Partition of Ancestral property – Contention that suit properties were purchased from income derived from ancestral property – No substantial evidence led to prove said fact – It cannot be said that suit properties were purchased from income of joint family property – Suit rightly dismissed.

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Veerappan v. Cauvery, (Madras)(Madurai Bench) : Law Finder Doc Id # 1383581
MADRAS HIGH COURT
(Madurai Bench)

Before:- Mr. R.Pongiappan, J.

A.S.(MD)No. 161 of 2007. D/d. 25.02.2019.

Veerappan and others – Appellants

Versus

Cauvery and others – Respondents

For Appellants :- Mr.R.P.Ramachanthiran, Advocate.

For Respondents No.1 :- Mr.V.K.Vijayaragavan and Mr.D.R.Murugesan, Advocates.

For the Respondent No.2 :- Mr.R.S.Prabhu, Advocate.

NUTSHELL

Partition of Ancestral property – Contention that suit properties were purchased from income derived from ancestral property – No substantial evidence led to prove said fact – It cannot be said that suit properties were purchased from income of joint family property – Suit rightly dismissed.

Succession Laws – Suit for partition – Dismissal of – Justification – In order to prove the fact that the suit schedule properties were purchased from the income derived from the ancestral property, there found no substantial evidence let in on the side of the plaintiffs – Furthermore, no documents exhibited on the side of the plaintiffs to prove that the suit schedule properties were purchased from the income derived from joint family property – Therefore, it cannot be held that the suit schedule properties were purchased from the income of the joint family property/ancestral property – Hence, appeal challenging impugned dismissal order, dismissed.

[Paras 29, 30 and 31]

Cases Referred :

Adiveppa v. Bhimappa, (2018) 1 L.W. 957

D.S.Lakshmaiah v. L.Balasubramanyam, 2004 (3) LW 49

Kothanramappa v. Thimmaiah, (2006) 3 MLJ 82

Muniappa Naicker v. Balakrishna Naicker (1998) 2 LW 259

JUDGMENT

Mr. R.Pongiappan, J. – The appellants herein are the plaintiffs and respondents herein are the defendants in O.S.No.95 of 2004 on the file of learned Principal District Judge, Pudukottai.

2. The Appeal Suit has been filed by the plaintiffs against the Judgment and Decree dated 08.03.2007 made in O.S.No.95 of 2004 on the file of the learned Principal District Judge, Pudukottai, whereby, the learned Principal District Judge dismissed the suit filed for partition.

3. The averments made in the plaint, in brief, are as follows:

(i) Originally, the suit schedule properties belonged to one Kasimariambalam, who is the grandfather of plaintiffs and defendants. The said Kasimariambalam had two sons, namely, Rengasamy and Rajagopal. The plaintiffs in the suit are legal heirs of Rajagopal and the defendants are legal heirs of Rengasamy. After the demise of Kasimariambalam, both Rengasamy and Rajagopal were enjoying the ancestral properties. Rajagopal died in the year 1956. After the demise of the said Rajagopal, the father of the defendants and the plaintiffs are enjoying the ancestral properties. Rengasamy also died in the year 1960. After the death of Rengasamy, the plaintiffs and the defendants, without any partition, are enjoying the said properties.
(ii) It is stated by the plaintiffs that as per the Hindu Succession Act, the plaintiffs are entitled to half share of the suit schedule properties and the defendants are entitled to the remaining half share. There was a dispute between the plaintiffs and the defendants over the enjoyment of the suit properties jointly. Hence, the plaintiffs, on 05.09.2003, requested the defendants for partition. But, the defendants had not come forward for partition. Hence, the suit has been filed.
4. The first defendant remained ex parte before the trial Court.
5. The second defendant filed a written statement, which was adopted by the third defendant. The averments made in the written statement in brief are as follows:

(i) The relationship between the defendants and the plaintiffs is admitted. The suit properties did not belong to the deceased Kasimariambalam. Originally, there was an ancestral property, having an extent of 2 ma and it was a manikattu. There was no income derived from the said property.
(ii) It is stated by the defendants that their father Rengasamy went to Srilanka and returned to India. While he was alive in the suit village, he was working as a Document Writer and he was also an Astrologer and also seeing Manaisasthiram. It is further stated by the defendants that based on the income derived from Astrology and Manaisasthiram, he purchased so many properties, out of which, some of the properties were given by Rengasamy to his brother Rajagopal by way of partition. The said transaction happened 40 years back. The said properties were divided between the plaintiffs by way of partition. After the partition, the plaintiffs also sold out their share of the properties to the third parties. The defendants also sold out their share of the properties to the third parties. The parties are enjoying their respective shares as per the deed executed in favour of them.
(iii) It is stated by the defendants that there was no partition in respect of the suit schedule properties. As per the enjoyment of the properties, the patta was also issued to their respective parties. As of now, all are residing in separate houses. The 25th item of the suit schedule property belongs to the second defendant’s wife. The 21st and 23rd item of the properties belong to the first
(iii) It is denied by the defendants that the suit schedule properties are the joint family properties. Hence, the defendants prayed for dismissal of the suit.
6. Based on the abovesaid pleadings, the learned Principal District Judge, Pudukottai framed the following issues:
(i) Whether the suit properties are undivided Hindu Joint family properties of plaintiffs and defendants?
(ii) Whether the suit is not correctly valued for suit valuation and court fees?
(iii) Whether the plaintiffs are entitled to the relief as prayed for?
(iv) To what relief, the plaintiffs are entitled to?
7. During the time of trial, the first plaintiff examined himself as P.W.1. He has examined one Alagar as P.W.2 and marked 7 documents as Exs.A1 to A7. On the side of the defendants, the second defendant was examined as D.W.1 and 20 documents were marked as Exs.B1 to B20.
8. On consideration of oral and documentary evidence adduced on either side, the learned Trial Judge found that the suit schedule properties are not the Joint Family properties and hence, dismissed the suit.

