Ramaswamy and another vs R. Murugan

This second appeal is preferred from the judgment and decree rendered by the learned II Additional District Court''s Incharge Judge and Chief

Judicial Magistrate, Krishnagiri dated 17.3.1998 made in A.S.No.36 of 1996, confirming the judgment and decree dated 12.3.1996 made by the

District Munsif, Uthangarai in O.S.No.340 of 1995.

The plaintiffs are the appellants herein.

The appellants herein filed a suit for declaration of title and consequential permanent injunction with the following averments: The second

plaintiff/second appellant is the fourth wife of the first plaintiff/first appellant. The respondent is the son of the first appellant through his second wife

Shyamala. The first appellant purchased 3 acres and 87 cents in Survey No.21/1 Ranadathampatti. The plaint schedule mentioned 7 acres and 31

cents is situated in S.No.21/1 Ranadathampatti. Out of the said 7 acres and 31 cents, the first appellant purchased 3 acres and 87 cents under a

sale deed dated 14.2.1972 and other 3 acres and 37 cents under another sale deed dated 9.1.1978. The second appellant purchased the

remaining 13 cents under a sale deed dated 25.8.1975. Thus the plaint schedule landed property totalling 11 acres and 31 cents exclusively

belonged to the appellants and they are in possession and enjoyment of the same all along. The first appellant was employed as a teacher. The suit

properties are purchased out of the income of the first appellant and out of the contributions made by the second appellant by sale of her jewels.

Subsequent to the purchase of the said lands, the appellants obtained lands from the Land Development Bank. They installed motor pumps and

constructed a thatched house, where they were residing. The respondent was under the care and custody of the appellants. The appellants

arranged his marriage. The respondent who was following a wavered life, has sent away his wife. The advise by the first appellant on the

respondent had no effect. The respondent assaulted the first appellant number of times and caused bodily injuries. The respondent did not help the

plaintiffs/appellants even in the cultivation of the said lands. He was separately living in a place Kombampattu village. Since the first appellant

become old, and he wanted to make a provision for the second appellant, he executed a will on 29.9.1989 bequeathing all the schedule mentioned

properties in favour of his wife. Aggrieved by the same, the respondent was threatening that he would murder the appellants. On 25.11.1990, the

respondent came with hirelings and made an attempt to trespass into the suit properties and hence the appellants/plaintiffs filed a suit for declaration

and consequential permanent injunction.

The respondent contested the suit with the following allegations:

The respondent''s mother is the first wife of the first appellant. The sale deeds dated 14.2.1972 and 9.1.1978 were obtained in the name of the first

appellant as kartha of the family. The sale consideration was paid from out of the joint family funds and nucleus. The sale consideration for the sale

deed dated 25.8.1975 in the name of the 2nd appellant was paid from joint family funds. The suit property is only a joint family property and the

defendant/respondent is a co-parcener. The first appellant sold some joint family ancestral properties at Perumal naickenpatti. The respondent is

residing in the thatched house and is doing personal cultivation. Only due to the ill-treatment of the appellants, the respondent''s wife deserted his

company. As the respondent is in possession and enjoyment of the suit property, he had no necessity to trespass into the same. The suit is bad for

misjoinder of parties and cause of action. Hence the suit is liable to be dismissed.

On the above pleadings, the trial Court after framing the necessary issues, tried the suit and rejected the reliefs of declaration and permanent

injunction, as prayed for by the appellants. Aggrieved by the same, the appellants preferred an appeal before the District Court in A.S.No.36 of

1996. The learned District Judge after hearing the appeal, confirmed the judgment of the lower Court and dismissed the appeal. Aggrieved by the

said judgment, the appellants have preferred this second appeal.

At the time of admission, the following substantial question of law was formulated for consideration by this Court:

Whether the learned District Judge was justified in holding that the suit properties are joint family properties overlooking that the nucleus must be

established as a fact and cannot be assumed or presumed and only the apparent tenor of the document should be taken into consideration

especially when it was not established that detriment to family property have resulted in the acquisition ?

This second appeal is an outcome of a judgment and decree rendered by the learned Additional District Judge, Krishnagiri, confirming the

judgment and decree of the District Munsif''s Court, Uthangarai, in a suit filed by the appellants herein for declaration of title in respect of the suit

properties and permanent injunction.

The case of the appellants, who sought for declaration that they were in title and were entitled to the plaint schedule properties and

consequential relief of permanent injunction was that the landed properties measuring 7 acres and 31 cents in Survey No.21(1) of Ranadathampatti

were purchased by them under Exs.A1 to A3 sale deeds exclusively out of the income of the first appellant, who worked as a teacher and by sale

of jewels belonging to the second appellant and that they have been in possession and enjoyment of the same all along.

