V. Rangarajan vs Ulagu Arunachalam and Others

R. Mala, J.—This Second appeal has been filed to set aside the judgment and decree dated 22.01.1992 made in A.S. No. 96 of 1988 on the file of the learned Additional District Judge, Ramanathapuram at Madurai reversing the judgment and decree dated 21.03.1988 made in O.S. No. 285 of 1986 on the file of the District Munsif, Ramanathapuram.

The averments in the plaint filed by the Plaintiffs are as follows:

The Plaintiff''s grand father is one Ayyavupillai. He was doing business at Malaysia and out of his income, he purchased the properties in India and he died on 09.02.1957 leaving behind his only son who is the father of the Plaintiff. The Plaintiff is having 5 sons. The Plaintiff and the Defendants 2 to 6 are the sons of 1st Defendant. The 1st Defendant is the only son of Ayyavupillai. Item No. 1 of the suit property has been purchased by his father in favour of the 1st Defendant. The 1st Defendant has no income to purchase any property. During the life time of his grand father Ayyavupillai, he executed the settlement deed in favour of the Plaintiff and the Defendants 2 to 5 in respect of other properties. The suit properties were in possession and enjoyment of the grand father of the Plaintiff. After his death, the Plaintiff and the Defendants 2 to 5 were enjoying the same jointly. The Plaintiff is having 1/6 share of the suit properties and the Defendants 1 to 5 are having 1/6 share respectively. The Plaintiff and the Defendants 2 to 5 issued notice to the 1st Defendant, who had attempted to alienate the property on 25.01.1985. Even though, they have given warning to one Ramasamy, he purchased the property in favour the 6th Defendant, who is his relative. The 1st Defendant is leading a wayward life and his wife also is mentally challenged and hence, he obtained loan from 3rd parties and alienate the same and hence, the Plaintiff is claiming one share in the suit property and thus he prayed for the preliminary decree for partition.

The gist and essence of the written statement filed by the 1st Respondent is as follows:

The suit properties are not the joint family properties of the Plaintiff and the Defendants 1 to 5. The father of the 1st Defendant gone to Malaysia and did his business there and he purchased properties in his name. So, the properties purchased in the name of 1st Defendant is the separate and self acquired property of the 1st Defendant. The Plaintiff and the Defendants 2 to 5 have no right over the property. After the settlement deed dated 05.02.1957, it is false to contend that the properties are jointly enjoyed by the Plaintiff and the Defendants as own property and he has given proper reply to the notice issued by the Plaintiff and Defendants 2 to 5. The 1st item has been handed over to the 6th Defendant since the properties have been alienated. Item Nos. 3 to 7, 13 and 14 are situated in water body which were the ancestral property of Ayyavupillai and there is no surplus income from the property. The father of the 1st Defendant has gone to Malaysia and did snacks business in the Railway Station on contract basis and out of his income, he has purchased the properties in 1927 and he returned to India and purchased the properties in his name. The 1st Defendant has also gone to Malaysia in 1927 and worked there in monthly salary and returned to India in 1936 and again he had gone to Malaysia in 1945-46 and returned in 1947 and out of his income, he purchased the item Nos. 1,8,10,12 and 15 of the suit property in his favour and thus the said properties are all self acquired properties of the 1st Defendant. During the life time of Ayyavupillai, he executed a settlement deed on 05.02.1957 in favour of the 1st Defendant and the same was registered only on 19.03.1957 since Ayyavupillai was died. After that, their respective shares were handed over to them they are in possession and enjoyment of the same. IN 1977, the 1st Defendant has mortgaged the 1st item of the property and subsequently, he redeemed the same. Since he is having blood pressure and underwent eye surgery and obtained loan from 3rd parties he sold the 1st item to the 6th Defendant for valuable consideration. Hence, the 6th Defendant is the obsolete owner of the 1st item of property. He has no objection for the partition in respect of the item Nos. 3 to 7, 14 and 15 of the suit property. Since the 1st Defendant asked the Plaintiff to return the 7 sovereign jewel of his wife, which was given for his daughter''s marriage, the Plaintiff filed this suit against the Defendant and thus he prayed for the dismissal of the suit.

