Vijayalakshmi, Gandhimathi and Krishnammal vs Kanniammal, Kandasamy, Venkatchalam, Singaravelu, Kamalam, Devaki and Dr. Lakshmi

V. Kanagaraj, J.—This Appeal Suit is directed against the judgment and decree dated 27.10.1987 made in O.S. No. 62 of 1985 by the

Court of III Additional Subordinate Judge, Coimbatore

The appellants herein are the plaintiffs before the trial court and they filed the suit for partition and separate possession of 3/10 shares in the suit

properties and for future mesne profits at the rate of Rs. 50,000/- per annum; that according to the plaintiffs, themselves and defendants 5 to 7 are

the daughters and defendants 2 to 4 are the sons of one Rangasamy Nadar and the 1st defendant is his widow; that the said Rangasamy Nadar

who acquired the suit properties and other properties out of his earnings in coconut business died intestate on 19.11.1975; that as per Hindu

Succession Act, the properties devolve upon the plaintiffs and defendants and the defendants 1 to 4 are managing the properties after the death of

Rangasamy Nadar; that they have colluded together and are denying partition; that to defraud the share of the plaintiffs, they are creating false

documents, tampering and fabricating the joint family documents and are not showing the accounts for the expenditure and income; that the said

Rangasamy Nadar was cultivating the lands belonging to Karivaratharaja Perumal temple to an extent of 7.50 acres as a cultivating tenant; that he

left his self acquired jewels of about 150 sovereigns, 50 cattles like cows and buffalows, steel and silver vessels worth about Rs. 25,000/- and

other movables; that the plaintiffs are not willing for the joint ownership on account of the attitude of the defendants; that the plaintiffs approached

the defendants in the last week of December 1984 for partition but the defendants denied it; that the attempts made by the plaintiffs through the

representation and through mediators for amicable partition are in vain. Hence the suit.

The 4th defendant would file a written statement adopted by the defendants 1 to 3,5 and 6 contending that items 6 and 7 of the suit properties

were managed by the 2nd defendant under a deed of endowment conferring right; that when Rangasamy Nadar was unmarried, his father

Karuppana Nadar gave two items of properties as gift and they are incorrectly described in items 4 and 5 of the plaint as ancestral in character;

that the correct Survey Number is not 114/2 but is 113/3, measuring 2.03 1/2 acres; that items 1 to 3 were purchased by Rangasamy Nadar and

the properties have been treated as joint family properties; that during the life time of Rangasamy Nadar, all the daughters except one were

married; that the 3rd plaintiff and her husband took away the family car bearing Registration No. M.D.E.6130 and sold it for nearly Rs. 20,000/-

that after the death of Rangasamy Nadar, a family arrangement was made by all the sons, daughters and their mother, before relations to provide

the usual household necessities such as coconuts, rice and jaggery to the plaintiffs and other sisters, but the said arrangement was not reduced in

writing; that because of this concluded family arrangment, the plaintiffs did not take any action for several years; that without proof the plaintiffs

have filed the suit vexatiously; that since the properties are ancestral one, the plaintiffs can claim a share if any, only in the share of late Rangasamy

nadar; that the suit will be barred by Order II Rule 2 C.P.C; that there was no demand for partition and mediation; that the plaintiffs are not entitled

to any mesne profits or accounting because of the concluded family arrangement; that the plaintiffs have no cause of action; that there is no merit in

the suit and the same is to be dismissed.

Based on the above pleadings by parties, the lower court has framed the following issues, viz.,

Whether the plaintiffs are entitled to get partition as claimed?

Whether the family arrangement contended by the 4th defendant is true and binding on the plaintiffs?

Whether the plaintiffs are entitled to mesne profits . If so, at what amount?

To what relief?

The court below would then conduct the trial wherein, on the part of the plaintiffs, two witnesses, viz., 2nd plaintiff and one Muniappan would

be examined as P.Ws.1 and 2. Likewise, on the part of the defendants the 4th defendant would be examined as D.W.1 and two other witnesses

would be examined as D.Ws.2 and 3.

So far as the documentary evidence is concerned, 7 documents would be marked on the part of the plaintiffs as Exs.A1 to A.7. Like wise 37

documents would be marked on the part of the defendants as Exs.B.1 to B.37.

