N.S. Rathnam vs S. Thangasami Pillai and Others

Ramamurti, J.—These three appeals arise out of three suits, which were disposed of by the learned Subordinate Judge of Pudukottai by a

common judgment. The substantial question involved in all the three suits is the same and as the three suits were inter-connected they were tried

together by consent of parties.

It is first necessasry to set out the following genealogical tree to show the relationship between the parties:

The first suit Original Suit No. 6 of 1958 has been filed by the Plaintiff therein (the Appellant in these appeals), one Rathinam Pillai, for partition

and separate possession of half share in the properties set out in the B schedule appended to the plaint after taking into consideration, the

properties mentioned in the C schedule which have been given to him. In this suit Chinniah Pillai''s son (Swamikannu''s brother) Rathinam Pillai is

the Plaintiff Swamikannu''s two sons and daughter are respectively Defendants 1, 2 and 4, while Swamikannu''s wife is the third Defendant. The

case is that his father Chinniah Pillai was a native Christian, and that even though the father and the sons are all Christians, they followed the

customary Hindu Law of succession and inheritance, with the incidents of the law of joint family and co-parcenary property. The Plaintiff''s case is

that his father, Chinniah Pillai, was carrying on a grocery shop and a money-lender business on a large scale at Ceylon for nearly 35 years before

his death in 1929, that sometime prior to his death, Chinniah Pillai came to Tirumayam his native place, and at that time, Swamikannu was in

Colombo looking after the business, that after the death of Chinniah Pillai, the money-lending business and the grocery shop at Ceylon were

managed by Swamikannu, the eldest member of the family, that with the aid of the business assets and the assets of the money-lending business,

Swamikannu acquired several items of properties, that his two brothers, Singarayar and Nalliah were married out of the common funds of the

family, that in 1907, Swamikannu obtained a release-deed from the two brothers, Singarayar and Nalliah, that in 1942, Swamikannu obtained

another release deed from the other brother, Doraisami, that thereafter, the Plaintiff and Swamikannu alone continued to live together in the family

house as members of a joint family, that Swamikannu was throughout very much attached and affectionate towards the Plaintiff till Swamikannu

died suddenly on 18th November 1956 at Madras, and that all the properties, whether immovable, movable, cash and outstanding and shares in

companies, whether in the name of the Plaintiff or in the name of Swamikannu, are all joint family properties in which the Plaintiff would be entitled

to a half share.

The Plaintiff''s further case is that he was studying in the college till 1943 (the expenses of education being met by Swamikannu), that in 1943 a

wholesale paddy and rice and grocery business and business in other items was started in the name and style of Swami Stores, with the aid of

ancestral assets brought from Ceylon, that the business was carried on with the aid of ancestral nucleus and by the joint exertions of labour and

skill of the Plaintiff and Swamikannu, that in 1953 a money-lending business was started in Madras in the name of Swami Stores with the assets

taken over from Swami Stores Tirumayam, that in 1953 another business in cement tubes was started at Thambu Chetty Street, Madras and that

the Plaintiff is entitled to a half share in all the business assets, as the investments therein and the money-lending business at Madras were all taken

from the assets of Swami Stores, Tirumayam.

The Plaintiff''s further case is that in June 1954, Swamikannu with the consent of the Plaintiff gave the grocery business at Tirumayam to the

Plaintiff on a valuation of Rs. 10,000, that the sum of Rs. 10,000 was debited against the Plaintiff in the accounts, that the money-lending business

at Tirumayam and in Madras were kept common. The Plaintiff also alleged that shortly thereafter Swamikannu arranged to make separate

allotment of properties in the name of the Plaintiff and in the names of the members of Swamikannu''s family, Defendants 1 to 4, that by such

piecemeal allotments, C schedule properties were allotted to the Plaintiff, D schedules to the first Defendant, E schedule to the second Defendant,

F schedule to the third Defendant, G schedule to the fourth Defendant, and that such piece-meal allotment were made with the idea that they would

be finally taken into account when a division by metes and bounds is effected between the Plaintiff and Swamikannu and that at that final partition,

the Plaintiff would be allotted his legitimate half share in all the properties.

The Plaintiff''s further complaint is that when Swamikannu died all on a sudden on account of heart attack on 18th November 1956, the

relationship between the Plaintiff on the one side, and Defendants 1 to 4 was cordial for sometime, but that later on it became strained and serious

misunderstandings arose between the parties. The Plaintiff further stated that as in certain proceedings in High Court in Original Petition No. 218 of

1957 and with regard to certain deposits in the banks Defendants 1 to 4 asserted rights on the footing that all those properties were the self-

acquisitions of Swamikannu, and that the Plaintiff was not entitled to any right or share therein the Plaintiff was obliged to file the present suit to

establish his rights to a half share.