The gist and essence of the written statement filed by the 6th Defendant is as follows:

The 6th Defendant is the bonafide purchaser of the 1st item of the suit property and it is not the ancestral and joint family property. The 1st item of the property was purchased by the 1st Defendant out of his own income. The averment in the plaint that the father of the 1st Defendant has purchased the property in favour of the first Defendant since the 1st Defendant has no income is absolutely false. The 6th Defendant is not aware of the notice issued by the Plaintiff to one Ramasamy. It is false to contend that the 1st Defendant is leading a wayward life. The 1st item of the property stands in the name of the 1st Defendant, who is enjoying the property by way of paying house tax. After the property has been purchased by the 6th Defendant, he is enjoying the property by mutation of revenue records by paying house tax. Neither the Plaintiff nor the Defendants 2 to 5 had made any objection, no cause of action against the 6th Defendant and thus he prayed for the dismissal of the suit.

The learned trial Judge, after considering the averments both in the plaint and written statements and considering the arguments advanced by both the counsel framed necessary issues and considering the oral evidence of P.W.1 and D.Ws.1 to 3, Exs.A1 to 5 and Exs.B1 to 56 and granted preliminary decree in respect of item Nos. 3 to 7,13 and 14 and dismissed the suit in other aspects. Aggrieved over against the said judgment and decree, the Plaintiff has preferred an appeal in A.S. No. 96 of 1988 before the Additional District Judge, Ramanathapuram at Madurai, where the same was allowed and set aside the judgment and decree of the trial Court and granted preliminary decree as prayed for by the Plaintiff in O.S. No. 285 of 1986. Against the said judgment and decree, the 6th Defendant has preferred this present second appeal.

At the time of admission, this Court framed the following substantial question of law:

Whether the lower appellate court erred in holding that the property purchased by the Appellant (item No. 1 in the suit schedule) from the first Defendant is also the joint family property of the family of the first Defendant and his sons, while in the sale deed showing the above said purchase and in the prior othi deed of the first Defendant, the first Defendant was described as owning the said property as his own self acquired property and while Ex.A1 document dated 05.02.1957 actually did not include the above said item No. 1 of the property?

The learned Counsel appearing for the Appellant would submit that the Appellant has purchased the item No. 1 of the suit property under Ex.B1 on 08.03.1985 and that property is the self acquired property of the 1st Defendant and he enjoyed the property as his own and sold the same in favour of the Appellant herein and the trial Court after considering all the documents has come to the correct conclusion that the item Nos. 1,2, 8 to 12 and 15 are the self acquired properties of the 1st Defendant, but the 1st appellate Court without considering the nature of the property granted preliminary in respect of all the items. The learned Counsel appearing for the Appellant would further submit that the item Nos. 3 to 7 are water body and the same was not fit for cultivation and it was admitted by P.W.1. So there is no income yielding the ancestral properties. The 1st Defendant has purchased the item Nos. 1,2, 8-12, 15 out of his own income and the 1st Defendant was in possession and enjoyed the same. Ex.A1, which was executed by the 1st Defendant''s father, wherein he has mentioned that the properties are not the joint family property. He further submitted that the 1st Defendant has purchased the property under Ex.B32 on 27.12.1954 and he mortgaged the same under Ex.54 on 19.05.1977 and he also given an othi under Ex.B53 on 20.02.1978 that has been discharged under Ex.B1 on 21.09.1980 which shows that the 1st Defendant alone is the owner of the property, but the 1st appellate court has not considered the documents filed by the 1st Defendant and hence he prayed for the setting aside the judgment and decree of the 1st appellate Court.

Per contra, the learned Counsel appearing for the Respondent would submit that the father/1st Defendant was examined as D.W.1, who had stated that item Nos. 3 to 7, 13 and 14 are the joint family properties and the item Nos. 1,2,8 to 12 and 15 are not the joint family properties and they are all separate properties, but the father had no separate income and hence, the 1st appellate court has considered all the aspects in a proper perspective and come to the correct conclusion. To substantiate his argument, he relied upon the decision in P.R. Kannaiyan (died) and Others Vs. Ramasamy Mandiri and Others, stating that even though, the 1st Defendant has purchased the property in his name, the property has been blended with the other joint family properties, which was treated as joint family properties and hence, the 1st appellate court granted the preliminary decree in respect of all the items which is proper and it does not warrant any interference, hence he prayed for the dismissal of the appeal.

Heard the learned Counsel appearing for the Appellant and the learned Counsel appearing for the Respondent and perused all the materials available on record.

