the First Appellate Court has rightly come to the conclusion, upon analysing the oral and documentary

evidence on record adduced by the parties, that it is not established by the Plaintiffs that they have been in enjoyment of the suit properties

separately and the partition pleaded by the Defendants 1 to 5 has been held to be true and therefore, Defendants 2 to 5 have a right to sell the

property to the 1st Defendant (since deceased) and as such, the Appellants are not entitled to obtain any relief in the suit and further, the Appeal

filed by the Appellants/ Defendants 2 to 5 allowed by the First Appellate Court in reversing the Judgment and Decree of the trial Court may not be

disturbed by this Court at this stage of the Second Appeal.

In support of the contention that it is for the individual who asserts that a particular property is a joint family property to establish that fact, the

Learned Counsel for the Appellants cites the decision of Honourable Supreme Court Mst. Rukhmabai Vs. Lala Laxminarayan and Others,

wherein it is held as follows:

There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by

definement of shares which is technically called ""division in status"", or an actual division among them by allotment of specific property to each one

of them which is described as ""division by metes and bounds."" A member need not receive any share in the joint estate but may renounce his

interest therein; his renunciation merely extinguishes his interest in the estate but does not affect that status of the remaining members vis-a-vis the

family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be

expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a

party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior

purpose. But there is no presumption that any property, whether moveable or immovable, held by a member of a joint Hindu family, is joint family

property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that

there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the

family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint

family property.

She also seeks in aid of the decision of Honourable Supreme Court Makhan Singh (D) by Lrs. Vs. Kulwant Singh, wherein it is laid down as

follows:

There is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to

prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family

property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be

self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.

The interference of the High Court in second appeal should be clearly minimal and would not extend to a mere reappraisal of the evidence.

Therefore had the High Court on an appreciation of the evidence, taken a view different from that of the trial court and the first appellate court, the

exercise would have been clearly unjustified. However, the High Court has not made a simpliciter reappraisal of the evidence to arrive at

conclusions different from those of the courts below, but has rightly corrected an error as to the onus of proof on the existence or otherwise of a

joint Hindu family property.

There is no evidence to prove that the property was joint family property save a self-serving and stray sentence in the statement of the defendant

that the property had been purchased from the income of the joint Hindu family. The defendant had denied the execution of the two sale

agreements at the initial stage, but faced with a difficult situation had later admitted that the agreements had been executed, leading to a finding by

all three courts below to that effect. There is also a clear recital by the defendant that the property belonged to him and specific boundaries of the

property were also given therein. The defendant''s statement had also been recorded by the Sub-Registrar wherein he stated that he was ready to

execute the sale deeds but the plaintiff had not appeared to do so. Likewise, in the original written statement a case of denial of the execution of the

agreements had been pleaded and it was only by way of an amendment that the plea that the property belonged to the joint Hindu family had been

raised.

The Learned Counsel brings it to the notice of this Court to the decision Ranganayaki Ammal and Others Vs. S.R. Srinivasan and Others,

whereby and whereunder it is held thus:

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 the properties or the amounts standing in

the names of female members are properties of the joint family. It is by now well established that properties standing in the names of the female

members are their own unless there is definite clinching proof to the contrary adduced by the challenging member. It is not for the female member

to prove how she acquired the same. In ordinary cases also where a plea of benami is set up it is for the person who comes to Court to establish

that the properties standing in the name of the other co-parceners or members are joint family properties which stemmed from the joint family

nucleus. 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.

The burden is very heavy on the plaintiff to establish the existence of joint family nucleus. The mere lapse of time will not relieve him from

discharging his obligation. The march and passage of time cannot be taken advantage of by the challenging coparcener and this by itself would not

enable him to relieve himself of his legal duty to prove the obvious, namely, that the family was possessed of funds and there was sufficient joint

family nucleus from which the further accretions were made by the member managing the same.

On the side of the Appellants/Plaintiffs, reliance is placed to the decision Munesh Kumar Agnihotri and Others Vs. Lalli Prasad Gupta since

deceased by LRs. and Others, wherein it is held hereunder:

The lower appellate Court rightly held that in law there is no presumption that a Hindu joint family is possessed of joint funds and the onus lay on

the one who claims that the business was started with the joint family funds, to prove so.

Besides the above, the Learned Counsel for the Appellants cites the decision Abdul Aziz Chaudhury and Ors. v. Barindra Kumar Das and

Ors. AIR 1957 Gau 115 wherein it is observed as follows:

Where a member of a joint Hindu family comes forward with a claim that the purchase of the property by another member though in his own name

alone was made by him as a karta, with the family funds, the onus of establishing that there was nucleus with the income of which the property

could have been acquired would be on him.