Original Suit No. 20 of 1958, the second suit, has been filed by Rathinam Pillai claiming a half share on the amounts due under two promissory

notes executed by Defendants 1 to 3 in the said suit in favour of late Swamikannu, on the ground that the monies advanced to Defendants 1 to 3

represented monies of the joint family. Defendants 4 to 7 in the said suit are Swamikannu''s two sons, widow and daughter respectively. The third

suit, Original Suit No. 34 of 1958, was filed by the two sons and the widow of Swamikannu. The first Defendant therein is Rathinam Pillai; the

second Defendant is one Annamalai Chettiar, a debtor and the third Defendant is the daughter of Swamikannu. Rathinam Pillai has obtained a

decree against this Annamalai Chettiar in Original Suit No. 36 of 1955, on the basis of a promissory note which was executed in favour of

Swamikkannu, but subsequently assigned in favour of Rathinam Pillai. The case of the Plaintiff in Original Suit No. 34 of 1958, is that Swamikannu

assigned the promissory note in question to Rathinam Pillai merely for purposes of collection as an agent, and that Rathinam Pillai should be

directed to pay over the collections made by him, and also be restrained by an injunction from making further collections. Rathinam Pillai''s defence

to this suit is that his brother, Swamikannu, gave away this item of asset by assigning the promissory note in his favour as a piece-meal allotment,

and that he is entitled to the benefit of the decree in Original Suit No. 36 of 1955.

The defence of the Defendants in the two suits, Original Suits Nos. 6 and 20 of 1958 (the members of the family of Swamikannu) is to the effect

that the parties are governed only by the Christian Law of Succession, that there was no relationship of members of a joint family as between them

as understood under Hindu Law, and that after the introduction of the Pudukottai Christian Inter-state Sucession Regulation of 1938, there was no

question of any election or choice, that the parties are governed only by the Christian Law of Succession, and that on Swamikannu''s death, they

alone became entitled to all his properties, and that the Plaintiff, Rathinam Pillai, was not entitled to any right or share therein. The Defendants also

alternatively contended that the properties left behind by Swamikannu on his death are all his own separate self-acquisitions, that Chinniah Pillai did

not leave any assets worth mentioning at the time of his death in 1929, that Swamikannu by his own efforts unaided by any ancestral nucleus

acquired all the properties from time to time, and that as a matter of fact when Chinniah Pillai died, the debts far exceeded the assets left behind

him, and that there was no question of Swamikannu taking over the business of his father, and acquiring properties with the aid of the business

assets. The Defendants stated that Swamikannu out of purely brotherly love and affection, and out of generosity educated his younger brothers,

gave them moneys for their expenses, that he had obtained release deeds from the three brothers in all of which they have clearly admitted that the

properties acquired by Swamikannu were all his own separate self-acquired properties. The Defendants further pleaded that Swamikannu was

particularly attached and affectionate towards his youngest brother, Rathinam Pillai, that he educated him and gave him some training in the several

businesses that, later on, he gave the Tirumayam Stores to the Plaintiff at a valuation of Rs. 10,000, that out of generosity, the Plaintiff was given

some shares in Gitanjali Press, that purely out of love and affection and as a gift, he gave some properties mentioned in the C schedule to Rathinam

Pillai, and that whatever was given either by Swamikannu or by members of his family were purely as gift and nothing more and was not given in

recognition of any right of Rathinam Pillai.

As regards Original Suit No. 20 of 1958, they contended that Rathinam Pillai had no right to sue the debtors as moneys belonging to

Swamikannu were advanced as loans and that the debtors have settled the matter with the Defendants.

Rathinam Pillai''s claim was negatived in all the three suits. The suit for partition, Original Suit No. 6 of 1958, was dismissed on the ground that

the properties in which Rathinam Pillai claimed a share were not joint family properties, but the separate self-acquired properties of Swamikannu.

The learned Subordinate Judge also held that after the Pudukottah Christian Inter-state Succession Regulation of 1938 came into force the heirs of

Swamikannu, i.e., his widow and children alone, would be entitled to Swamikannu''s properties, and that Rathinam Pillai was not entitled to make

any claim on the basis of either a joint family or a co-parcenary.