9. Feeling aggrieved by the Judgment and Decree dated 08.03.2007, the plaintiffs/appellants have filed this Appeal Suit and prayed to set aside the Judgment and Decree passed by the learned Principal District Judge, Pudukottai and also for the relief of partition in respect of the suit schedule properties.

10. The learned counsel appearing for the appellants/plaintiffs contended that all the suit schedule properties were purchased by Rengasamy, who is the father of the defendants, by using the income derived from 66 cents of Ancestral properties, i.e. 2 ma. Those properties were purchased in the name of Rengasamy, for the reason that he is the karta of the joint family. Apart from that, on the side of the defendants, there was no evidence let in to prove that the deceased Rengasamy was having separate/sufficient income from his profession, i.e. Astrology and Manisasthiram, to acquire the suit schedule properties. The learned counsel further contended that only for the reason that the deceased Rengasamy is the karta of the family, Rajagaopal, the father of the plaintiffs, signed as a witness in Exs.B1, B3, B5, which are the sale deeds executed in favour of the deceased Rengasamy. He further contended that all the suit schedule properties were purchased in the name of Rengasamy 40 years back, i.e. in the year 1963 and no partition was effected between the plaintiffs and defendants till date. But, the trial Court, without considering the said aspects and without appreciating the documents and evidence adduced before it, dismissed the suit. Hence, the Judgment of the Trial Court is nothing, but, it is perverse and it requires interference.

11. On the other hand, the learned counsel appearing for the respondents/defendants contended that there was an ancestral property, which was having an extent of 2 ma. As the said property was a manikattu, there was no possibility of income derived from the said property.

12. During the time of arguments, the learned counsel appearing for the plaintiffs contended that the ancestral property is having an extent of 66 cents.

13. The learned counsel appearing for the respondents/defendants contended that the earlier property was purchased by the father of the defendants in the year 1938 itself under Ex.B1. The other suit schedule properties were also purchased by the father of the defendants individually. Without showing the income derived from the common ancestral property, it cannot be held by the plaintiffs that all the suit schedule properties were purchased from the income derived from the common ancestral properties.

14. Considering the arguments made on both sides, the only question to be decided is whether the suit schedule properties are the ancestral properties or not?

15. In order to decide the said issue, it is necessary to look into the documents produced before the trial Court.

16. Ex.A1 is the Settlement chitta pertaining to item Nos.1 to 11 of the suit schedule properties, which stands in the name of the second defendant. Ex.A2 is the Settlement chitta pertaining to item Nos.12 and 13 of the suit schedule properties, which also stands in the name of the second defendant. Ex.A3 is the patta issued in the name of the first plaintiff in respect of item nos.15 and 16 of the suit schedule properties. In respect of item no.17 of the suit schedule property, patta was issued to the sons of Arunachalam and 2nd defendant. Ex.A4 is the patta issued in the name of the first plaintiff in respect of item nos.18 and 19 of the suit schedule properties. For item No.20 of the suit schedule property, patta was issued in the name of the second defendant. Ex.A5 is the chitta, which reflects that item Nos.21 and 22 of the suit schedule properties stand in the name of the first defendant and item nos.23 and 24 are recorded in the name of one Ramasamy, S/o.Muthusamy, who is not connected with the family of the plaintiffs and the defendants. Ex.A6 reflects that item nos.26 and 27 of the suit schedule properties stand in the name of Chinnayya, who is also not connected with the family of the plaintiffs and defendants. On going through Ex.A7, it also reflects that item no.18 stands in the name of Thangasamy, who is no way connected with the family of plaintiffs and defendants.

17. In fact, it is a settled position that the revenue record does not confer any title in respect of the person mentioned in the patta.