Further, the Learned Counsel for the Appellants draws the attention of this Court to the decision of Honourable Supreme Court Shrinivas

Krishnarao Kango Vs. Narayan Devji Kango and Others, wherein it is held as follows:

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 was 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. AIR 1947 PC 189 (192), Relied on.

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 from 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.

Where the finding of the Courts is that the income from the ancestral lands was not sufficient even for the maintenance of the members and the

houses in dispute are substantial, burden is on the plaintiff who alleges the houses to have been acquired out of joint family funds, to establish it.

Held that even if the contention that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the

acquisitions were made without the aid of joint family funds, that burden had been discharged.

Likewise it was held that since the ancestral Watan lands were intact, and were available for partition, and the small income derived from them

must have been utilised for the maintenance of the members of the family, whether it were held that the plaintiff had failed to discharge the burden

which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made

without the aid of joint family funds, the result was the same. AIR 1947 PC 189, Relied on.

P.W.1 (deceased 1st Plaintiff), in his evidence, has deposed that his father Venkata Reddy and maternal uncle the 1st Defendant (since

deceased) have 50 years ago orally partitioned the ancestral properties and after the partition, the 1st Defendant (since deceased) and his mother

Pinnamma have gone to the village and after the partition, his father has purchased some items of property as a acquisition one and has purchased

some properties in two survey numbers from Denkanikottai Iyer and 40 years have elapsed after purchasing of the said properties and his father

from Pillareddy has purchased one property in Survey No. 906 from Pillareddy.

It is the further evidence of P.W.1 that his father has purchased the property from Pillareddy Arijan Thimmayya, Palakari Adaikalappan,

Sourappa, Muthappa and he is not aware of some survey numbers and Ex.A.1 is the Sale Deed dated 09.04.1952 in respect of property

purchased by his father from Petha Venkatappa, Chinna Venkatappa, Munusamy and Ex.A.2 is the Sale Deed dated 04.07.1952 executed by

one Podiappa in favour of his father in respect of a property and Exs.A.3 to A.8 are the Sale Deeds in respect of properties purchased by his

father from the concerned persons and Ex.A.9 is the Sale Deed dated 05.04.1952 in and by which his father has purchased a property from

Venkata Ramayya and Ex.A.10 is the loan document for Rs. 600/ - and his father before availing the loan has executed pronotes in favour of some

persons and has purchased the properties on obtaining the loan and his father has also paid the loan amounts and got back the pronotes and kept

the same in his house and after the death of his father, the pronotes have come to his hands and one Patsakshipuram Munsif Siddareddy,

Anumaiya, Machinayakkanpalli Seluva Iyangar are the persons in whose favour his father has executed pronotes which is Ex.A.11 series.

The evidence of P.W.1 is to the effect that the person who has executed the pronote and the persons in whose favour the pronotes have been

executed are no more and in respect of suit properties patta stands in the name of his father, mother Basamma and in his name and the pattas are

Ex.A.12 series and the tax receipts paid in respect of the suit properties are Ex.A.13 series (48 numbers). Also, the evidence of P.W.1 is to the

effect that his father has sold 13 cents in Survey Nos. 903/1, 903/2 to one Ramayya as per Ex.A.14.

Continuing further, it is the evidence of P.W.1 that Siddareddy has filed a case against his father because his father has not paid the money and

he has discharged loan of his father and a receipt for the said discharge is Ex.A.15 and Ex.A.16 is the Sale Deed dated 20.12.1952 executed by

his father in favour of Munusamy Reddy in respect of 13 cents in Survey No. 903/1 and Ex.A.17 is the Sale Deed dated 31.12.1979 executed by

the 1st Defendant in favour of Defendants 2 and 3 and Ex.A.18 is the Sale Deed dated 31.12.1952 executed by the 1st Defendant in favour of the

Defendants 4 and 5 and Ex.A.19 is the notice dated 26.10.1978 issued by him to the 1st Defendant and another notice dated 09.01.1979 is

Ex.A.20 and that the Defendants have no right in respect of the suit properties either on the basis of Sale Deeds or on ancestrally basis and

therefore, he has filed a suit for injunction praying for the relief of restraining the Defendants 2 to 5 not to enter into the suit properties.

P.W.1 (in his cross examination) has deposed that Survey Nos. 869, 870, 871, 872 are ancestral properties and that the 1st Defendant has

not produced documents for selling the properties and that he claims right in Survey No. 903/1 measuring an extent of 1 acre and 20 cents and

further that in Survey No. 903/2 his father has a right to an extent of 2 acres and 20 cents and in this 80 cents to Nanja Reddy and 13 cents to

Rame Goudu, 13 cents to Munusamy have been sold and in Ex.A.20 he has admitted the boundary as Nanja Reddy land and that the 1st

Defendant and his father are brothers and during his father''s 15 years of age his grandfather has expired and his father is the elder and 1st

Defendant is the younger one.