The defence putforth by the respondent was that the plaint schedule properties belonged to the joint family; that the appellants were not the

exclusive owners as contended by them; that the joint family was owning properties and out of the income derived from those joint family

properties, these landed properties in question were purchased in the names of the appellants and that the properties were partible in nature among

the family members; that he was all along in possession of the properties.

Both the Courts below framed the question; whether the suit properties belonged to the joint family, and have recorded a concurrent positive

finding in favour of the respondent holding that the plaint schedule properties belonged to the joint family, wherein the respondent was also a

member and hence the appellants were not entitled to the reliefs of declaration and permanent injunction. Under the above circumstances, this

Court formulated the above substantial question of law for determination.

Arguing for the appellants, the learned counsel would submit that the first appellant has discharged the burden of establishing that there was no

adequate income from the joint family properties, to enable him to acquire the properties under Exs.A1 to A3; that there was no adequate income

from the small extent of ancestral properties, which were only punja lands; that the respondent had not established that income from the ancestral

properties is sufficient and it would form a nucleus to purchase the suit properties; that the respondent has not adduced any evidence at all

regarding the income from the ancestral properties or that there was any surplus out of which the suit properties were purchased; that as a matter

of fact, the respondent should have established the existence of a nucleus the existence of the ancestral properties and the income derived so as to

enable the appellants to purchase the suit properties, but they have failed to do so; that the first appellant was a teacher for over 33 years and out

of his own earnings, he has purchased the suit properties; that both the Courts below have presumed the existence of the joint family nucleus, but

the law would expect the said fact be established by proper evidence; that the sale deeds Exs.A1 to A3 stood in the name of the appellants would

clearly lead only to the presumption that the properties were purchased out of their own funds, unless and until the contrary is proved; that in the

instant case, the burden was on the respondent who claims the property as joint family property and hence the respondent should have established

the availability and adequacy of the nucleus; that the presumption that the properties acquired by the appellants were joint family properties could

be drawn only when there was a nucleus and surplus income was received; that the properties under Exs.A1 to A3 were purchased for a total

consideration of Rs.12,388 and there was no evidence of income from ancestral properties; that taking into consideration that the first appellant

was earning his income from 1968, the lower Court should have held that the first appellant purchased the properties out of his own income and

they were his self acquisitions; that the first appellate Court has misunderstood thoroughly the plaint averments in para 4; that the first appellant had

stated that the suit property was treated as joint family properties, but on the other hand it has been fairly stated that the suit properties were

enjoyed as family properties by the appellants and thus the appellants have nowhere admitted that the suit properties were joint family properties.

Placing much reliance on the two decisions of our High Court, rendered by His Lordship S.S. Subramani, J. as he then was, and reported in

Muniappa Naciker Vs. Balakrishna Naicker, and in Amrithalingam v. Uthayathamma and others 1999 (2) LW 713, the learned counsel for the

appellants would contend that it is for the person who contends that the suit properties belonged to the joint family to prove by adducing sufficient

evidence not only the existence of the joint family nucleus but also the surplus income for the purchase of the suit properties, and in the instant case,

there was no evidence to show that any income was derived from the joint family properties already existing and they were utilised for the

acquisition of the suit properties; and thus the lower Courts were in error in finding that the suit properties belonged to the joint family; that on the

contrary the appellants have purchased the suit properties under Exs.A1 to A3 and that the first appellant was working as a teacher for more than

three decades. Under the stated circumstances, the judgments of the lower Courts have got to be set aside and the second appeal has got to be

allowed, granting the reliefs as asked for by the appellants.

Countering to the above contentions of the appellants'' side, the learned counsel appearing for the respondent would contend that the

respondent was the son of the first appellant; that the respondent was all along living with the appellants and residing in the thatched house, raised

in the suit properties; that the first appellant was the Manager of the joint family, consisting of the appellants, respondent and other members; that

the joint family was already owning punja lands; that out of the surplus income derived from the joint family nucleus, the landed properties in

question were purchased in the name of the appellants'' that the first appellant has categorically admitted in evidence that there was no partition in

the joint family properties; that the appellants taking undue advantage of the fact that the sale deeds were taken in their names, have come with a

false claim that they are exclusively entitled to the suit properties; that the appellants who were claiming title to the property by alleging that they

have purchased the same out of their own income, have not produced any evidence to show that they were deriving income which was sufficient to

purchase the properties in question; that the respondent has been in possession and enjoyment of the properties all along, and thus the lower

Courts were perfectly correct in holding that the suit properties were joint family properties and hence the appellants were not entitled to the reliefs

asked for, and therefore the second appeal has got to be dismissed.

