P. Arul and others vs P. Sekaran

T. Raja, J.—The present second appeal has been brought by the second defendant and his four sisters, aggrieved by the judgment and

decree passed by the learned first appellate Court in A.S. No. 40 of 2006, dated 26.10.2006, reversing the judgment and decree passed by the

learned trial Court in O.S. No. 423 of 2004, dated 30.06.2005. The facts leading to the filing of the second appeal is given as under:-

One M. Peethambaram had two sons and four daughters. The plaintiff is the elder son and the second defendant is the younger son. The said M.

Peethambaram was the son of Murugammal, who had three sons, namely, Peethambaram, Arumugam and Velu. It is an admitted case of both

sides that the suit property was originally allotted to the mother of the first defendant by the Government in the year 1953, admeasuring 30 x 90''

(2700 sqft). Since the first defendant''s mother, Late Murugammal, had three sons and one of her sons, Mr. Arumugam, being DIG of Police,

graciously relinquished his share. Therefore, the said Murugammal, had allotted half share (15 x 90'') to the first defendant and another half share

(15 x 90'') allotted to Velu, who is the third son of Murugammal. The first defendant, after retirement from Indian Army, came down to his native

and started constructing a house in the year 1974. After construction of the house in the year 1974, the property also stood in the name of the first

defendant, who is the father of the plaintiff and the defendants 2 to 6. The plaintiff has also got employment in Indian Army and after his retirement

in the year 1989, he has also come down and living in the suit property along with other defendants. It was also the case of the plaintiff that from

the income of the plaintiff and the first defendant, the suit property was built and after completion of the construction work in the year 1974, the

first defendant also treated the suit property as a joint family property. But, after some time, when the plaintiff and the defendants developed

distained relationship, the plaintiff also left the suit property and for that, the first defendant refused to divide the suit property and allot a share to

the plaintiff. Hence, the plaintiff filed a suit for partition and separate possession of his 1/3rd share in the suit property.

A written statement was filed by the first defendant, stating that the suit property was allotted by the Government in the year 1953, in the name

of his mother, Late Murugammal. After allotment of equal share -- half share to first defendant and another half share to one Velu, who is the

brother of the first defendant -- this property cannot be treated as joint family property, so as to make a claim by the plaintiff. During cross-

examination, the plaintiff produced various evidence to convince the trial Court that the suit property is a joint family property. According to the

plaintiff, when he was serving in the Indian Army, every month, though he was getting a monthly salary of Rs. 145/- to Rs. 173/- from the years

1970 to 1974, he used to send Rs. 60/- to his father by way of money order. By receiving all these money, the first defendant has constructed a

house on the suit property, therefore, having received the contribution from the plaintiff by the first defendant and when he has not received any

contribution from his second son or any other daughters, the question of quantum cannot be taken into account. Though the cost of the

construction of the house was Rs. 2 lakhs, but only the contribution alone should be taken into account for the purpose of considering the prayer

for partition of the suit property. One another document was also pressed into service before the trial Court-Ex. B31. As per the said document,

since the plaintiffs father, who is the first defendant herein, has on his own, treated the suit property as joint family property, the intention is very

clear that the suit property is joint family property. On that basis, a claim was made to decree the suit as prayed for. One another aspect needs

consideration is, during the pendency of the suit, as the plaintiffs father passed away, the plaintiff also by moving appropriate amendment

application, sought for grant of 1/3rd share and in addition to 1/3rd share, he has also pleaded for 7/18 share. The trial Court, considering the case

of both sides, finding the admission made by the plaintiff that the cost of the house was Rs. 2 lakhs and though the plaintiffs contribution was very

negligible, namely, a sum of Rs. 3600/-, dismissed the suit, applying the rule that a property owned by a family member in the family, cannot be

treated as ancestral property or joint family property. Aggrieved by the said judgment, when appeal was preferred, the learned first appellate

Court reversing the judgment and decree passed by the trial Court has given a finding that the suit property is a joint family property and therefore,

the plaintiff is entitled to have a share. Aggrieved by the same, the present second appeal has been filed by the defendants.

this Court, at the time of admission, framed the following substantial questions of law for consideration:-

i) Whether the lower appellate Court is right in allowing suit for partition for a separate property of the father?

ii) Whether the lower appellate Court is right in allowing 1/3rd share in the property while there are 7 shares assuming the property is a joint family

property?

iii) Whether the lower appellate Court is justified in relying upon Ex. B31 for allowing the claim of the plaintiff, while holding the same as sham and

nominal?