It is the specific evidence of P.W.1 that after the death of his grandfather, he does not know as to who has been in possession of suit

properties and that they have been in possession and his father and it is not correct to state that before filing of the suit, 20 years ago partition has

taken place between his father and the 1st Defendant and it is not correct to state that his father and the 1st Defendant before 20 years have

partitioned the properties and the properties purchased out of the ancestral properties income.

P.W.2 in his evidence has deposed that during the life time of Venkata Reddy i.e. that of the 1st Plaintiff''s father and the deceased 1st

Defendant partition has taken place among them and prior to the date of purchase of land from said Venkata Reddy, they have partitioned

themselves and he has purchased 13 cents of land from Venkata Reddy at the sale consideration of Rs. 100/ - and the said Venkata Reddy after

partition has acquired the properties in a self-acquisition manner and both Venkata Reddy and the deceased 1st Defendant possessed 8 = acres of

ancestral land and one Rame Goudu has purchased 13 cents of land and his maternal uncle has also purchased 60 cents of land. For these

persons, Venkata Reddiar has sold the lands and apart from this, Venkata Reddy possessed 1 acres of land and Venkata Reddy has purchased 8

acres of properties from Mathakondapalli, Sindhareddy and from him and therefore, in these properties, the 1st Defendant has no manner of right.

P.W.2 in his cross examination has deposed that to some extent there has been a Punja and Nanja land ancestrally from which good income

has been received and it is not correct to state that the 1st Plaintiff''s father Venkata Reddy as Family Manager through the income from the family

property has purchased the property in his name.

P.W.2 in his evidence has tacitly admitted that at the time of partition Venkata Reddy (aged 23, 24 years) has been the Family Manager and

he used to look after the properties including the purchase of the same. Also, it is the evidence of P.W.2 in cross examination that Kuruvi Reddy''s

properties have been sold by his wife to the Plaintiffs, but the sales have not been effected and that 10 years have elapsed from the date of sale.

Moreover, P.W.2 has also deposed in his evidence that at the time of Ex.A.3-Sale Deed dated 22.06.1954 the 1st Plaintiff''s father has been

running the family and at the time of purchase of property, the 1st Plaintiff''s father Venkata Reddy acted as Family Manager.

The evidence of P.W.3 is to the effect that the 1st Plaintiff''s father is Venkata Reddy and Venkata Reddy''s brother is the 1st Defendant and

their family possessed ancestrally a property of 7, 8 acres of land and the Plaintiff''s father has purchased properties and further the Plaintiff''s father

has purchased the property from Madalamuthu, Sebasthiyan and one Munithimmayya and from Chikkamma, he has purchased some property and

the Plaintiff''s father has purchased the lands in Survey Nos. 650/2, 652/2 and Survey No. 903/1, 903/2, 906/2 belongs to the Plaintiff''s father as

per sale and Survey No. 869/70, 71, 72 belongs to the Plaintiff''s father ancestrally.

P.W.3 (in his cross examination) has stated that at the time of writing of the documents, the Plaintiff''s father has been running the family and to

a suggestion that at the time of purchase of the properties, the Plaintiff''s father Venkata Reddy has been a joint Family Manager. P.W.3 has stated

that they have running the family separately and patta in the name of Venkata Reddy and Guruvireddy and he does not know at what point of time

they have partitioned among themselves and the nature of properties which they obtained in partition and also that he does not know whether the

1st Defendant has given properties separately.

It is the evidence of P.W.4 that the Plaintiff''s Grandfather possessed 8 acres of land ancestrally and that property has been orally partitioned

between the Plaintiff''s father and the 1st Defendant 20 years ago and that the Plaintiff''s father Venkata Reddy has purchased properties which has

been in possession of the Plaintiff and further that the Plaintiff''s father has purchased properties from Thenkanikottai Srinivasa Iyer,

Munithimmayya, Pethamuniappa Naidu, Adaikalappa, Sourappan etc. and after executing the pronote and obtaining loan, the Plaintiff''s father has

purchased the properties and the 1st Defendant has no right in the properties purchased by Venkata Reddy.

In his cross examination, P.W.4 has categorically stated that he knows about the 1st Defendant selling the properties to the Defendants and

further that 20 years ago Venkata Reddy has been managing the family affairs and at the time of partition, he has not gone and he knows about the

partition that has taken place 20 years ago in respect of the ancestral properties and he does not know the partition that has taken place in respect

of other properties and he also does not know whether Plaintiff''s father has purchased the property to any individual.

D.W.1 (the 2nd Defendant) in his evidence has stated that the 1st Plaintiff''s father and the 1st Defendant are elder and younger brothers and

they remained as a joint family and they possessed ancestral property of 8 = acres of land, 1 = acres of Punja land and Venkata Reddy has being

the family Manager and when Venkata Reddy and the 1st Defendant have been in joint family, at that time they have purchased the properties and

they have written the said purchase of properties in the name of Venkata Reddy and those properties have been purchased from out of the

ancestral property and since Venkata Reddy has been intelligent and also has been the family Manager, properties have been purchased in his

name.

