Anjalai v. Pavunammal(died)

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 17.06.2009CORAM:THE HON'BLE MR. JUSTICE M.DURAISWAMYSecond Appeal No.465 of 2000Anjalai.. Appellant/Defendant Vs 1.Pavunammal(died)2.Annadurai3.Bala4.Elumalai (Respondents 2 to 4 are brought on record as LRs. of the deceased sole respondent as per order dated 17.6.2009 made in CMP No.1574/2008) .. Respondents/ Plaintiff SECOND APPEAL filed under Section 100 of the Code of CivilProcedure judgment and decree dated 4.11.1999 made in A.S.No.73 of1999 on the file of Additional District Court, Tiruvannamalaireversing the Judgment and Decree dated 16.3.1999 passed inO.S.No.578 of 1990 on the file of the Additional District Munsif-2,Tiruvannamalai. For Appellant :Mr.J.Ramakrishnanfor M/S.SarvabhumanFor Respondent : Mr.A.Gothamanfor Mr.T.R.RajaramanJ U D G M E N T The above Second Appeal arises against the judgment and decreein A.S.No.73 of 1999 on the file of Additional District Court,Tiruvannamalai reversing the Judgment and Decree in O.S.No.578 of1990 on the file of District Munsif Court, Tiruvannamalai2. The defendant in the suit is the appellant in theabove second appeal. The respondent is the plaintiff in the suit. https://hcservices.ecourts.gov.in/hcservices/

3. The plaintiff filed the suit in O.S.No.578 of 1990 onthe file of District Munsif Court, Tiruvannamalai against thedefendant for declaration and injunction. 4. The brief case of the plaintiff is as follows:- (i) According to The plaintiff, the suit property is thevacant site belonging to one Balakrishnaraju. He conveyed the sameunder a registered sale deed dated 25.7.1967 to the plaintiff'shusband Kannan. After the purchase, the said Kannan was inpossession and enjoyment of the property and he constructed houseand he was residing therein. Subsequently, the said Kannan had leftthe village in question and his whereabouts are not known. Accordingto the plaintiff, who is the wife of the said Kannan, alone isresiding in the suit house. She has also got two sons namely,Ananthurai and Elumalai, who are also not heard of for the pastseveral years. The plaintiff has got a daughter by name, Bala whohas been given in marriage and she is living in her husband'shouse. The patta was transferred in the name of the plaintiff andthe house tax also stood in the name of the plaintiff. (ii) According to the plaintiff, the defendant is thedistant pangali of the plaintiff's husband. According to theplaintiff, the defendant has no interest whatsoever in the suitproperty. According to the plaintiff, the defendant is giving outin the village to the effect that she has got a share in the same andthat she would dispossesses the plaintiff by force. Therefore, theplaintiff filed the suit. 5. The brief case of the defendant is as follows: (i) According to the defendant, the suit property originallybelonged to one Balakrishnaraju and it was not purchased by Kannanfrom out of his own funds. According to the defendant, the propertywas purchased from out of the joint family funds, since theplaintiff's husband Kannan was maintaining the family as his fatherbecame very old and that he was the elder son. The defendant deniedthe contention that Kannan was put in possession and he hadconstructed a house in the suit property. According to thedefendant, the joint family property also being enjoyed by all jointfamily members without making partition. According to the defendant,the plaintiff's husband Kannan is also residing in the suit house.According to the defendant, the plaintiff's two sons Annandurai andElumalai are residing at Bombay. There was no partition among thefamily members regarding the suit house and other properties. (ii) According to the defendant, the plaintiff had a sonby name Gandhi. The plaintiff's husband Kannan was at Bombay.Gandhi was enjoying his father's property jointly with the https://hcservices.ecourts.gov.in/hcservices/ defendant's husband, Chinnapaiyan. Chinnapaiyan and Gandhi mortgagedtheir undivided joint family properties to one Munia Gounder todischarge their family debts. The defendant's husband died tenyears back. According to the defendant, her husband and theplaintiff's husband are brothers and not distant pangalis as statedby the plaintiff. The suit property was purchased by plaintiff'shusband, defendant's husband and their father Arumugam in the name ofplaintiff's husband. Arumugam and his elder son jointly sold theirjoint family house at Su.Valavetti and the suit house wasconstructed from out of the sale consideration of the said house.According to the defendant, the plaintiff's husband had noindependent source of income to purchase the suit property. The suithouse was constructed jointly. Arumugam, Kannan and Chinnapaiyan werethe members of the joint family and they treated and enjoyed thesuit property as joint family property and after the death ofArumugam, his wife and two sons were jointly enjoying the suit houseand other landed property by residing in the suit house and thedefendant prayed for dismissal of the suit. 6. In the reply statement filed by the plaintiff, theplaintiff stated that her son Gandhi died intestate as bacheloreven prior to the filing of the suit. She further stated that thealleged mortgage deed 1.6.1982 in favour of Munia Gounder is totallyfalse. The plaintiff reiterated that the suit property is theseparate and self acquired property of the plaintiff's husband Kannanand neither the defendant nor her children have got any right overthe suit property. 7. Before the trial court, the plaintiff examined P.W.1to P.W.3 and marked 7 documents Exs. A1 to A7. On the side of thedefendant, D.W.1 to D.W.3 were examined and 3 documents Exs.B1 toB3 were marked. 8. The trial court, after taking into consideration theoral and documentary evidence of both the parties, found that thesuit property was not purchased by the husband of the plaintiff andit was purchased from the joint family nucleus and ultimatelydismissed the suit. 9. Aggrieved by the judgment and degree of the trial court,the plaintiff filed an appeal in A.S.NO.73 of 1999 on the file ofAdditional District Judge, Tiruvannamalai and the lower appellatecourt after taking into consideration the oral and documentaryevidence of both the parties found that the defendant, who set up acase of the joint family, failed to prove the same and found that thesuit property was not purchased from the joint family nucleus and itwas purchased only by the husband of the plaintiff. Therefore, thelower appellate court set aside the judgment and decree of the lowerappellate court and allowed the appeal. https://hcservices.ecourts.gov.in/hcservices/