At the outset it has to be stated that the appellants herein filed a suit seeking for a declaration that they are entitled to the plaint schedule

mentioned landed properties, alleging that they were self acquired out of the income of the first appellant, as a teacher and out of the proceeds of

sale of the jewels of the second appellant. It is not in controversy that the first appellant worked as a teacher from the year 1968. But the

appellants have not adduced any evidence as to the income of the first appellant from 1968 onwards by or any material to show that the jewels of

the second appellant were sold. It is true that the sale deeds under Exs.A1 and A3 stood in the name of the first appellant and Ex.A2 sale deed

stood in the name of the second appellant.

It is an admitted position that the appellants and the defendant along with other members constituted a Hindu joint family. The first-appellant

has been the manager of the joint family all along. The first appellant as P.W.1 has categorically admitted that there was no partition in respect of

the family properties. At the time of the acquisition of the landed properties under Exs.A1 to A3, the first appellant was the Manager of the joint

family. From the evidence of P.W.1, it is clear that there existed ancestral properties at Perumalnaickenpatti; that they were under the enjoyment of

his father till 1964 when he died and those properties came to the hands of P.W.1. The respondent has stated in his evidence that the ancestral

family owned 7 acres of land in that village, which fact is not controverted by the appellants. When asked about those lands, the first appellant has

given a very evasive answer stating that he did not know to whom he sold the properties and so also the consideration for the same. He has sold

the properties.

The first property under Ex.A1 was purchased in the year 1972 for a sum of Rs.4,000. Taking into consideration that the first appellant was

first employed as a teacher only in the year 1968 and the purchase of the property under Ex.A1 in the year 1972 for a consideration of Rs.4,000

and in the absence of any proof as to the income of P.W.1 and any savings therefrom during the period of four years, the contention of the

appellants'' side that the first appellant had sufficient money in hand to purchase the property under Ex.A1 cannot be accepted.

It is not the case of the appellants that the first appellant had got any other source of income. The property under Ex.A2 was purchased by the

second appellant for a sum of Rs.300 in the year 1975. The other landed properties as found under Ex.A3 were purchased in the year 1978. It is

an admitted position that the ancestral properties were sold after the purchase under the above sale deeds. If so, it is for the first appellant as the

manager of the joint family, to speak about those sale proceeds. In the absence of any evidence, it cannot be held that the properties under Exs.A1

to A3 were self acquisitions of the appellants, merely because of the reason that the first appellant was employed as a teacher and Exs.A1 to A3

documents stood in the name of the appellants.

It is pertinent to note that during those acquisitions, there were ancestral properties in the hands of the first appellant, who was the manager of

the joint family. It is admitted by P.W.1 that his son, the respondent herein was with him all along till five years prior to his evidence before the

Court. From that it would be clear that all the parties were living together till 1990. The letters written by the first appellant and produced by the

respondent would clearly show that the respondent was the only male member in that family and looking after the properties. The first appellant, as

per his evidence, has all along been working in different places, away from the said village and thus, the available evidence would indicate that the

properties in question were treated only as a joint family properties and not as the self-acquired properties of the appellants.

The two decisions of this Court reported in Muniappa Naciker Vs. Balakrishna Naicker, and Amrithalingam v. Uthayathamma and others,

1999 (2) LW 713 relied on by the appellants'' side, cannot be applied to the present facts of the case. From the perusal of the judgment reported

in Muniappa Naciker Vs. Balakrishna Naicker, it could be well seen that the plaintiff therein one of the members of the joint family sought for a

relief to protect his possession alleging that the suit properties were his self acquisition and they were not joint family properties. In the second case

referred by the appellants'' side Amrithalingam v. Uthayathamma and others, 1999 (2) LW 713, the plaintiff therein sought for partition alleging that

the suit properties belonged to the joint family which were purchased out of the joint earnings and funds of the plaintiff therein and out of the sale

proceeds of the already existing joint family properties.

But, in the instant case, the appellants have come forward with a declaration of title to the suit properties, alleging that they were self-

acquisitions. Admittedly, the first appellant was the manager of the joint family and he was in possession of the ancestral joint family properties at

the time of the acquisitions of the properties in question. He has come forward with a suit for declaration of title. The second appellant, who is the

wife of the first appellant claimed title to a piece of land, alleging that it was her self acquisition. But, both the appellants have not adduced any

proof in that regard. The above two decisions cannot be applied in this case, since in either of those two cases, the manager of the joint family did

not come for a relief of declaration of his title. If the arguments advanced by the learned counsel for the appellants is to be accepted, the appellants

who come forward with a suit for declaration of title to a particular property need not prove anything in that regard and rely on the evidence of the

opposite party. The Court is of the view that the initial burden always rests on the person to adduce sufficient and acceptable evidence to show

that the properties in question were self-acquired. Without adducing any evidence whatsoever, the appellants cannot either shift the onus to the

respondent to prove their contention or be permitted to say that the respondent who put forth a defence that the suit properties belonged to the

joint family, has not proved it. The Court is of the view that the appellants have failed to prove that the properties in question were self-acquired.