Also, D.W.1 goes on to add in his deposition that 35 years before partition has taken place between Venkata Reddy and the 1st Defendant

and he along with his brother viz., 3rd Defendant have purchased from the 1st Defendant (since deceased) 42 cents in Survey No. 903/1, 36 cents

in Survey No. 906/2, an extent of 1 acre 12 cents in Survey No. 903/1, 1 acre 43 cents in Survey No. 906/2 as per Ex.B.1-Sale Deed dated

31.12.1979 and the Defendants 4 and 5 have purchased from the 1st Defendant (since deceased) 25 cents in Survey No. 903/1 and the two sales

have taken place on the same day and Ex.B.2 is the joint patta standing in the name of Venkata Reddy and the 1st Defendant and the kist receipts

paid by the 1st Defendant is Ex.B.3 and the tax receipts paid by him is Ex.B.4 and the property which he has purchased in Ex.B.1 has been

allotted to the 1st Defendant and the former Panchayat President Srinivasa Reddy knows about the family partition details.

It is the further evidence of D.W.1 that he has purchased 42 cents out of 67 cents in Survey No. 903/1 which has come to the share of 1st

Defendant and Defendants 4 and 5 have purchased 25 cents in Survey No. 903/1 and the balance 13 cents of land have been sold by the

Plaintiff''s father already to one Munusamy Reddy and the remaining land remains with the 1st Plaintiff and in Survey No. 906/2, 36 cents belongs

to the Plaintiff-Nanja Reddy and the balance belonging to the 1st Defendant and 36 cents which they have purchased as a boundary of Panchayat

Road and Poramboke land on the eastern side, on the western side the land of 1st Defendant, on the northern side Appanna Reddy''s land and the

southern side Plaintiff-Nanja Reddy''s land and on the eastern side of Survey No. 903/1, 42 cents the 1st Defendant possessed a land which he

has sold.

The evidence of D.W.1 (in cross examination) is to the effect that he does not know the survey number of ancestral properties and he has not

taken encumbrance certificate and also not obtained the Adangal and he has not seen any record as to how the property belongs to the 1st

Defendant.

D.W.2 in his evidence has stated that he is the 4th Defendant in the suit and he has purchased 25 cents in Survey No. 903/1 along with his

brother 5th Defendant as per Ex.B.5-Sale Deed dated 31.12.1979 and the scribe of the said document Srinivasa Iyer has expired and from the

date of purchase the property has been in his enjoyment and before that it belongs to 1st Defendant who has got the same by means of partition

and before partition, the Plaintiff''s father Venkata Reddy has acted as a Family Manager and in the ancestral property there have been good

income and orally partition has taken place between the 1st Defendant and the Plaintiff 35 years ago.

In the cross examination, it is the evidence of D.W.2 that after partition there is no separate patta in the name of 1st Defendant and in Ex.B.5

to a suggestion that it is mentioned that the property belongs to 1st Defendant as a self-acquired one, an answer is that the said property has come

by way of self-acquisition and through partition and for Ex.B.5-Sale Deed the 1st Defendant has not shown him the prior title deed and also not

given him the patta and he does not know the patta number of the land he has purchased.

D.W.3 in his evidence has stated that after the death of parents of Venkata Reddy, Venkata Reddy has acted as a Manager of the family and

their family possessed approximately 8 acres of Punja and 1 acre of Nanja land and within the year 1960, 1 or 2 years before they have

partitioned the properties and he knows about the partition made by one M. Nanja Reddy, Venkata Reddy, Appanna Reddy and he has married

the sister of Appanna Reddy and when Venkata Reddy has remained as a joint family, he has purchased some properties and he has also obtained

loans and repaid the same from the family income and the properties purchased by Defendants 2 to 5 have been allotted to the share of the 1st

Defendant and he has signed as a witness in Exs.B.1 and B.5-Sale Deeds and that the properties are in possession of Defendants 2 to 5. In cross

examination, D.W.3 has stated that it is not correct to state that the Exs.B.1 and B.5 documents have been created fraudulently and he has not

asked for the parent document.

According to the Learned Counsel for the Appellants, the 1st Plaintiff''s father has purchased the property in his own capacity and it is for the

Respondents to prove otherwise and further, mere discrepancy in boundary will not disprove the partition and that the Respondents/Defendants

have not established that the joint family existed till the year 1960 and the sale deeds show that it is a separate purchase and that the 1st Plaintiff''s

father has earned income through agriculture and he borrowed money during the period for which the properties have been purchased and also

that the Respondents/ Defendants have not established nucleus.