In Original Suit No. 20 of 1958, the learned Judge held that the amounts which were sought to be recovered from the debtors formed part of

the estate of Swamikannu, that the Plaintiff was not entitled to file a suit in respect of the same, and that the settlement which was entered into

between the debtors and Swamikannu''s widow and children operated as a discharge of the amounts claimed. In this view that suit was. dismissed.

Original Suit No. 34 of 1958, the suit filed by the widow and sons of Swamikannu, was decreed on the finding that the promissory note which

formed the subjectmatter of the suit, Original Suit No. 36 of 1955, was assigned to Rathinam Pillai merely as an agent for collection, and that the

decree obtained in Original Suit No. 36 of 1955 must ensure only for the benefit of Swamikannu''s widow and sons.

Rathinam Pillai has preferred appeal, Appeal No. 55 of 1960, from the judgment and decree in Original Suit No. 6 of 1958. He has also

preferred the appeals, Appeal Nos. 353 and 354 of 1960, against the judgment and decree in Original Suit No. 20 of 1958 and 34 of 1958

respectively.

From the foregoing narration of facts, it will be clear that the main appeal is Appeal No. 55 of 1960, arising out of the suit for partition filed by

Rathinam Pillai, Original Suit No. 6 of 1958. In fact Counsel on both sides agreed that the decision in this appeal will practically govern and

conclude the decision in the other two appeals.

On a careful consideration of the entire oral and documentary evidence, in the light of the elaborate and detailed arguments advanced before us

by Counsel on both sides, we have no hesitation in coming to the conclusion that the view taken by the trial Judge is perfectly correct and sound,

and is amply supported by the evidence on record. The documentary evidence in this case is over-whelmingly against the Plaintiff and in favour of

the Defendants. Further, the Plaintiff''s own conduct from the time he became a major till the death of Swamikannu in 1956, clearly tends to the

same conclusion.

Before we proceed further, we think that it is but fair that we must advert to one important aspect of the case. Swamikannu has throughout

acted In a very generous manner, and that even though both factually and legally all the properties constituted his own self-acquired separate

properties, Swamikannu had out of love and affection and purely out of generosity had given substantial properties to the Plaintiff. Learned

Counsel accepted the position that the properties which were given to Rathinam Pillai will be of the value of Rs. 40,000 in the year 1956. We are

clearly of the opinion that the present suit is a purely speculative and a frivolous one filed by the Plaintiff solely out of greed, and as a blackmail,

exploiting the helplessness of the widow and the sons of Swamikannu, of whom one is yet a minor. In filing this speculative suit, the Plaintiff has

taken advantage of the fact that he is in possession of the account books, records and correspondence of which he has produced a portion only,

and suppressed the rest, which, if produced, would expose the falsity of this claim.

In analysis of the evidence in this case, it will be convenient to divide it into two periods (a) the period up to the death of Chinniah Pillai and (b)

from the death of Chinniah Pillai in 1929 till the death of Swamikannu in 1956.

Learned Counsel for the Appellant conceded and accepted the position that under Hindu Law if a member of a joint family, be he, the father,

or the managing member of the family, carries on any business, the presumption is that it is his own separate business, and that when any members

claims the business as joint, family business, the burden is upon him to establish it, vide Chattanatha Karayalar v. Ramachandra Iyer and Anr.

(1956) 2 S.C.R. 477. Learned Counsel, while accepting this legal position, contended that the Plaintiff has rebutted the presumption and has

established that the business is the joint family business on the ground that the Plaintiff had proved that, Swamikannu, when he carried on the

business in question carried on the same with the assistance of ancestral nucleus, that is, the assets of the grocery business and the moneylending

business which Chinniah Pillai was carrying on in Ceylon. The question, therefore, naturally arises as to the character and the magnitude of the two

businesses and whether Swamikannu really got into possession of any assets which could be regarded as nucleus in the legal sense of the term,

with the aid of which, it could be claimed, that Swamikannu carried on the subsequent business and made acquisitions there from. It must be

mentioned at the outset that the evidence relating to the business activities of Chinniah Pillai up to the time he lived in Ceylon is very very meagre,

and practically worthless, and does not support the Plaintiff''s case. On the other hand, such available evidence as has been adduced by both sides

shows that the business which Chinniah Pillai carried on was a very small business, and that at the time of his death the liabilities far exceeded the

assets, and that whatever Swamikannu did at that time in relation thereto was merely a process of of winding up and that there was no question of

Swamikannu utilising any of the assets in the business which he carried on. In fact there is absolutely no evidence connecting the assets of the

business left behind by Chinniah Pillai with the businesses which Swamikannu carried on after Chinniah Pillai''s death.