Mr. S.N. Ravichandran, Learned Counsel appearing for the appellant has submitted that, once it is an admitted fact that the suit property has

come from the mother of first defendant, it cannot be considered as a joint family property, for, it is separate property, since the first defendant,

father of plaintiff and other defendants, have received the suit property only from his mother. Therefore, it was submitted that, learned first

appellate Court has wrongly overlooked the settled legal position.

In support of his submission, he has also relied upon a judgment in the case of The Vijaya College Trust v. The Kumta Co-operative Arecanut

Sales Society Limited (AIR 1995 Kar 35), for a proposition that the ancestral property is the property inherited by a male Hindu from his father,

father''s father or father''s father, and the property inherited by a person from the other sources is his separate property. Whileso, the property

inherited from females cannot be an ancestral property. On that basis, it was heavily contended before this Court that the learned first appellate

Court disbelieving the important document-Ex. B31, through which he has laid a claim before the trial Court that the first defendant himself has

treated the suit property as joint family property, erroneously reversed the judgment and decree passed by the learned trial Court, holding that the

suit property is liable for partitions.

Adding further, Learned Counsel for the appellant further pleaded that even though the suit property originally belonged to the first defendant''s

mother Murugammal, during her life time, the suit property was divided and after the division, the same was also allotted in favour of the first

defendant and the adjacent site in favour of her another son Velu. Further, it is well settled legal position that though a release deed-Ex. B31 treats

this property as a joint family property, as per the ratio laid down by this Court in Ranganatha Naid v. Balarama Naidu and others (1981 (2) MLJ

295 = (1981) 94 L.W. 681), the son cannot claim any right over the property of the father inherited from the father''s mother, the plaintiff, being a

male member, cannot legally take any interest in it by birth, or on the ground that the suit property was treated as a joint family property in Ex.

B31. But, the intention of the parties/releasors are very clear that the releasors wanted to transfer their shares in favour of the second defendant in

order to avoid future problem between the daughters and the second son-second defendant and the plaintiff, who is a male member in the family,

cannot take advantage of release deed-Ex. B31, which is mentioned that the suit property, which has been released in favour of the second

defendant, is a joint family property.

Further, it was contended that the case of the plaintiff/respondent herein that he had sent Rs. 3,600/- for about 5 years at the rate of Rs. 60/-

per month during the period from 1970-1974 towards the costs of the construction and only from the joint income of the plaintiff and the first

defendant, the house was constructed and the same having been treated as joint family property, the plaintiff/respondent herein is entitled to have a

share in the suit property, do not support his case, for the reason that the house was constructed only after 1984 by using the retirement benefits of

the first defendant received from the Indian Army, along with the income received from TANSI, as he was employed in TANSI after his retirement

from Indian Army, therefore, the averment made in the plaint that the plaintiff has contributed for construction of his house at the rate of Rs. 60/-

per month from 1970 to 1974 is far from truth, inasmuch as the records show that he had sent money only to meet the daily needs of his family as

elder son in his family. Therefore, he pleaded, the question of his contribution for construction of the house does not arise at all.

Opposing the said argument, Mr. R. Margabandhu, Learned Counsel appearing for the respondent, though fairly conceded that, if the suit

property was allotted by Murugammal to his son, first defendant, the plaintiff would not have claimed any share over the property, as it is a

separate property of the first defendant, however, he pleaded that the suit property is a joint family property, because the same has been converted

by the first defendant as a joint family property, by executing Ex. B31, dated 04.11.1992, release deed. In the said release deed, he added, the

defendants have clearly mentioned that the suit property is a joint family property. That apart, after showing his intention that the suit property is a

joint family property, the first defendant, at the time of putting a construction in the suit property, has admittedly received the contribution from his

son-plaintiff/ respondent herein. Though the said contribution was not a huge one, the question to be borne in mind is whether the plaintiff has

contributed for construction of house in the suit property. Having received the contribution from the plaintiff, when the first defendant has raised the

construction, it goes without saying that he is not only treated the suit property as joint family property, but he has also blended the same by using

his money, along with suit property, that is open land, therefore, he contended that the plaintiff, being one of the sons of first defendant, like second

defendant and other daughters, he is also equally entitled to have a share on the suit property. Therefore, when he laid a claim asking for 1/3rd

share of the suit property, subsequently, after the death of the first defendant, he has also rightly moved an amendment application, asking for