18. As per the documents exhibited on the side of the plaintiffs, only item nos.15,16,18 and 19 stand in the name of the first plaintiff. But, the defendants, in order to appreciate their pleas, produced various sale deeds in respect of the suit schedule properties, on various dates, i.e. from the year 1938 to 1998. As per Ex.B2, the deceased Rengasamy, who is the father of the defendants, executed a Othi deed (lease deed) in favour of Aavidai Ambalam. Ex.B3 is the sale deed executed by Rengasamy in favour of one Adaikkalam Ambalam in respect of 160 kulis of brk;kz; btl;of;fhL g[“;ir. In the same way, so many properties were sold out by the deceased Rengasamy, through Ex.B4 to Ex.B8. In fact, Ex.B11, B12, B17 are the sale deeds, which are not related to the suit schedule properties.

19. On the other hand, the second defendant, on 04.09.19978, under Ex.B9, purchased item No.11 of the suit schedule properties from one Natesan. In the same way, he purchased Survey no.1 /3 from one Parameswaran and in respect of the same, the sale deed was marked as Ex.B13.

20. A perusal of Ex.B15 reveals that the first plaintiff, on 13.10.1997, purchased the property in S.No.7/5 from one Meyappan. On the same day, he disposed of the property bearing Survey No.23/4B in favour of one Chinnathambi. From the perusal of documents as stated above, it is clear that the suit schedule properties are not the joint family properties.

21. It is the case of the plaintiffs that all the suit schedule properties were purchased by the father of defendants by using the income derived from the common ancestral property. When it is the plea of the plaintiffs, the duty is cast upon them to prove that their contention is true and genuine. But, even in the plaint itself, the extent of the ancestral property was mentioned without any resemblance to the arguments advanced by the learned counsel appearing for the plaintiffs.

22. The Hon’ble Apex Court in the case of Adiveppa & others v. Bhimappa and another, reported in (2018) 1 L.W. 957 held as follows:

“The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property.”
23. This Court, in the case of Kothanramappa v. Thimmaiah and others, reported in (2006) 3 MLJ 82, has observed as follows:
“Under the Hindu Law, if the manager in the management of the joint family properties standing in his name, acquired properties, in the course of management, as manager of the joint family, the burden is on the manager to prove that such acquired properties are his own properties and not joint family properties. Where a manager of the joint family blends his self-acquired properties with the joint family properties, all the properties would become joint family properties.”
24. Following the principles laid down by the Hon’ble Apex Court and by this Court, it is the duty of the plaintiff to prove that the ancestral property is having sufficient income for acquiring the suit schedule property. But, in the case on hand, there was no evidence let in on the side of the plaintiffs to believe that all the suit schedule properties were purchased in the name of Rengasamy, who is the kartha of the family.
25. Further, P.W.1, in his evidence, has specifically stated as follows:

vd; bghpag;ghthy; Kjd; Kjypy; th’;fg;g;ll fpuaj;jpd; tUlk; tp!;jPuzk; vd;dhy; brhy;yKoahJ/ Kjd; Kjypy; th’;fg;gl;l fpuak; vt;tst[ U:gha;f;F bgwg;gl;lJ vd;W vdf;Fj; bjhpahJ/ ehd; rpW gps;isahf ,Ue;jjhy; vd; bghpag;gh vg;go fpuak; th’;fpdhh; ahhplk; th’;fpdhh; vd;W vdf;F bjhpahJ.

26. From the above evidence, it is very clear that the first plaintiff did not know the details of purchase and details of the income derived from the ancestral property. Even though the plaintiffs stated that there was a document available to show that the suit schedule property is the joint family property, in order to prove the same, no document was adduced on the side of the plaintiffs. Therefore, the contention of the plaintiffs that the suit schedule properties are the ancestral properties, cannot said to be correct.

27. In the decision of this Court rendered in the case of Muniappa Naicker v. Balakrishna Naicker reported in (1998) 2 LW 259, it has been observed as follows:

“Nucleus has to be established as a matter of fact and its existence cannot be usually presumed or assumed on probabilities. Apparent tenor of the document should be taken into consideration.”
28. Further, in the judgment of the Hon’ble Apex Court reported in 2004 (3) LW 49 (D.S.Lakshmaiah and another v. L.Balasubramanyam and another), it has been observed as follows:
“The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of 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 shit 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.”
So, following the principles laid down by the Hon’ble Apex Court and by this Court, the proving of fact that the suit properties are purchased from the income derived from the ancestral property, is a matter of fact. Since the said plea was taken by the plaintiff, the same has to be proved by the plaintiff.
29. But, in the case on hand, in order to prove the fact that the suit schedule properties were purchased from the income derived from the ancestral property, there was no substantial evidence let in on the side of the plaintiffs. Furthermore, no documents were exhibited on the side of the plaintiffs to prove that the suit schedule properties were purchased from the income derived from joint family property. Therefore, it cannot be held that the suit schedule properties were purchased from the income of the joint family property/ancestral property.

30. The learned Principal District Judge, in its Judgment, has clearly observed the above factual positions and held that the plaintiffs had not proved their case. So, finding of the trial Court is in proper perspective manner and no interference is required.

31. In view of the above, the Appeal Suit is dismissed. No costs.

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