P.Perumal vs Sankarammal

The above second appeal arises out of the judgment and decree, dated 05.03.1998, passed in A.S.No.131 of 1997 by the learned Principal

District Judge, Kamarajar District at Srivilliputhur, confirming the judgment and decree in O.S.No.658 of 1993, dated 22.07.1997 on the file of

the Principal Subordinate Judge, Srivilliputhur.

2.Parties herein are hereinafter referred to as they were arrayed in the original suit.

3.The following is the genealogy of the family to which the parties belong:

TREE DIAGRAM OMITTED

3.The plaintiffs have filed the suit for partition of their 5/16 share in the suit properties. According to the plaintiffs, Chinna Perumal Naidu and his

three sons are co-parceners. Suit items 1 to 5 and 19 are joint family properties, as they fell to the share of Chinnaperumal Naidu under

Ex.A.1/partition deed dated 14.05.1924. Suit items 6 to 9 were acquired with the aid of joint family income in the name of said

Alagammal(mother). Krishnasamy Naidu died in 1950. After the death of Chinna Perumal Naidu in 1963, Thirumalai Naidu (D1), the elder

member of the family did not look after the family. Hence, the third defendant started managing the joint family and its properties as he was

worldly- wise. Items 11 to 18 were purchased in the name of Perumal Naidu/third defendant with the aid of joint family income. All the properties

are joint family properties and therefore, they are entitled to 5/16 share.

4.The third defendant has filed a written statement and it was adopted by the defendants 1 & 2. The defendants admitted that the suit items 1 to 5

and 19 was allotted to the share of Chinna Perumal Naidu. However, they have pleaded that the said Krishnasamy Naidu/husband of the first

plaintiff separated himself from the joint family in the year 1950 and he was given 50 cent of lands comprised in Sy.No.198 and that therefore, the

plaintiffs are not entitled to any share in the remaining joint family properties. Their further case is that items 6 to 9 are separate properties of

Alagammal. Asfaras items 11 to 18 are concerned, the case of the defendants is that they are the self-acquired properties of the third defendant.

The fourth defendant has been added as a party, as fourth item of the suit properties was mortgaged in her favour by the third defendant. This

mortgage will not bind the plaintiff''s share.

5.Before the trial court, the second plaintiff examined himself as P.W.1. The plaintiffs have examined two more witnesses. The third defendant has

been examined as D.W.1. The first defendant has been examined as D.W.3. The plaintiffs have marked 25 exhibits. On the side of the defendants,

42 exhibits have been marked.

6.It appears that the plaintiffs did not press their claim with respect to 10th item. The trial Court accepted the case of the plaintiffs with respect to

items 1 to 5 and 11 to 19 and granted a preliminary decree for partition of 5/16th share. The suit was dismissed in respect of items 6 to

The trial court has held that items 6 to 9 were the separate properties of Alagammal. The trial court disbelieved the case of separation of

Krishnasamy Naidu.

7.Both parties were aggrieved by the decree passed by the trial court. The third defendant had preferred an appeal against the judgment in respect

of item Nos.1 to 5 and 11 to 19 (A.S.No.131 of 1997). The plaintiffs have preferred a cross-appeal in A.S.No.45/98 against the judgment in

respect of items 6 to 9. In the appeal, exhibits D.43 to 46 have been marked as additional documents. The first appellate court, heard both the

appeals together and rendered a common judgment. The appellate Judge confirmed the findings of the trial court and dismissed both the appeals.

8.Aggrieved by the judgment of the first appellate court, the third defendant preferred the present second appeal. The memo of cross-objections

filed by the plaintiffs has been dismissed as withdrawn.

9.At the time of admitting the second appeal, the following substantial questions of law have been formulated for consideration.

The suit is filed by the plaintiffs in the year 1993. The plaintiffs contended that item Nos.11 to 18 were purchased in the benami

name of the third defendant from the joint family income. Benami transactions (Prohibition) Act (45 of 1988) came into force on

19.05.1988. Section 4(1) of the Act prohibits the right to recover property held benami. In such circumstances whether the suit filed

by the plaintiff after 19.05.1988 is maintainable in law and whether the decrees granted by the courts are sustainable in law

Whether the courts below are justified in applying different yardsticks, while considering the properties standing in the name of

mother and sister on the one hand and the properties standing in the name of the third defendant/appellant on the other hand

Whether the courts below are correct in fixing the burden of proof on the third defendant with respect of item Nos.11 to 18 of the

suit properties, when the documents of title with respondents of the said properties are standing in his individual name"" And

4.Whether the plaintiffs are entitled to seek for partition when the second plaintiff himself has admitted the fact of earlier partition in his

sale deed Ex.B.1

Points:

10.The learned counsel for the appellant did not advance arguments on point No.1 as the properties in question, according to the plaintiffs are held

by a co-parcener in a Hindu joint family . The learned counsel for the appellant would submit that the courts below have concurrently erred in not

appreciating the evidence properly and that therefore, this Court is at liberty to re-appreciate the evidence on record and record its own

conclusion. In this connection, he relied on a judgment of the Supreme Court in Ramlal and another Vs. Phagua and Others [(2006) 1 Supreme

Court cases 168], wherein, the Honourable Supreme Court has held as follows:

Lower Courts having concurrently erred in not appreciating oral and documentary evidence properly, held High Court was at liberty to

reappreciate evidence and record its own conclusion reversing orders passed by lower courts.