Per contra, it is the contention of the Learned Counsel for the Respondents that when Kartha purchases a property the presumption is in

favour of his family and that Venkata Reddy is the eldest member of the family and it is not the case of the Appellants that Kartha possessed own

income and there is no evidence in the instant case to show independent source of income and in respect of properties purchased in Venkata

Reddy''s name alone the suit is filed and the suit is not filed in respect of all the ancestral properties and before the trial Court mother has not been

examined and P.W.2 in his evidence has stated that Venkata Reddy and the 1st Defendant both of them possessed ancestral property of 8 = acres

and from small extent of ancestral lands of Nanja and Punja, good income has been received and further it is the evidence of P.W.3 that the

Plaintiff''s father and the 1st Defendant family possessed 15 acres of land and Exs.A.1 to A.10-Sale Deeds will show that from the year 1936

there has been a joint family and it is a case of one side that partition has taken place in the year 1960 and it is the case of another, the partition has

taken place during the year 1940. It is also the contention of the Learned Counsel for the Respondents that though there is evidence in the case

about the income, yet, it must be established that the father possessed surplus income to purchase the property and in the instant case, father

surplus income has not been proved.

Countering the submissions of the Learned Counsel for the Respondents, the Learned Counsel for the Appellants submits that the alienees

have purchased the properties after suit notice and therefore, they have no locus standi to defeat the 1st Plaintiff''s father''s title.

At this stage, it is useful to refer to the passage from Mulla on Hindu Law 20th Edition Volume I at page 393 wherein it is mentioned as

follows:

(1) Presumption that a joint family continues joint Generally speaking, ''the normal state of every Hindu family is joint. Presumably every such family

is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption''. Neelkisto Deb v. Beerchunder (1869) 12

MIA 523, p 540; Naragunty v. Vengama (1861) 9 MIA 66, p 92; Rewaun Persad v. Radha Beeby (1846) 4 MIA 137, p 168; Cheetha (Mst) v.

Miheen Lall (1867) 11 MIA 369; AIR 1925 132 (Privy Council); Jugal Kishore Singh and Others Vs. Gobind Singh and Others . However,

Shankarrao Dejisaheb Shinde (Since Deceased) by Heirs Vs. Vithalrao Ganpatrao Shinde and Others, (presumption as to jointness, held, stood

rebutted on the facts of the case). Also see Munesh Kumar Agnihotri and Others Vs. Lalli Prasad Gupta since deceased by LRs. and Others,

(plea as to business started with joint family funds refuted). In other words, ''given a joint Hindu family, the presumption is, until the contrary is

proved, the family continues joint''. Nageshar Baksh Singh v. Ganesha (1920) 47 IA 57 : 56 IC 306 : AIR 1920 PC 46; Raghubardayal v.

Ramdulare (1928) 6 Rang 367 : 111 IC 839 : AIR 1928 Rang 206; Pandit Mohan Lal v. Pandit Ram Dayal (1941) 16 Luck 708 : 194 IC 661,

AIR 1941 Ori 331; Chito Mahto and Others Vs. Lila Mahto and Others, (in absence of a document or any other settlement, presumption that

properties are ancestral arises). The presumption of union is the greatest in the case of father and sons. Malak Chand v. Hira Lal (1936) 11 Luck

449 : 157 IC 945 : AIR 1935 Ori 510; Indranarayan Vs. Roop Narayan and Another, ; Mathuri Bewa and Others Vs. Smt. Prafulla Routray and

Others, . When coparceners have separated, there can be no presumption as to jointness. This is more particularly so when separate enterprise

has been set up and there is lack of evidence of source of funds for such venture. Purshottam and Others Vs. Bhagwat Sharan and Others, .

The presumption is stronger in the case of brothers than in the case of cousins, and the further one goes from the founder of the family, the

presumption becomes weaker and weaker. Yellappa v. Tippanna (1929) 56 IA 13 : 1953 Bom 213 : 114 IC 13: AIR 1929 PC 8. The reason is

that brothers are for the most part undivided; second cousin are generally separated; Moro Vishvanath v. Ganesh (1873) 10 Bom HC 444, p 468

and third cousins are for the most part separated. Yellappa v. Tippanna AIR 1929 PC 8.

