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Judgment
S.S. Subramani, J.—Both these Second Appeals arise from O.S. No. 356 of 1982, a suit filed for partition. Plaintiff therein is the appellant
in S.A. No. 1691 of 1986. Third defendant in that suit is the appellant in the connected Second Appeal. As per judgment dated 29-7-1985,
preliminary decree was passed in favour of the plaintiff holding that he is entitled to 8/35 shares in the plaint item. The said judgment was set aside
in appeal. Third defendant also claimed a share. When the suit was dismissed, the third defendant, being aggrieved, has also filed the connected
Second Appeal.
The material averments in the plaint are as follows:-
Plaintiff, defendants 1,2,3,5 and 6 are children of the 4th defendant born through late K.V. Subramaniam Chettiar. Defendants 5 and 6 are
daughters. Others are sons. 7th defendant is the wife of the first defendant. The other defendants in the suit are tenants, occupying portions of the
suit property.
It is the case of the plaintiff that late K.V. Subramaniam Chettiar, who died in the year 1978 at the age of 91, was permanently residing at
Salem, and the entire family migrated to Coimbatore for earning a better income. It is his case that Subramaniam Chettiar and the family were
doing traditional handloom weaving business and they were owners of some looms. They used to get yarn from various merchants, and after
weaving, the same was supplied to various merchants, and they had a flourishing business at Salem. About 30 years prior to the institution of the
suit, it is said that the entire family migrated to Coimbatore where they lived initially in the house of the elder daughter of Subramaniam Chettiar and
thereafter they resided in a rented house. It is the plaintiff''s case that the family members were contributing their labour and exertion to augment the
income of the family, and out of savings, the plaint A Schedule property was obtained. It is said that the family members had absolute faith in the
first defendant, who is the elder son, and so the property was purchased in his name. Misunderstandings arose after the death of the father, and
therefore, plaintiff has filed the suit for partition. The sale deed in Ex.A-1 or Ex.B-1 dated 1-12-1976.
In the written statement filed by the 1st defendant, he said that the family did not have any income nor was there any contribution either by
exertion or labour. Father and himself were the only members who knew weaving and both of them were conducting independent, separate
business. It was out of his own exertion, he could make some savings and purchase the plaint property in his name and, therefore, the same is his
self-acquisition. It is also said that the first defendant during the relevant time, was having his own business and was also having partnership
business with strangers, and the plaintiff was employed separately. It is also said that even though the father and the brother were all residing in the
same house, they were not having a common mess. It was only because of love and affection, all of them were living together, and not because the
plaint property was joint family property.
The 3rd defendant filed a written statement contending that it was due to the exertion of all the coparceners, the family property could be
acquired. He also said that the first defendant has executed a settlement deed in his favour whereby he has gifted a portion of the property. Since it
was acquired with the labour of the brothers, each of them will be entitled to an equal share. The 1st defendant has gifted his share to him as per
Ex.B-6. Therefore, he claims that apart from the share in his individual right, he is also entitled to the share gifted to him by the first defendant as
per Ex.B-6.
Before the trial court, elaborate evidence was taken. We find that Exs.A-1 to A-16 were marked on the side of the plaintiff. Apart from
examining himself as P.W.1, plaintiff examined two more witnesses as P.Ws.2 and 3. On the side of the defendants, Exs.B-1 to B-36 were
marked. Defendants 3 and 1 examined themselves respectively as D.Ws.1 and 2. Another witness was examined ad D.W.3.
Trial court came to the conclusion that the plaint property is a joint family property and the plaintiff is entitled to a share. A preliminary decree
was passed.
The matter was taken before the lower appellate court as A.S. No. 164 of 1985. The lower appellate court reconsidered the entire evidence
and came to the conclusion that the plaintiff has miserably failed to prove that the plaint property is a family property. Since the third defendant''s
right was not recognised in the preliminary decree, he filed a cross-objection before the lower appellate court. It held that Ex.B-6 was not
accepted by the 3rd defendant. It also held that the entire plaint property is the self-acquisition of the 1st defendant and, therefore, neither the
plaintiff nor the 3rd defendant is entitled to any share. The suit was, therefore, dismissed. It is against the conflicting judgments, plaintiff as well as
the 3rd I defendant have preferred these Second Appeals.