But on the contrary, the available evidence on record would show that there existed a joint family consisting the first appellant as manager, the

second appellant, the respondent and other members and that there were already existing ancestral joint family properties in the hands of the

manager at the time when the sale deeds were obtained in the names of the appellants. According to the respondent, father of the first appellant

owned 7 acres of landed properties which came to the hands of the first appellant and he was deriving income out of it, which is not controverted

by the appellants. It is admitted by the first appellant that his father died in the year 1964.

The learned counsel appearing for the appellants would strenuously argue that it is true that there were ancestral joint family properties at the

time of acquisition of the suit properties, but the respondent has failed to show that out of the surplus income from those nucleus, the properties in

question were purchased by the appellants and in the absence of the same, both the Courts below were in error in holding that the properties

covered under Exs.A1 to A3 belonged to the joint family, and that in the absence of any proof to that effect, it has to be held that the properties

were self-acquisition of the appellants. But this contention of the appellants'' side cannot be countenanced having regard to the facts and

circumstances of the case, the available evidence on record and the position of law in that regard.

It is true that the proof of the existence of the joint family did not lead to the presumption that the properties held by any member of the family

was joint, and the burden rested upon the party asserting that any item of properties was joint to establish the said fact. But in the given case,

where it is established that the family possessed some joint family properties, which from its nature and relative value might have formed the

nucleus, from which the property in question might have been acquired, the burden then would shift to the party alleging self acquisition to establish

affirmatively that the property was acquired without the aid of the joint family property. There is ample evidence to show that there was a joint

family; that the said joint family owned ancestral properties; that those properties were never divided, that the joint family was deriving income out

of those properties, and that the appellants who were in actual possession and enjoyment of those properties, have suppressed all the material facts

as to the extent, income, etc. The assertion of the respondent that the joint family owned 7 acres of land is not controverted by the appellants.

It is well pertinent to note that the first appellant has categorically admitted that the family properties are yet to be divided. It is not the case of

the appellants that any of the properties excepting the properties in question remain to be partitioned between the parties. That piece of evidence

coupled with the pleadings as found in paragraph 4 of the plaint would indicate that the properties belonged to the joint family, and that they were

treated as such and partible among them.

Under the aforestated facts and circumstances of the case, this Court is of the view that the appellants are not entitled to the reliefs sought for,

for the reasons, as follows:

The appellants have not adduced any evidence whatsoever as to the availability of the source in their hands to make the acquisition under Exs.A1

to A3 except alleging that P.W.1 was employed as a teacher. It is pertinent to note that he was employed as a teacher in the year 1968, but the

acquisition was made in the year 1972, within a span of four years. There existed a joint family consisting of the first appellant, as manager and

other members including the respondent. The said joint family was owning ancestral properties viz., 7 acres of lands. The first appellant being the

Manager of the said joint family was in possession of the already existing ancestral properties, and was in management thereof, and acquired the

properties under Exs.A1 to A3. Hence it has to be presumed in law that there were joint family properties. In the instant case, that presumption

can be safely drawn for the reason that 7 acres of lands were available in the hands of the first appellant from the year 1964 till the first item of

property was purchased under Ex.A1 in 1972, and hence the suit properties could have been acquired only out of the surplus income from those

ancestral properties. The properties acquired under Exs.A1 to A3 were treated all along as joint family properties and not as separate properties

of the appellants. There is ample evidence to show that the respondent as member of the joint family was also looking after those family properties.

Therefore, both the Courts below have given a concurrent positing finding in favour of the respondent holding that the plaint schedule properties

were joint family properties and hence the appellants'' claim for declaration has to be negatived.

The appellants though claimed to be in possession of the suit properties on the date of the suit, have not proved the same by proper and

acceptable evidence. From the evidence of the first appellant, it is clear that the appellants were not residing in the suit property. On the contrary,

the respondent who asserted his possession in the suit property, has filed documentary evidence indicating his possession in the suit property. Thus

the appellants are not entitled for a permanent injunction also.

Under the facts and circumstances of the case and having regard to the available evidence, both the Courts below were perfectly correct in

holding that the appellants are not entitled to the reliefs of declaration and permanent injunction, and the judgments of the Courts below do not

require any interference by this Court.

In the result, this second appeal would fail, and the same is dismissed, without any orders as to the costs. The judgments and decree of the

Courts below are confirmed. Consequently, connected CMP is also dismissed.