The Appellants 1 and 2 (deceased Plaintiffs) in para 4 of the Plaint have, among other things, observed that ''the father of the 1st Plaintiff has

purchased the properties by self-acquisition ever since 1936 onwards and the properties so acquired have been in the continuous physical and

legal possession of the said Venkata Reddy and his sons till the death of the said Venkata Reddy and thereafter in the possession and enjoyment of

the Plaintiffs and the 6th Defendant etc. Also, in para 5 of the Plaint, it is averred as follows:

The defendant-1 above named is an inimical terms with the plaintiffs since about 2 to 3 years on account of domestic matters and money and as

the plaintiff did not give money to the first defendant he is aggrieved. There were also criminal cases and quarrels between them and to wreck

vengence the first defendant without any manner or gift, title and interest in the property has covered the property purchased by the father of the

plaintiff in the year 1936 and 1950 only to create litigation. Inspite of these two documents created by the first defendant in favour of defendants 2

to 5 the physical and legal possession of the properties has not been effected and the plaintiff continues to be in possession of the same. The

defendants 2 to 5 are persons in whom the first defendant is interested personally because of special circumstances and neither the first defendant

can part with any valid title nor can the defendants 2 to 5 are stated as sale deeds they are only documents nominally created for litigation and as

the plaintiffs alone have title along with defendant-6 they ignore the documents.

The Defendants, in the written statement in para 7, has stated as follows:

The defendants submit that the plaintiff 1''s father and Ist defendant divided themselves about 20 years back and the division is only oral one.

Before the division 1st Plaintiff''s father was a family manager and was also worldly wise person. He has been looking after the properties and out

of the family income, he had purchased lands in his name. The lands which the Ist Plaintiff''s father had purchased are all joint family properties and

in the division that took place about 20 years back, the lands purchased by Ist plaintiff''s father and also ancestral lands were divided. Since that

date, the brothers were and are enjoying the lands separately since then.

Moreover, in para 8 of the written statement, it is stated hereunder:

The defendants submit that in the family partition, S. No. 650/2 and in S. No. 652/2 the entire extent, have fallen to the share of the plaintiff''s

father. In S. No. 903/1 and S. No. 903/2, the Ist defendant has got 0-67 cents bounded by East Muniswami Reddy, poramboke; West: M.

Venkata Reddy, North: M. Nanja Reddy and Ors.; South V. Nanja Reddy, plaintiff. The Ist plaintiff''s father got 0-67 cents out of 2-20. The Ist

plaintiff''s father already lost 0-86 cents in S. No. 903/1 and 903/2 even before partition. Hence the entire family of Ist defendant and plaintiff had

only 1-34 in both the survey numbers. The Ist defendant has sold 0-67 cents to defendants 2 to 5. In S. No. 906/2, out of 1-43 the family owned

0-71 cents. In this, the Ist defendant got to his share 0-36 cents bounded by East: Panchayat road; North: Appanna reddy; West-Gopala reddy

land; South: Plaintiff''s land. In S. No. 845, the plaintiff got the entire extent in that number i.e., 1-78. In S. No. 578; 579; 580 in all these survey

numbers, the family owned 1-63. In this the Ist defendant got 0-81 cents to his share bounded by: East: Obala Reddy son; North: plaintiff''s land;

West: Yella Reddy and challen; South:

Continuing further, the Defendants, in the written statement, have mentioned the following:

The Ist defendant in addition to the lands got under partition above, he got other properties to his share in his ancestral properties for having

allotted to the entire extents in S. No. 650/2; 652/2 and 845. Now, the plaintiffs are also giving trouble to the Ist defendant in his enjoyment of

lands allotted to his share. The Ist plaintiff''s father did not get equal extent in ancestral lands. The Ist defendant submits, the plaintiffs now cannot

trespass upon the lands which were allotted to his share. Since Ist defendant is an innocent and less intelligent person, having little support in the

village, the plaintiffs taking advantage of the Ist defendants weakness has filed the suit to grab more lands.

In the instant case on hand, the Sale Deeds are in the name of the 1st Appellant/1st Plaintiff''s father and admittedly, he is the elder member of

the family. Furthermore, in the absence of any proof that the two brothers, after the partition between them, have purchased the properties, then,

one can safely conclude that the properties have been construed or presumed to be the properties of the joint family. Though, on the side of the

Plaintiffs, it is stated that the father of the 1st Plaintiff and the 1st Defendant got themselves divided about 40 years ago and it is averred, on the

side of the Defendants, that the 1st Plaintiff''s father and 1st Defendant divided themselves about 20 years back and that the division is only an oral

one, the Plaintiffs have not established the date and the year of partition that has taken place etc.

A perusal of the plaint indicates that it contains particulars of more properties, sold out properties and the properties which are not in dispute.

That apart, the evidence of witnesses examined on the side of Plaintiffs are in favour of the Defendants 1 to 5. In the Report-Ex.C.1 filed by the

Advocate Commissioner before the trial Court, it is mentioned as follows:

item No. I Dry S. No. 845 Extent 1-78 cents this piece of land is lying fallow, with pull of standing grass useful to the cattle. On enquiry it is learnt

that the entire field is kept uncultivated for the last 2 to 3 years. This land is bounded by the following fields:

East: Eri poromboke and Nanja Reddy (Plaintiff) and there are 3 trees one on the East-South corner one ''Chigara'' aged about 20 years tree and

on East-North corner: 2 puvarisa trees 20 and 15 years respectively

West: patta land of Gopala Reddy

North: patta land of Appanna Reddy

South: patta land of Krishna Reddy

In this land there is slight elevated mud line running from east to west in the middle of the field and it is not bifurcated the fields as such.