7/18th share, on that basis, to support his argument, he has also relied upon a judgment in the case of Goli Eswariah Vs. Commissioner of Gift

Tax, Andhra Pradesh, for a proposition that the separate property of a Hindu coparcener ceases to be so and acquires the characteristic of a joint

family or ancestral property not by any physical mixing with his joint family or ancestral property but by his own volition and intention by his

waiving and surrendering his separate rights in it as separate property. Therefore, he pleaded that the suit property is liable for partition as held by

the first appellate Court, hence, no interference is called for from this Court. On this basis, he prayed for dismissal of the second appeal.

Heard the Learned Counsel appearing on either side and perused the materials available on record.

It is an admitted case of both sides before the Courts below that the suit property has not been inherited by the father of the plaintiff-first

defendant, as it was the property of grandmother of plaintiff, namely, the mother of first defendant, in whose favour the Government has allotted the

land in the year 1953. After the allotment by the Government, a piece of land admeasuring 30 x 90'', the said Murugammal had allotted equal share

dividing 15 x 90'' to two of her sons, namely, Peethambaram, who is the first defendant and another son Velu. In fact, the second son of

Murugammal having placed in a high position in the police department as DIG, on his relinquishment, as I said, the above said property was

divided into two half shares and one half share was given to the first defendant-Peethambaram and the remaining half was given to one Velu, who

is the third son of Murugammal. Therefore, whether the suit property can be allowed for partition as held by the learned first appellate Court, since

the trial Court has held that the suit property is not an ancestral property of the first defendant, but separate property of the first defendant.

Though the Learned Counsel for the respondent fairly submitted that the suit for partition could not have been laid by the respondent, since the

suit property remains as open house site, the intention of the first defendant is very clear through Ex. B31 -- original settlement release deed

executed by the first defendant and others in favour of the second defendant and in addition to the Ex. B31, the plaintiff has established his

contribution through proper evidence before the trial Court that he has contributed for construction of house from his salary, for which he has also

produced Exs. A1 to A7-accounts copy issued by the Army Office from the years 1970 to 1987 and further produced Exs. A8 to A16 with

regard to the House tax receipt as well as Water tax receipt paid by him. Secondly, whether the first defendant himself has treated this property as

a joint family property, by again blending the suit property viz., the land and the contribution of the plaintiffs salary to say that the plaintiff is entitled

to have his due share in the joint family property, as per the clear intention if at all anything made known in the release deed-Ex. B31, dated

04.11.1992 needs to be answered. Since the Learned Counsel for the respondent fairly submitted that the original allotment of 15 x 90'', at the

hands of first defendant, is not a joint family property, but it is a separate property, it is pertinent to note that the suit property is not a joint family

property and it is a separate property, since the first defendant has succeeded to the property on the maternal side, because any property derived

or inherited from the female line cannot be termed as the character of joint family. Therefore, the house site, on the date of inheritance by a father

from his mother, is not a joint family property. This has been accepted by the both sides. But the question is whether the suit property has been

treated as a joint family property by the first defendant under Ex. A17 and Ex. B31, in which the sisters of the plaintiff have released their rights in

the suit property in favour of the second defendant?.

It is also pertinent to note here that the doctrine of throwing into common stock inevitably postulates that the owner of separate property is a

coparcener who has an interest in the coparcenary property and a desire to blend his separate property with the coparcenary property. The

existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self acquired properties in order to

ensuire that a separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily

thrown by him into the common stock with the intention of abandoning his separate claim therein. Once the separate property of a member of a

joint Hindu family is treated as joint family property by putting into common stock, the separate property ceases to be a separate property and

acquires the characteristic of a joint family. But, in the present case, the father of the plaintiff, being coparcener, by creating a release deed, Ex.