It is well settled principle of law that the initial burden is upon the person, who pleaded that the suit properties are the joint family properties. Here, to prove the same, the Plaintiff has not filed any document except Exs.A1 to A5. Ex.A1 is the settlement deed executed by the grand father Ayyavupillai. The Plaintiff has issued notice dated 25.05.1985, which is marked as Ex.A2. The acknowledgement signed by the 1st Defendant and one Ramasamy are marked as Ex.A3 and 4 respectively and the reply given by the 1st Defendant is marked as Ex.A5. Except this, the Plaintiff has not filed any documents to show that the suit properties are the ancestral joint family properties which was purchased out of the ancestral joint family nucleus income. To substantiate the same, he has not examined any one except himself as P.W.1. Except the ipsi dixi of P.W.1 and Ex.A1 no other oral evidence or documents to prove that item Nos. 1,2, 8 to 12, 15 are joint family properties.

At this juncture, it is appropriate to consider the Ex.A1, wherein, he has stated that the properties mentioned in Ex.A1 is self acquired property of his grand father, which read as follows:

Hence, the grand father of the Plaintiff/1st Respondent has settled his self acquired properties in favour of his grand children. In Ex.A1, the grand father himself executed settlement deed and he stated that he purchased the properties out of his income. Furthermore, he has stated that the properties has been purchased out of his own earnings and he is in possession and enjoyment of the same and to avoid future litigation, he wanted to gift the property separately to all the grand sons. In that he has gifted the ''A'' schedule to the Plaintiff, ''B'' schedule to Kasiviswanathan/D2, "C" schedule to Sivasubramanian/D3, "D" schedule to Panchatcharam/D4 and "E" schedule to Karunanithi/D5 and he also handed over the possession to the respective sharers, which shows that the intention of the donor is that to avoid the future litigation between the grandsons, he has gifted the properties in favour of his 5 grand sons separately. Hence, the allegation made by the Plaintiff in the plaint that the properties have been jointly enjoyed is unacceptable one.

It is well settled principle of law that the person, who plead that the suit properties are joint family properties, it is his bound and duty to prove the same. Now it is appropriate to consider the decision reported in (2004) 3 L.W. 49 (D.S. Lakshmaiah and Anr. v. L. Balasubramanyam and Anr.), wherein, it has been held as follows:

The legal principle, therefore, is that there is no presumption of a property being joint family property only on account on existence of a Joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.

But, here no evidence to prove that the suit properties are joint family properties. Per contra, in Ex.A1, it has been clearly mentioned by the grand father that all properties has been settled in favour of the Plaintiff and his brothers and there is no evidence for blending also. Furthermore, even though the Plaintiff has stated that the properties are joint family properties, he himself admitted during the examination that it is a water log properties and it is not fit for cultivation and hence, there is no evidence to show that the properties have been purchased out of surplus ancestral nucleus income and the Plaintiff has not filed any documents to prove the same.

Per contra, the 1st Defendant has filed all the relevant document to prove that he is in the absolute owner and in the possession of the suit properties. Since, the Appellant is the bonafide purchaser of item No. 1 of the suit property, I am of the opinion that the trial Court has considered all the aspects in proper perspective, but the 1st appellate Court has committed an error in holding that the all suit properties are the joint family properties. Hence, the question of law is answered in favour of the Appellant stating that the properties stands in the name of the 1st Plaintiff/respondent are the separate properties and the property purchased by the Appellant from the 1st Defendant, i.e. from the lawful owner and hence, the Appellant is the absolute owner of the 1st item of the suit property.

In view of the answer given to the substantial question of law, I am of the view that the 1st item of the suit property is the separate property of the 1st Defendant and he was in the possession and enjoyment of the same by way of mutation of revenue records, payment of kist and house tax and he sold the same to the Appellant for valuable sale consideration as per Ex.B31 and hence, the Appellant is the bonafide purchaser of the 1st item of the suit property for value and hence, in respect of the 1st item of the suit property, the judgment and decree of the 1st appellate Court is liable to be set aside.

In fine, this second appeal is allowed and the judgment and decree dated 22.01.1992 made in A.S. No. 96 of 1988 on the file of the learned Additional District Judge, Ramanathapuram at Madurai is set aside only in respect of the 1st item of the suit property. No costs.