In consideration of these evidence placed on record and appreciating the same in the context of the facts and circumstances of the case, the

lower court would arrive at the conclusion that the plaintiffs are entitled to partition and separate possession of their 3/40 share in items 1 to 5 of

the suit properties, the properties described as item 4 in S.No. 113/3 measuring 2.03 1/2 acres of wet lands in Ex.B.2 and accordingly passed a

preliminary decree for partition and separate possession of the plaintiffs'' 3/40 share in items 1 to 5 of the suit properties without costs, directing the

respondents 1 to 4 to render accounts in respect of the above said items 1 to 5 from the date of plaint to the date of delivery of possession. It is

also ordered that the above said properties will be divided by metes and bounds by appointing a Commissioner on the petition filed by the parties

and in other respects dismissing the suit.

Aggrieved, the plaintiffs, have come forward to prefer the above appeal on grounds such as (i) the lower court having found that the family

arrangement pleaded by the defendants is not true, has gone wrong in holding that items 1 to 5 of the suit properties partake the character of the

joint family properties; (ii)that the lower court has failed to bear the vital difference and the legal implications between the ""foster son"" and the

adopted son"" while meeting the points in dispute; (iii) that the lower court without confining itself to the pleadings has travelled beyond the same;

(iv) that the lower court has misdirected iteself regarding the question of adoption of Rangasamy Nadar by Kandasamy Nadar which did not

directly arise for consideration, thus arriving at an erroneous conclusion; (v) that regarding the nature of the properties got by the Rangasamy

Nadar under Ex.B2 dated 9.1.1932 were considered ancestrally of Rangasamy Nadar and Kandasamy Nadar is baseless and erroneous; (vi) that

the lower court has gone wrong in arriving at the conclusion that out of income from items 4 and 5 of the suit properties, other items 1, 2 and 3

have been acquired by Rangasamy Nadar thereby branding these items also as joint family properties of Rangasamy Nadar; (vii) that the lower

court has gone wrong in holding that the items 1 to 5 of the suit properties had been enjoyed as joint family properties by Rangasamy Nadar and

therefore for himself and for his sons they are the joint family properties, but instead the Court ought to have held that items 1 to 5 are the self

acquired properties of Rangasamy Nadar; (viii) that the lower court failed to see that the contesting defendants had nothing to show that

Rangasamy Nadar had given up his rights in these items of properties as his self acquired and separate properties and treated them as joint family

properties; (ix) that the lower court has gone wrong in not properly considering the evidence of P.Ws 1 and 2 as a whole but dealing with the same

in piecemeal; (x) that the reasoning of the lower court to arrive at a conclusion that items 1 to 5 of the suit properties are joint family properties are

erroneous, baseless and not supported by any legal evidence; and (xi) that the lower court ought to have held that Rangasamy Nadar had separate

and independent means of source of income and items 1 to 3 were purchased by him on various occasions utilising his separate funds and they

were self acquisition and that the lower court has gone wrong in holding that the items 2 of the plaint schedule properties are not available for

partition.

On such grounds the appellants would pray to allow the appeal setting aside the decree and judgment dated 27.10.1987 made in O.S.No. 62

of 1985 by the Court of Subordinate Judge, Coimbatore, further decreeing the suit allotting to the appellants 3/10 shares in items 1 to 5 and item II

of the plaint schedule properties with mesne profits and costs throughout.

During arguments the learned counsel appearing on behalf of the appellants would argue to the effect that the suit is for partition and separate

possession of 3/10 shares and for mesne profits and preliminary decree had been passed on 27.10.1987 in favour of the plaintiffs for 3/40 shares

in items 1 to 5 of the suit schedule of properties; that totally there are seven items of suit properties; that the items 6 and 7 are concerned the

dispute is regarding the leased out properties belonging to the temple and the suit is pending regarding these items and hence, the plaintiffs are

aggrieved.

Regarding the facts, the learned counsel would argue that the plaintiffs'' contentions are that the suit properties are self acquired properties by

their father Rangasamy Nadar who died on 19.11.1975; that his wife Kanniammal is the first defendant, defendants 2 to 4 are their sons and

brothers of the plaintiffs, the defendants 5 to 7 are daughters and sisters of the plaintiffs; that the plaintiffs'' contentions are while Rangasamy Nadar

was alive he was selling coconut and toddy and out of that income he purchased the suit properties and other properties; that both the plaintiffs and

the defendants are enjoying the possession of the suit properties; that the defendants 1 to 4 being brothers of the plaintiffs are managing the suit

properties; that the first defendant is not properly accounting for the income and fabricated some documents to defraud the plaintiffs; that

Rangasamy Nadar died intestate and the properties being self acquired for him, the plaintiffs'' contention is that they are entitled to 3/10 shares

from the suit properties.