At the time of admission, the following substantial questions of law were raised for consideration in S.A. No.1691 of 1986:-
1) Whether the lower appellate court has property considered the material evidence, particularly me evidence of P.W.2 and D.W.2 while holding
that the suit property is not the joint family property and that it is the self-acquired property of the 1st defendant?
2) Whether the lower appellate court has rightly cast the burden of proof?
3) Whether the lower appellate court has properly applied the law relating to the joint family properties and the burden of proof and the nature of
evidence on the facts and circumstances of the case?
The following substantial questions of law were raised for consideration in S.A. No. 393 of 1987:-
1) Whether the lower appellate court misconstrued or omitted to construe the material evidence on record when it chose to reverse the judgment
and decree of the trial court?
2) Whether the lower appellate court was right in law in holding that the attestation of the document dated 1-6-1977 (equitable mortgage)
constituted admission of the exclusive title of the 1st defendant to the suit property?
3) Whether the lower appellate court was right in casting the burden of proof upon the plaintiff and appellant instead of on the first defendant?
4) Whether the courts below were right in law in holding that the settlement deed in favour of the appellant, though true, is not valid and not acted
upon allowing the plea of unilateral retreat by the first defendant?
5) Whether the lower appellate court was right in. its conclusions in law regarding the character of the suit property?
6) Whether the lower appellate Court was right in its conclusions about the plea of joint ownership of the suit property by joint exertions of all male
members?
Before going to the law, let us consider the proved facts in this case.
Subramaniam Chettiar (late) is the father and 4th defendant is the mother. It is admitted that the 4th defendant was not on good terms with the
1st defendant and she was living with the plaintiff, when she deposed as P.W.2. The evidence of P.W.2 was given importance by the learned
counsel for the plaintiff/appellant and, therefore, her relationship with the 1st defendant is material when we consider her evidence.
It is also admitted by the plaintiff that originally late Subramaniam Chettiar and the family were residing at Salem. They did not have a house to
reside. They occupied a rented house on a rent of Rs. 25/-. It was also admitted that in the family except the father and the elder son, no other
person knew the family profession, namely, weaving. Plaintiff and defendants 2 and 3 were all employed elsewhere, and there is no evidence in this
case to show that they helped in any manner the business run in the name of the first defendant. Plaintiff was a student till 1971 and thereafter he
got employment in a Bank, and at the time of the purchase of the plaint property, as evidenced by Ex.B-1. he was a Bank employee. It is not his
case that any portion of his salary has been contributed for the purchase of the property. Likewise, second defendant or third defendant also has
no case that they have contributed any share from their salary for the purchase of B Schedule property. The case put forward by the plaintiff is
joint exertion and labour in acquiring the properly.
Supporting the case of the plaintiff, we have also the evidence of the 5th defendant, elder sister of both the plaintiff and the 1st defendant. We
must understand that she has also claimed partition, supporting the claim of the plaintiff. The father died only in the year 1978. So, naturally, if the
father had any share, the daughters also will inherit under Hindu Succession Act. So, there was a common cause for both the. plaintiff and
defendants 2 to 5 against the 1st defendant. The evidence will have to be appreciated after taking into consideration that relationship.
The documentary evidence on the side of the plaintiff consists of Exs.A-1 to A-16. Ex.A-1 is a copy of the sale deed. Exs.A-3 to A-9 are
certain vouchers issued during 1971 for purchase of fabrics. How far they have got any correlation with the purchase of Ex.A-1 property, is not
explained . But it can be seen from those vouchers that they were issued in favour of the plaintiff. Plaintiff is the youngest son, and if it is a family
business, either it would have been issued in the name of the father or elder son. Exs.A-3 to A-9 do not show that plaintiff also contributed any
share for the purchase of the property. All the other documents are of the year 1982 and 1985, long after the purchase of the property under Ex.