B31, dated 04.11.1992, had released his share in the suit property in favour of the second defendant only to avoid any future problem between the

second defendant and his sisters, for the reason that the daughters of the first defendant should not claim any share on the assumption that the suit

property was derived by the first defendant from his mother. Therefore, for the limited purpose, the first defendant, father of the plaintiff, in an

effort to help the second defendant to enjoy the property without any future dispute, released his share in favour of the second defendant and from

this, it is clear that the intention of the parties is to convey all the rights in the property in favour of the releasee thereby effect a valid transfer

conferring all right of ownership and title in favour of the releasee. Therefore, as rightly held by the learned trial Court that just because the

daughters have been made parties to Ex. B31 -release deed, the suit property cannot be treated as a joint family property. Going back to the

doctrine of throwing into the common stock, it must be remembered that the owner of a separate property should have an interest in the

coparceneray property along with desires to blend his separate property with the coparcenary property. But, in the present case, as held above,

when the first defendant by throwing his self acquired property into the common stock, has completely given his exclusive right in that property and

in its place he was content to own that property jointly with the other members of his family, because he has completely released his share and his

daughters'' share in favour of the second defendant. Therefore, it cannot be treated as joint family property, so as to enable the plaintiff also to have

a share in that.

In this context, the judgment of the Apex Court in AIR 2003 3800 (SC) clearly enunciates the legal position against the plaintiff/respondent

herein that what is the principle of blending the self acquired property with joint family property. The law on the aspect of blending is well settled

that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is

voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such

abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to

use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder

was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness

will not ordinarily be regarded as an admission of a legal obligation. In the present case, the plaintiff/respondent herein has not let any evidence on

the aforesaid aspect, therefore, it cannot be held that the first defendant blended the suit property into the joint family account.

Further, the plaintiff has examined himself as PW1 and marked Exs. A1 to A7-accounts copy issued by the Army Office from the years 1970

to 1987 and further produced Exs. A8 to A16 with regard to the House tax receipt as well as Water tax receipt paid by him. At this juncture, if we

look at the date of construction and completion of superstructure, it is also an admitted fact that the superstructure was constructed in the year

1984. During this period, the plaintiffs salary was only Rs. 145/- to Rs. 173/-, and out of which, he has sent only Rs. 60/- to his father. Except,

Exs. A1 to A7, no other document was filed by the plaintiff to prove that he has contributed anything more for construction of the suit property.

The plaintiff also has clearly admitted before the trial Court that the cost of the construction of the house was about Rs. 2 lakhs. When the plaintiff

has admitted that his father-first defendant has constructed the house for about Rs. 2 lakhs, it is seen from the evidence that he has contributed only

Rs. 60/-per month for 5 years viz.; from 1970-1974. If we calculate the total contribution, as rightly arrived at by the trial Court, the entire salary

of the plaintiff for about 5 years comes to only Rs. 6,000/- at the rate of Rs. 100/- per month and there is no evidence to support the plaintiffs

contention that he contributed Rs. 1 lackh for the construction of the suit property. In fact, the defendant also admitted the fact that the plaintiff had

sent the above money to the first defendant, but the said money was used for his marriage expenses. That apart, the plaintiff, at the time of his

cross-examination, has also admitted that when his father retired from military service had received retirement benefits of one lump sum and after

his retirement in the year 1984, he employed in TANSI and earned his monthly income. These facts go to show that the first defendant, father of

the plaintiff, had sufficient money in his hand for constructing the suit property. This was also supported by the defendants 3 and 4, the sisters of the

plaintiff, who also deposed in favour of the second defendant that the suit property was constructed out of the earnings of the first defendant and

the plaintiff did not contribute anything. Therefore, the argument advanced by the Learned Counsel for the respondent that the plaintiff had been,

sending his salary to the first defendant, who constructed his house from the plaintiff''s salary, has no substance to support his case for partition of

suit property, since his contribution at the rate of Rs. 60/- for about 5 years from 1970-1974 comes to only Rs. 3,600/- and admittedly, the same

was also used for his marriage expenses alone. In that view of the matter, as the suit property is a separate property of the first defendant, it has to

be held that he has every right to dispose of it in the manner known to law. Accordingly, answering all the substantial questions of law against the

respondent, the second appeal is allowed. Consequently, the judgment and decree passed by the learned first appellate Court in A.S. No. 40 of

2006, dated 26.10.2006, is set aside and the judgment and decree passed by the learned trial Court in O.S. No. 423 of 2004, dated 30.06.2005,

is restored. No Costs.