Continuing to argue, the learned counsel would further submit that written statement filed by the fourth defendant has been adopted by the

defendants 1 to 3 and 5 and 6; that according to the defendants items 6 and 7 are belonging to their Karivaratharaja Perumal temple and therefore

these items cannot be the subject matter of partition; that regarding other items father of the plaintiffs and the defendants was gifted some

properties in the year 1932 by his father''s cousin Kandaswamy Nadar; that according to the defendants, items 4 and 5 are ancestral in character

in the hands of Rangasamy Nadar. Their primary contention is that out of the income earned from items 4 and 5 of the suit properties, items 1 to 3

were purchased by Rangasamy Nadar and therefore items 1 to 3 are ancestral in character and while he was alive the fourth defendant has

contributed his physical labour between 1964 and 1975 for the joint family properties. Learned counsel would further submit that the contention of

the plantiffs is that the sisters were given in marriage and the oral family arrangement was that after the death of father on 19.11.1975, the sisters

gave up their rights and no movables were available for partition.

Regarding the documents Ex.A1 dated 23.6.1934 is a sale deed executed by Kandasamy Nadar in favour of Rangasamy Nadar in respect of

item No. 2; that Ex.A2 dated 7.12.1949 is a sale deed executed by Muthammal and others in favour of Rangasamy Nadar which covers items 3

and 4 of the suit properties; that Ex.A7 is a letter by the second defendant to the husband of the first plaintiff dated 8.2.1979; that Ex.B4 dated

18.6.1914 is the certified copy of the trust deed executed by Kandasamy nadar in favour of Saravana Perumal temple; that Ex.B2 dated 9.1.1932

is a gift deed executed by Kandasamy nadar in favour of Rangasamy nadar in respect of items No. 5 of the suit properties; that Ex.B1 dated

17.4.1971 is a sale deed under which item No. 1 properties was sold.

Learned counsel would then assess the oral evidence adduced by parties and would say that the second plaintiff, Gandhimathi is P.W.1 and

would recite relevant portions from the evidence of P.W.1 in chief and cross examination and would say that this evidence is clear regarding the

plaintiffs'' right. Learned counsel, citing the relevant passages from the judgment of the lower court, would comment on them ultimately citing the

following judgments reported in

(i) SATHYANARAYANAN RAO -vs- VENKOBA RAO (1998 II MLJ 167)

(ii) AMIRTHALINGAM -vs- UTHAYATHAMMA AND OTHERS 1999 2 L.W. 713

So far as the judgment reported in 1999 2 L.W. 713 is concerned, the learned counsel would point out from paragraph 22 wherein the burden

of proof relating to the joint family properties as brought forth by the Honourable Apex Court held in Mudi Gowda Gowdappa Sankh Vs. Ram

Chandra Ravagowda Sankh, , is as follows:

The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as

coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a

member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be

such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus

shifts on to the person who claim the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the

family estate.

In the other judgment cited above, viz., 1998 2 MLJ 167 the learned single Judge of this Court held as follows:

Mere existence of nucleus alone is not enough; it must be proved that there was surplus income for purchase of other properties and the same

must be in the hands of the Managing Member"".

In reply, on the part of the learned counsel appearing on behalf of the respondents, it is submitted that the question is whether the plaintiffs are

entitled to 3/10 shares as claimed on their part or whether they are entitled to 3/40 shares in item Nos. 1 to 5 of the suit properties without costs as

decided by the trial court further directing the respondents 1 to 4 to render accounts in respect of the said items of properties from the date of

plaint to the date of delivery of possession besides ordering division of properties by metes and bounds by appointing a Commissioner; that the

defendants did not agree for partition as per the terms of the plaintiffs; that their father died on 19.11.1975; that the evidence of second plaintiff is

that from and out of the income of two and half acres of wet lands atleast Rs. 1000/- per year was assured and the subsequent purchase was only

made from this property and would cite paragraph 20 of the judgment wherein the lower court would give weightage to the evidence of P.W.2 to

the effect that Kandasamy nadar and Rangasamy nadar were living together and were doing agriculture jointly and therefore, based on this

admission the lower court has arrived at the conclusion that in spite of Kandasamy nadar gifted A item of the property, still they have been enjoyed

by both as family property.