Learned Counsel for the Appellant relied upon the following features in, support of his ease: (i) When Chinniah Pillai died Swamikannu

remained in Colombo and carried on business form 1929 to 1945; (ii) Accounts of Swamikannu have not been produced, the same having been

suppressed by |the widow; (iii) The release deeds taken by Swamikannu from the brothers offered intrinsic evidence that the father Chinniah Pillai

had left business assets which had come into the hands of Swamikannu and that the burden is upon the widow to prove the extent of the assets;

(iv) The oral evidence of the two brothers, P.Ws. 2 and 3, Singarayar and Doraisami, should be accepted as these are the only two people who

can give evidence regarding the extent of the businesses of their father, Chinniah Pillai: (v), (a) Exhibits B-29 and B-30, the proceedings in the

Colombo Court showing that Chinniah Pillai and Swamikannu were carrying on business at Colombo; (6) conduct of Swamikannu purchasing

properties in the name of the Plaintiff and endorsing the promissory note in his favour; (c) several letters which passed between Swamikannu and

the Plaintiff tending to show that Swamikannu regarded the Plaintiff as a member of a joint family having a share-in the properties.

We have carefully examined the arguments of learned Counsel in respect of the abovesaid features on which he placed reliance but we are

unable to accept, his contentions.

After discussing the evidence His Lordship proceeded as follows:

We accept the reasoning of the learned Subordinate Judge in paragraph 82 of the judgment and hold that Swamikannu having earned large

fortunes by his individual efforts and business enterprise made some provision for the Plaintiff out of attachment and affection and for no other

reason.

In the estate duty proceedings as observed earlier, the Plaintiff himself assisted the first Defendant while preparing a return and stated that all

the properties were the separate properties of Swamikannu. We concur with the criticism of the learned Subordinate Judge that it was only in the

later stages that the Plaintiff conceived the fraudulent idea of making this claim and that with that end in view manoeuvred to have the secret recital

in exhibit A-94 that the Plaintiff was claiming a share in the estate. Plaintiff is guilty of fraudulent conduct in this matter is clear from the fact that he

never agitated this claim before the estate duty authorities or before any tax authorities. It is unnecessary to make any further reference to the other

oral or documentary evidence in this case.

As regards the two other appeals, learned Counsel did not contest the findings of the learned Subordinate Judge. The discussion of the

evidence with regard to the other two cases are contained mainly in paragraphs 29, 30 and 44 of the judgment of the trial Court and we are

satisfied that the findings are correct, and no exception can be taken against the same. In fact as observed earlier learned Counsel for the Appellant

did not canvass the correctness of these findings and he focussed his attention only upon the main appeal, Appeal Suit No. 55 of 1960.

Before we sum up we would like to make a reference to the leading decisions touching the perspective of approach, the burden of proof and

the quantum of evidence to be adduced whenever any claim is made that any item of property is joint family property. The Hindu Law upon this

aspect of the case is now well settled and does not admit of any controversy or doubt. Mere proof of the existence of joint family or the joint

family owning some joint family property does not give rise to any presumption. It must be established that the family possessed some joint

property which from its nature and relative value may have formed the nucleus from which the disbursements towards discharge of debts, etc.,

should be taken into account and a comprehensive view should be taken as to whether in the particular set up of the family, the joint family,

property could be regarded as a nucleus sufficient and adequate in character so as to impress the acquisitions with the character of the joint family

property. Mere existence of a nucleus however email or insignificant is not enough Vide : Vythianatha v. Varadaraja ILR (1938) Mad. 696.

Venkataramayya v. Seshamma ILR (1937) Mad. 1012, Appalaswami v. Suryanarayanamurti AIR 1947 P.C. 189 : ILR (1948) Mad. 440 (P.C.)

and V. Venkataswamy and Others Vs. V. Radhakrishna Reddi and Others, Where the income from the ancestral property was not sufficient even

for the maintenance of the members of the family, or where the out-goings and disbursements exceeded the value of the nucleus, the Plaintiff cannot

be said to have discharged the initial burden which lay on him. In such cases it ought not to be presumed that the separate earnings of the member

were spent on maintenance and other purposes binding upon the family for it is quite natural for a member of the joint family to keep his self-

acquired property separate from the joint family property, at the same time utilising the joint family property and its income for purposes binding

upon the family such as maintenance of the members of the family and discharging of debts. Further when the facts and the circumstances in which

the properties were acquired are known, no-question of applying any presumption would arise. The law relating to the second phase of the burden

of proof is stated thus in Ramakrishna Mardi and Others Vs. Vishnumoorthi Mardi and Others, :