The rough plan is appended, which forms part of the report.

item No. 2 Dry Survey Nos. 903/1 and 903/2 and 906/2 extent 2.20 cents.

This entire field is with full of standing gross, useful for cattle. On enquiry it is learnt, that this land is lying fallow uncultivated for a period of 2 to 3

years.

The land is bounded by

East: Poramboke land, Muniswamy Reddy and Chikkamma lands

West: Patta lands of M.P. Venkata Reddy

North: Patta lands of M. Nanja Reddy

South: Patta land of Malakka

This land is bounded by certain trees and, kalli fences which are shown in the rough plan appended to this report for the purpose of understanding

the clear picture of they physical features which may be treated as part of the report. There appears a slight elevated mud-line running from east to

west upto a middle of the field which is shown in the plan.

Item No. 3 Wet survey Nos. 578, 579 and 580 Extent 1-63 cents situated nearby Vanamangalam village;

This wet land is bounded by:

East: Patta lands of Obala Reddy and T. Muniswamy Reddy

West: by Raja Kaluva Channel

North: patta lands of Yella Reddy

South: by water channel and patta lands of Gulla Reddy and Chikkamma.

This wet land is also lying fallow uncultivated for a period of last two to 3 years. There are twenty pieces of fields with varying dimensions with

different heights between each field as shown in the rough plan which may be read as part of the report.

There is slight elevated mud line running from east to west in the middle of the field is shown in the plan.

There are four survey stones existing on the northern side of the field- shown in the plan.

There are three ""punga"" trees on the western side of the field shown in the plan.

The warrant of Commission; 3 rough plans and notice copy are appended to the report.

It is not out of place for this Court to point out that the Appellants 1 and 2/deceased Plaintiffs, in their Plaint in para 6, have averred that ''The

defendants created trouble at the time of the Ragi harvest and still there is Avarai, Thovarai, Cholam and caster on the land and the defendants 1 to

6 are creating trouble and are inviting plaintiffs for trouble so that they might cause danger to limbs and property. They are also having the support

of other like minded-supporters. Without an order of injunction from Court it is difficult to protect and preserve the legal physical possession of the

property. There is imminent danger and circumstances leading to breach of peace. When questioned the defendants have also raised a cloud of

doubt in regard to the title to the property of the plaintiffs willfully and with mala fide intentions the plaintiffs have come forward with this suit for a

declaration of title to the suit properties and for a permanent injunction and claiming by or under them from trespassing and interfering with the

peaceful possession and enjoyment over the properties. As there is imminent danger the plaintiffs have also filed an interlocutory application for the

grant of a temporary injunction pending trial and disposal of the suit etc.''

But the Ex.C.1-Commissioner''s Report goes to point out that the dry and wet lands have been uncultivated for a period of 2 to 3 years.

Interestingly, the Advocate Commissioner''s Report-Ex.C.1 has stated that ''there appears a slight elevated mud-line running from east to west

upto a middle of the field which is mentioned in the plan.'' If there is no partition of properties between the Plaintiffs and the Defendants, then, there

is no need for elevated mud-line running from east to west upto a middle of the field, as shown in the plan. Therefore, it is quite clear that the

Plaintiffs have not established that they have been in possession of the suit properties separately or independently. In short, the averment made by

the Plaintiffs in the Plaint that the Defendants created trouble at the time of Ragi harvest and still Avarai, Thovarai, cholam and caster on the land

and the Defendants 1 to 6 are creating trouble etc., false to the ground in view of Ex.C.1-Commissioner''s Report that the suit properties have

been lying fallow and uncultivated for a period of 2 to 3 years. When the Defendants 1 to 5 claim that in the family partition, they have got the

properties as mentioned in the written statement and when there is a slight elevated mud-line linked from east to west upto a middle of the field

mentioned in Ex.C.2-Commissioner''s Plan, then, the partition pleaded by the Defendants cannot be considered as a false one and consequently,

the deceased 1st Defendant has every right to effect a sale in respect of other Defendants which cannot be prevented by the Appellants 1 and

2/deceased Plaintiffs.

Besides the above, when the evidence of P.W.2 is to the effect that Venkata Reddy and Kuruvi Reddy [the father of the 1st Plaintiff and the

1st Defendant] possessed ancestral property of 8 = acres which is also corroborated by the evidence of P.W.3 to the effect that the family of

Venkata Reddy and Kuruvi Reddy possessed 7, 8 acres of ancestral property and when the evidence of P.W.4 is to the effect that the 1st

Plaintiff''s father and the 1st Defendant have partitioned the properties orally before 20 years, it is quite clear that both Venkata Reddy and Kuruvi

Reddy got 4 acres of land each in partition, then, on the side of the Appellants/Plaintiffs, it is not proved before this Court that the Venkata Reddy

has been in possession of separate income or has been receiving independent income.