The learned counsel would also cite a judgment reported in KUPPANNA CHETTIAR -vs- RAMACHANDRAN 1993 LW 656 wherein

the Division Bench of this Court has held that the orders passed by the Authorised Officer in these cases, which are admittedly in accordance with

the provisions of Section 3(4)(b) of the Act cannot be interfered with by the High Court u/s 115 of the CPC.

In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, the

pertinent question for decision in the case in hand is whether the suit properties are of the nature of co-parcenary properties belonging to the Hindu

joint family or should they be considered as self acquired properties of the late Rangasamy nadar, the father of the plaintiffs and the defendants 2 to

7 and husband of the first defendant. Once this issue is solved, then solving the other issues is rather a child''s play so far as the decision of the suit

connected to the above appeal is concerned and it is pathetic to note that the lower court has not even framed an issue to decide whether the suit

properties are either self acquired or ancestral to Rangasamy nadar. In fact it should have been the main issue for deciding the suit, this being the

basic and legal issue, without which any decision that is made by the lower court is only inconsistent. Therefore, at the outset it has to be concluded

that the lower court has not decided the suit framing proper issues based on which no proper evidence could be let in by parties. Without

contesting this issue, any other issue decided would only be inconsistent.

Moreover, from the documents Ex.A1 dated 23.6.1934, a sale deed executed by Kandasamy Nadar in favour of Rangasamy Nadar in

respect of item No. 2, Ex.A2 dated 7.12.1949 is a sale deed executed by Muthammal and others in favour of Rangasamy Nadar which covers

items 3 and 4 of the suit properties, Ex.B1 dated 17.4.1971 under which Thiruvengadam naidu and others executed a sale deed in favour of

Rangasamy nadar and Ex.B2 dated 9.1.1932, a gift deed executed by Kandasamy nadar in favour of Rangasamy nadar in respect of items No. 5

of the suit properties, it is undoubtedly focussed to convey the meaning that all these items of the suit properties had been either purchased by

Rangasamy Nadar or were gifted in his favour. How the lower court in arriving at a different conclusion than to say that these properties are self

acquisitions of Rangasamy nadar is a mystery; that no other evidence let in or made available excepting for paltry oral evidence adduced on the

part of P.W.2, is either negligible or ignorable. Particularly, in support of the legal dictum, there should be a prima facie case proved on the part of

the defendants in this case to attribute the theory of joint family properties with the nucleus in existence and sufficient income flowing from and out

of such joint family properties as surplus income for the purchase of these properties are the paramount burden cast on the defendants. Prima facie

it is their burden to establish these legal requirements, lest it could only be treated as self acquired properties of late Rangasamy nadar since all

those properties were either purchased by Rangasamy nadar under different sale deeds or gifted in his favour and therefore there is no contra legal

evidence adduced even to the minimum extent required by law so as to hold that the properties were joint family properties of Rangasamy nadar.

First of all, the existence of joint family has not been attempted to be proved, so as to hold that the properties purchased and obtained by

Rangasamy nadar in the manner aforementioned, as joint family properties for the trial court to treat them as such in order to arrive at the

conclusion as it has arrived and hence the decision arrived at by the lower court without being supported by valid evidence is certainly erroneous.

It is also well settled that just for not framing certain issues it is not at all necessary to remand the matter to the trial court for framing of such

issues and letting in further evidence, which, according to settled law, the Appellate Judge could itself sit at the place of trial Judge and decide the

issue based on the available materials, as it could be determined with the help of the available documentary evidence. There is absolutely no room

to arrive at the conclusion that these properties are the joint family properties of late Rangasamy nadar so as to arrive at a different conclusion than

to treat the plaintiffs and the defendants on par with each other so far as the division of properties are concerned. Since all the suit properties could

only be treated as self acquisitions of late Rangasamy Nadar, definitely the plaintiffs and the respondents as well, in law, become equally entitle to

1/10 share each and hence automatically the plaintiffs 1 to 3 would become jointly entitled to 3/10 shares in the suit properties. There is no place to

entertain any ambiguity or suspicion to arrive at such a conclusion and therefore this Court has no hesitation in deciding the conclusion arrived at by

the lower court is erroneous and illegal causing interference into the same.

In result,

(i) The above appeal suit succeeds and the same is allowed.

(ii) The judgment and decree dated 27.10.1987 made in O.S. No. 62 of 1985 by the Court of III Additional Subordinate Judge, Coimbatore is

set aside.

(iii) The suit in O.S. No. 62/1985 on the file of the Court of Subordinate Judge, Coimbatore is decreed as prayed for with costs.