11.The relationship of the parties is admitted. It is also an admitted fact that Chinna Perumal Naidu and his brothers partitioned their joint family

properties under the original of Ex.A.1/partition deed (1924). Suit items 1 to 5 and 19 were allotted to the share of Chinna Perumal Naidu. It is

not in dispute that Chinna Perumal Naidu and his three sons are co- parceners and the properties allotted under Ex.A.1 to Chinna Perumal Naidu

are joint family properties. Therefore, it is clear that items 1 to 5 and 19 are joint family properties.

12.The contention of the appellant/third defendant is that Krishnasamy Naidu has separated from the joint family in the year 1950 and he was given

50 cents comprised in Sy.No.198/2 and it was sold by the second plaintiff under Ex.B.1/sale deed (1984) and that therefore, the plaintiffs are not

entitled to any relief in the suit. He relied on Ex.B.1/sale deed to submit that there was prior partition. The case of partial partition as regards

Krishnasamy Naidu was disbelieved by the Courts below. Admittedly, there is no document to show that there had been a partial partition. In

Ex.B.1, the second plaintiff has stated that the property was allotted to Chinna Perumal Naidu and thereafter, his father enjoyed the property.

There is no indication in the document that there had been partial partition. There is no recital to the effect that the property covered by Ex.B.1 was

allotted to his father (Krishnasamy Naidu) in a partition. It is not in dispute that separate possession of a portion of a property by a co-sharer

would not lead to presumption of partial partition. It appears from Ex.B.39, dated 05.02.1974, that the plaintiff and defendants 1 & 3 have sold

jointly the property comprised in Sy.No.884 and divided the sale proceeds. The second plaintiff was given 1/3rd share in the sale proceeds. The

sale by all the three male members would show that there was no partition in the year 1950. Therefore, I hold that the courts below have not

committed error in coming to the conclusion that there was no partition during the life time of Krishnasamy Naidu.

13.The learned counsel for the appellant would submit that the courts below have wrongly cast the burden of proof on the third defendant. The

learned counsel for the appellant has pointed out that as the plaintiffs have claimed that the properties standing in the name of the third defendant

are self acquired properties, the initial burden is on them to prove that the properties were purchased with the aid of joint family income and it is for

them to show that the joint family has surplus income for acquiring these properties, on the date of acquisition of these properties. The learned

counsel relied on the decisions in ( Arjunan V. Munusamy ) (Madras) (2013 AIR CC 2527), P.Kamakshi Ammal Vs. P.Venkatesan and Ors,

(1986 1 MLJ 438) and Kandaswami Chettiar and Others Vs. Gopal Chettiar and Others (1975 2 MLJ 184). The learned Senior Counsel for the

respondents/plaintiffs cited the decision in Makhan Singh (dead) by Legal Representatives V. Kulwant Singh [(2007) 10 Supreme Court Cases

602]. A reading of the above decision makes it clear that the initial burden is on the plaintiffs to prove that the family was possessed of some

property, with the aid of which, the properties in question could have been acquired.

14.In the case at hand, it is the definite case of the plaintiffs that after the death of Chinna Perumal Naidu, the third defendant acted as manager of

the family. The second plaintiff has given evidence to that effect. The first defendant is the elder member of the family. He has not filed a separate

written statement. It is also not the case of the defendants that the first defendant managed the family and its affairs. It emerges from the materials

that the third defendant was the manager of the family. In Mallesappa V. Mallappa [1962] 2 S.C.J.589, it has been held that in the case of a

manager, the onus would be on the manager to prove that the acquisition in his name was without the aid of joint family income.

Item No.11 was purchased under Ex.A.6 for Rs.9,000/- on 05.06.1970. Item 12 and 13 were purchased under Ex.B.18, sale deed dated

12.02.1974. Item 14 and 16 were purchased under Ex.A.8 for Rs.14,000/-. Item 15 was purchased under Ex.A.9 for Rs.9,500/-. Item No.17

was purchased under Ex.B.25, sale deed dated 25.10.1989 for Rs.300/-. Item No.18 was purchased under Ex.B.19/sale deed dated 31.07.1968

for Rs.500/-. Both the parties have adduced evidence in support of their respective cases. It has come on record that the family had ancestral

properties comprising of nanja and punja lands with irrigation facility and houses. D.W.1 in his evidence would admit that the family owned 3 acres

27 cents agricultural lands. According to him, he has worked as a teacher for a short period (21.04.1967-02.05.1968) and earned Rs.240/- as

monthly salary. However, he has not produced any reliable document to show that he has saved money from his salary. He would admit that he

has no accounts for his income and expenditure. It appears that he had no other source of income except agricultural income. He has admitted that

he studied at Pachiyappa''s College, Chennai during 1969-1971. In his evidence, he has stated that he raised funds by mortgaging the properties

for purchase of properties in his name(items 11, 14 and 16). As per the mortgage deeds Exs.B.13 and 14, ancestral property in Sy.No.198 was

mortgaged. In Ex.B.13, he (the third defendant) was described as college student. It has already been found that there was no partial partition and

the family had income yielding nanja and punja lands. The third defendant has not stated that the income of the ancestral property which were

available at the time of acquisition was utilised in some other way. Therefore, the presumption under the Hindu Law has to be drawn and the

properties in question should be presumed to be joint family properties. The Courts below discussed all aspects of the case and came to the

conclusion that the properties in question were available for partition. The concurrent findings of facts of the courts below have been arrived at by

appreciation of evidence on record. I do not find any ground to come to a different conclusion. Hence, the contentions put forward by the

appellant cannot be accepted.

16.In the result, the judgment and decree of the courts below are confirmed. The second appeal is dismissed. As the parties are closely related,

they are directed to bear their respective costs. Consequently, connected miscellaneous petitions are also dismissed.