A-1. So, the materials produced on the side of the plaintiff in the nature of documentary evidence are irrelevant for the purpose of coming to the
conclusion that Ex.A-1 property was purchased with those funds.
When we appreciate the evidence, it is admitted by plaintiff that he does not know weaving, nor defendants 2 and 3. It is also admitted that
even his mother (P.W.2) also does not know anything about weaving. The only person who has knowledge about the profession is their father and
the first defendant. It is also admitted that the father was managing the entire business at least upto two years prior to his death, and the entire
income and expenditure of the business was accounted through him.
Ex.A-1 property was purchased in the name of the first defendant. The only reason that is mentioned is, that everyone had confidence in the
first defendant and, therefore, irrespective of the fact as to who contributed or what is their share, the acquisition was made in the name of the first
defendant, for the benefit of all the members. Why it was not acquired in the name of the father is not explained though he died only two years
later.
It is further stated by the plaintiff that the family left Salem about 30 years prior to the institution of the suit, while he was a child. At that time,
the father had two or three looms, and the same were also disposed of to strangers and with that meagre capital, they came to Coimbatore and
resided with her first sister (examined as P.W.3 in the case). Later, they shifted to a rental building. It is admitted by P.W.1 that the rental
arrangement was with the first defendant and that too in the year 1960. Admittedly, at that time, the father was hale and healthy. Why the first
defendant took the building on rent is not explained. It was that rented building which was subsequently purchased under Ex.A-1.
In the evidence of P.W.2, she said that when they left for Salem, the father had a sum of Rs. 3,000/- or Rs. 4,000/- in his possession, and that
amount was invested for purchasing looms. Initially, they purchased three looms and subsequently by hard labour, the number of looms increased,
and finally it came to nearly hundred, it was out of the income from those looms, the plaint property was purchased. As stated earlier, we must first
understand the relationship between the first defendant and the mother. Except for the interested testimony of P.W.2, we do not have any other
evidence to support the case of the plaintiff. At the same time, we have got documentary evidence in this case to show that during the relevant time,
the first defendant was having his own income. We find that years before Ex.B-1, he was having his own business. he was investing moneys in
partnerships. He was also subscribing to various chits, and he was also borrowing amounts from persons and was discharging the same. P.W.2
was asked about the independent business of the first defendant. She only pleaded ignorance. If the father was in affluent circumstances at Salem
and the intention was to improve the business, we would have at least some evidence in this case to show that the assets belong to them.
Admittedly they did not have any immovable property at Salem. Admittedly they were residing in a rented building and that too on a meagre rent of
Rs. 25/-. We must also know the number of members in the family. Except the elder daughter, who is the 5th defendant, who was married at that
time, they had other sisters. Children had to be educated. They had to be provided with food, and other daughters also had to be given in
marriage. So, these expenses were to be met, and if at all the father was having any income, it would have been sufficient only to meet the
expenses of the family. To show that the father was having Rs. 3,000/- or Rs. 4,000/- at the time when they migrated to Coimbatore, we do not
have any evidence at all.
In the case of joint labour or joint exertion, plaintiff will have to substantiate as to what is the nature of contribution done by him, for the family.
He admitted that till 1971, he was a student and thereafter he got employment in the Bank. What is the nature of contribution he could have made
is only to be assumed. Likewise, during the relevant period, defendants 2 and 3 were also employed. They were full-time employees, both in
Government service. That also shows that they would not have contributed anything towards the alleged joint labour or joint exertion.
It is in these circumstances, we have to consider the decision reported in Bhagwan Dayal Vs. Mst. Reoti Devi, and thereafter his heirs and
legal representatives v. Mst. Reoti (deceased) and after her death, Mst. Dayavathi), wherein their Lordships held thus:-
Coparcenary is a creature of Hindu Law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a
family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the
subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by
consent express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the
limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The
identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire
property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or
property so acquired can be thrown into the common stock or blend with the joint family property in which case the said property becomes the
estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to
such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired
by them, it would not be governed by the law of joint family; for Hindu law does not recognise some of the members of a joint family belonging to
different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said
property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the
right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. The acquisitions made by the members of
different branches jointly cannot be impressed with the incidents of joint family property. They can only be co-sharers or co- tenants, with the
result that their properties pass by inheritance and not by survivorship.