The suit has been filed by the Plaintiffs for 2 acres and 20 cents. But as per Ex.A.16-Sale Deed dated 20.12.1952 the 1st Plaintiff''s father has

sold 13 cents to Munusamy Reddy in Survey No. 903/1. Also, as per Ex.A.14-Sale Deed dated 30.07.1943 in Survey No. 903/1, 4 cents and in

Survey No. 903/2, 9 cents have been sold. Therefore, it is crystal clear that 26 cents have been sold. However, the suit has been filed by the

Plaintiffs for 2 acres and 20 cents which go to show the conduct of the Plaintiffs that they have not come to Court with clean hands in projecting

the case, as opined by this Court.

It is to be noted that initial burden of separation is on the person who sets up partition as per decision Chandershwar v. Ramchandra AIR

1973 Pat 213.

It is to be borne in mind that a person setting out is to establish that a particular property is a joint family property ought to discharge in the first

stage the burden of establishing that fact. However, it is proved that if there is a joint family, which possessed a nucleus of joint family, then

property acquired by a member of that family is presumed to be joint family property.

The nucleus of joint family property necessary to give rise to presumption should be family property from which the purchase money for the

property in suit might have been derived wholly, or, at any rate, in substantial part and if it is proved/established that only the joint family property

available at the date of acquisition of property in suit has been of such a character that it could not possibly have been the means of acquiring the

property in suit, then the presumption as a logical corollary is that the property in suit is joint family property does of arise.

It will be a rare case where a joint family possess no property. Atleast a joint family will have household utensils and articles which its members

use in common. In the decision Shankarrao Dejisaheb Shinde (Since Deceased) by Heirs Vs. Vithalrao Ganpatrao Shinde and Others, it is held as

follows:

There is a presumption of jointness in a family governed by Hindu Mitakshara law, and the initial burden lies on the party claiming disruption in the

joint status.

Where a suit for partition of joint Hindu family property was filed and in an earlier suit the plaintiff (the defendant in that suit) had asserted in his

written statement that there was an earlier partition of joint family property, it was held that the presumption as to jointness stood rebutted. It was

more so when the other evidence in the case also showed that there was disruption in the joint status of the family, Consequently, the relief of

partition could not be granted to the plaintiff.

In the present case, the properties have been purchased in the name of eldest member of the family viz., the Plaintiff''s father and since it is seen

from the evidence of P.W.2 and P.W.3 that the family of Venkata Reddy and Kuruvi Reddy possessed 7, 8/8 = acres of ancestral property, there

has been a nucleus of joint family property which necessarily give rise to presumption that the said properties have been purchased from the

money/income derived therefrom.

Also, at the time of acquisition of the properties in the suit, the joint family properties have been available. Therefore, one can safely presume

that the properties standing in the name of the eldest member of the joint family is a property of the joint family.

Suffice it for this Court to point out that the Appellants 1 and 2/Plaintiffs have not proved the fact that the partition has taken place before 40

years in view of the boundaries mentioned in para 8 of the written statement filed by the Defendants, and further, the Defendants plea about the

partition is a true one and hence, the Appellants 1 and 2/Plaintiffs (since deceased) and their legal heirs cannot prevent the 1st Defendant (later

deceased) to sell the properties in favour of Defendants 2 to 5 and consequently, the Appellants are not entitled to get the relief of permanent

injunction as prayed for in the Plaint.

Furthermore, on a careful perusal of the Judgment of the First Appellate Court in Appeal coupled with the appreciation of oral and

documentary evidence available on record, this Court is of the considered view that though the First Appellate Court has not spelt out the concept

of Nucleus expressly, yet, it cannot be said that the Lower Appellate Court has not considered the principle that in order to constitute a joint

family, they ought to have been acquired from a nucleus which is sufficient and adequate to have the later acquisitions, in additions to joint family

properties already in existence and on the first stage, the burden of establishing that a particular properties are joint family properties is on the

person who asserts it and also the initial burden of separation is on the person who sets the partition and it is held that the said burden is not a static

one and it shifts as soon as if it is proved by a party that there is a joint family which possessed a nucleus of joint family property and in this regard,

the shifting of burden by the Learned First Appellate Judge cannot be found fault with and viewed in that perspective, the substantial questions of

law 1 and 2 are answered accordingly and resultantly, the Second Appeal fails.

In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree passed by

the First Appellate Court viz., Sub Court, Hosur in A.S. No. 75 of 1996 dated 27.09.1996 are affirmed by this Court for the reasons assigned in

this Second Appeal. Consequently, connected miscellaneous petition is closed.