The learned Subordinate Judge was of the view that when once the ancestral nucleus is admitted the onus lies on the manager of the joint Hindu

family to prove that the properties acquired were his self-acquisitions. This is stating the proposition of law in very wide terms. The existence of a

nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What has to be shown is that the family had as a result

of the nucleus sufficient surplus income from which the subsequent acquisitions could be made. This is the second phase in the onus of proof which

lies on the person who sets up the family character of the properties. In these circumstances after perusing the evidence of P.W. 1 and D.Ws. 1

and 2 we do not think that 100 mudis of rice would leave an appreciable surplus so as to form a basis for the acquisition of properties.

We are also of the opinion that the Plaintiff cannot build any argument in his favour relying upon the acts of bounty of Swamikannu:

It would not be reasonable or conducive to the peace and welfare of families to construe acts done out of kindness and affection to the

disadvantage of the doer of them.

Vide: Lola Moddun Goyal Lal v. Khikhinda Koer ILR (1890) cal. 341, 348 (P.C.). It is sufficient to extract the last head-note in Appalaswami v.

Suryanarayanamurti AIR 1947 P.C. 189 : ILR (1948) Mad. 440 (P.C.):

It is dangerous to construe act of generosity or kindness as admissions of legal obligation. Hence the fact that at the instance of mediators assisting

in the partition one of the members of the joint family agreed to apply some of his self-acquired property for the benefit of the members of the

family cannot be taken as establishing that the member intended to bring into partition his entire self-acquired interest.

To sum up, therefore, the position is as follows : There is absolutely no evidence regarding the character and the extent of the businesses

carried on by Chinniah Pillai in Colombo. There is equally no evidence that Swamikannu got into possession of any productive ancestral nucleus of

the father] with the aid of which it could be said that Swamikannu made the acquisitions. Such evidence as there is shows that the debt and

liabilities left behind by the father far exceeded the assets. The Plaintiff has not adduced any evidence to rebut the presumption under Hindu Law

that the businesses carried on by Swamikannu were his own separate businesses. The only evidence adduced by the Plaintiff is that of his two

brothers, P.Ws. 2 and 3, whose testimony is obviously interested being employees under the Plaintiff. Further the recitals in the release deeds

executed by them in favour of Swamikannu show that these two witnesses are thoroughly unreliable witnesses and have no scruples for giving

perjured evidence of the worst character. The recitals further prove the most important fact that the brothers were having and carrying on separate

businesses of their own. The Plaintiff''s own conduct, right from the time he left the college, furnishes very valuable evidence and it is wholly

inconsistent and destructive of the present claim made by him. He has not put forward this claim (based upon the Ceylon business as ancestral

nucleus) in his notice which preceded the suit. The two documents, exhibits B-3 and B-27 and the entries in the account books of Swamikannu

lead to the only inference that the Plaintiff''s case is wholly false and unfounded. The Swami Stores which is the sheet anchor of the Plaintiff''s claim

has been clearly proved to be the separate business of Swamikannu. A scrutiny of the Plaintiff''s evidence shows that he has no regard for truth and

there is no limit for his giving perjured evidence in Court. We have, therefore, no hesitation, in confirming the judgments and decrees of the Court

below in all the three cases. In the view we have taken, it is unnecessary to consider the effect and operation of the Pudukkottai Christians Inter-

state Succession Regulation.

It is unfortunate that the Plaintiff who could never have entertained any honest belief in the truth of case, and who must have fully realised that

his claim was baseless should have been ill-advised to plunge into the wasteful litigation. The admissions in his evidence show that he is a mere tool

in the hands of interested and mischievous parties, with the result that he has squandered away a substantial portion of Swamikannu''s bounties in

this frivolous litigation. The answers given by the Plaintiff at page 141 of the combined documents, in this cross-examination show that admittedly

the Plaintiff does not know the facts personally, and that he ha& been instigated and set up by his father-in-law and others who are Court-birds.

We do not see any reason whatsoever as to why the usual order of costs following the event should not be passed.

We, therefore, dismiss all the appeals with separate costs in all the three-appeals.