In 1968 - II S.C.W.R. 895 (G.Narayana Raju (dead) by his legal representative v. G. Chamaraju & others), the Supreme Court held that if a
business stands in the name of any member of a joint family, it is for the coparcener to prove before Court that it is a family business. It was held
thus:-
It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint
family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener
grew up with the assistance of the joint family funds or that the earnings of the business were blended with the joint family estate, the business
remains free and separate. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint
family funds or as a family business is at question of fact.
In 1976-I-M.L.J.105=89 L.W. 19 S.N. (R. Selvaraj v. R. Radhakrishna Pillai), a Division Bench of this Court also considered a similar
question and held thus:-
It is not every sporadic or unimpressive contribution by a member of the joint family, may be the father, that would make the resultant activity, a
joint family activity. The contribution of labour, service or money by one member of the joint family to the other should be so conspicuous and
impressive that on a prima facie examination of such material, a reasonable and prudent person should gain the impression that the two members
were so associated with the common object of exploiting a commercial activity to the advantage of the joint family as a whole and in general. In the
absence of such essential features, which would make such contribution by one member to the other a commercial activity the intendment and
purpose of which is to make it a joint family trade, it is hazardous to infer that such unsigned activity between the members would be equated to a
co- ordinated activity on their part equitable to the activity of members of a Hindu joint family resulting in the properties acquired by such common
exertions joint family properties.
In Mulla - ''Principles of Hindu Law'' - 15th Edition (1982) at pages 297 and 298, the learned Author says thus:-
Property jointly acquired -(1) Where property has been acquired in business by persons constituting a Joint Hindu family by their joint labour, the
question arises whether the property so acquired is joint family property, or whether it is merely the joint property of the joint acquirers, or whether
it is ordinary partnership property. If it is joint family property, the male issue of the acquirers take an interest in it by birth. If it is the joint property
of the acquirers, it will pass by survivorship, but the male issue of the acquirers do not take interest in it by birth. If it is partnership property, it is
governed by the provisions of the Indian Partnership Act, 1932, so that the share of each of the joint acquirers will pass on his death to his heirs,
and not by survivorship.
(2) If the property so acquired is acquired with the aid of joint family property, it becomes joint family property.
(3) If the property so acquired is acquired without the aid of joint family property, the presumption is that it is the joint property of the joint
acquirers, but this presumption may be rebutted by proof that the persons constituting the joint family acquired the property not as members of a
joint family, but as members of an ordinary trade partnership resting on contract, in which case the property will be deemed to be partnership
property.
In N.R Raghavachariar''s Hindu Law - Principles and Precedents - 8th Edition (1987), at page 212, the learned author has said thus:-
Where some of the collaterals in a coparcenary acquire property without the aid of ancestral assets, they cannot set up a sub-coparcenary as
between themselves and to the exclusion of the other coparceners because a coparcenary cannot be created by an act of parties.
On the basis of evidence, it cannot be held that Ex.B-1 property was purchased out of joint exertion or labour of the members of the family.
As stated earlier, of the five coparceners, only the father and the elder son had contributed labour or exertion for the business: If that be so, it
cannot be said that the other coparceners also contributed in any way. The. father and the elder son alone cannot be a joint family to the exclusion
of the other members, nor can there be a coparcenary to the exclusion of defendants 2 and 3. Since the other coparceners have not contributed
anything, there cannot be any question of joint exertion and getting the benefit of the acquisition to them. If that be so, the question of treating the
plaint property as a family property will never arise.
The case of the first defendant was that all along, the father and the first defendant were doing separate business. The lower appellate court
appreciated the evidence and came to the conclusion that the statement must be true.
There is one big circumstance against the plaintiff in mis case, that is, long before the purchase under Ex. A-1, an agreement for sale was taken
as evidenced by Ex.B-12. That agreement for sale is dated 20-9-1972. It was years after, the sale was taken. The agreement for sale also stands
in the name of the first defendant. The subsequent conduct also shows that all the members treated the plaint property as property belonging to the
first defendant alone. On 1-6-1977, i.e., within a few months after the purchase of the property, it was mortgaged for a sum of Rs. 30,000/-. The
mortgage deed is attested by the plaintiff and the third defendant who are now the rival claimants for the property. The document was executed by
the first defendant claiming absolute ownership. Even though attestation may not amount to estoppel, that is also a relevant circumstance to be
considered in this case. To the knowledge of the plaintiff and the third defendant, the 1st defendant was dealing with the property as his own is
clear from Ex.B-9. The document is not impeached in the suit.
The trial court, while discussing the evidence, assumed that the first defendant should prove that the property is his self- acquisition. The trial
court was of the view that since the first defendant was in difficult circumstances, he would not have acquired the property. According to me, the
burden was wrongly cast on the first defendant.
The law is well-stated. Merely because there is a joint family, it does not follow that the family possessed any property. It is also well-settled
that if a person wants to claim a property as family property, it is for him to substantiate the same. As held in Achuthan Nair Vs. Chinnamu Amma
and Others, under Hindu Law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a
joint family property to establish it. On the admission of plaintiff himself, the father was managing the day-to-day affairs of the business till two
years prior to his death. The first defendant had nothing to do with that. The father was the manager. If the first defendant had nothing to do with
the property or business, it is for the plaintiff to prove why the family purchased the property in the name of the first defendant. The plaintiff has
miserably failed in that attempt.
The lower appellate court had considered the evidence in its entirety, and has come to the conclusion that the burden is only on the plaintiff,
and that the available materials also shown that the first defendant had his own source of income, and the property was purchased by him. The
mistake committed by the trial court was corrected by the lower appellate court. I do not think, the lower appellate Court has misread the
evidence that has been let in this case, nor has it omitted to consider any relevant piece of evidence, including the evidence of P.W.2 in coming to
the conclusion that the property is the self-acquisition of the first defendant. The lower appellate court has also rightly cast the burden of proof only
on the plaintiff, and on a correct approach, it came to the conclusion that the plaintiff is not entitled to any relief. The substantial questions of law in
Second Appeal No. 1691 of 1986 are therefore, found against the plaintiff.
Second Appeal No. 393 of 1987 is an appeal by the third defendant, who supported the case of the plaintiff, to a certain extent He does not
say that there was a joint family property. But he supports the allegation in the plaint that the property was purchased out of joint exertion and
labour and, therefore, the beneficiaries are the male members and, therefore, the first defendant is entitled to a share, and that the first defendant''s
share has been gifted to him under Ex.B-6. On the questions of law raised in that Second Appeal, I hold that Ex.B-9 was rightly interpreted by the
lower appellate court. If the third defendant had any right in the plaint property, as is now claimed, he would not have attested the mortgage deed
wherein the first defendant claimed absolute title. With open eyes, he has attested the document and allowed the first defendant to borrow on the
security. This, according to me, amounts to estoppel. It also amounts to an admission. The second question of law raised in S.A. No.393 of 1987
is found against the appellant. Question Nos. 1, 3, 5 and 6 raised in this Second Appeal have already been answered in the other appeal, namely,
S.A. No. 1691 of 1986.
On Question No. 4, the lower appellate court has come to the conclusion that there is no evidence to show that Ex.B-6 settlement deed has
been executed (accepted?) by the third defendant. That is purely an appreciation of evidence. Learned counsel for the appellant was not in a
position to put forward any argument against the said finding. Question No. 4 in S.A. No. 393 of 1987 is also found against the appellant/third
defendant. In the result, all the substantial questions of law that are raised in both the Second Appeals are answered against the respective
appellant. The Second Appeals are dismissed with costs.