10. Aggrieved by the judgment and decree of the courtsbelow, the defendant has filed the above second appeal. 11. Heard Mr.J.Ramakrishnan, learned counsel appearing forthe appellant and Mr.A.Gothaman, learned counsel for the respondents.12. At the time of admission of the above Second Appeal,the following substantial questions of law arose for consideration:- "i) Whether the Lower Appellate Court is correctin law in not drawing the necessary presumptionregarding the sufficiency of the nucleus for hepurchase of the property, the existence of the nucleushas been proved and no other source of income isdisclosed by the plaintiff?"ii) Whether the lower appellate court is correctin law in casting the burden of proof regarding thesource of purchase money on the defendant when thepurchase was made b y the husband of the plaintiff whowas the manager of the joint family and in such asituation and presumption in law is that the propertyis joint family property and the person who claims itas a separate property must prove the same? 13. Learned counsel for the respondents relied on a judgmentreported in 2000(3) MLJ 660 (Kanakaraj v. Sivakozhundu and others).In the said judgment of this court it is held that there is nopresumption in law that the property is a joint family property,unless it is proved by sufficient evidence that the joint familyowned certain properties which yielded sufficient income to purchaseother properties. 14. Learned counsel for the respondents further reliedon a judgment reported in 1993(2) MLJ 41 (S.Chinnayyan and others v.C.Chithambaram and others) in which, it is held that if there is noproof of joint family nucleus or sufficient income from the jointfamily properties to enable purchase of other property, onus of proofis only on the person making such a plea. 15. Learned counsel for the respondents also relied on ajudgment reported in 1978(1) MLJ 56 (Ranganayaki Ammal and othersv. S.R.Srinivasa and others), in which it is held as follows: "... The burden is very heavy on the plaintiff toestablish the existence of joint family nucleus. The merelapse of time will not relieve him from discharging hisobligation. The march and passage of time cannot be takenadvantage of by by the challenging co-parcener and this byitself would not enable him to relieve himself of his legal https://hcservices.ecourts.gov.in/hcservices/ duty to prove the obvious, namely, that the family waspossessed of funds and that there was sufficient jointfamily nucleus from which the further accretions were madeby the member managing the same." 16. Learned counsel for the respondents also relied onanother judgment reported in AIR 2007 SC 1808 (Makhan Singh (d)by LRs. v. Kulwant Singh), it is held as follows: "... The legal principle, therefore, is that there isno presumption of a property being joint family propertyonly on account of existence of a joint Hindu family. Theone who asserts has to prove that the property is a jointfamily property. If, however, the person so assertingproves that there was nucleus with which the join familyproperty could be acquired, there would be presumption ofthe property being joint and he onus would shift on theperson who claims it to be self-acquired property to provethat he purchased the property which his own funds and notout of joint family nucleus that was available."17. On a careful consideration of the materials availableon record and the submissions made by both the learned counsel, itcould be seen that the respondent/plaintiff is claiming title underEx.A1 sale deed in favour of her husband, Kannan dated 25.5.1967.The appellant/defendant raised the defence that the suit property isthe joint family property purchased in the name of Kannan, since heis the elder member of the family and out of the income derived fromthe joint family properties. It is well settled law that theperson, who pleads the property is the joint family property, theinitial burden is upon him to prove the same. It is also admittedthat at the time of purchase under Ex.A1, the said Kannan and hisfather Arumugam were alive. The appellant/ husband/defendant'shusband Chinnapaiyan is the brother of Kannan. Further, thesenior male member of the family namely Arumugam was alive on thedate of the purchase under Ex.A1. The necessity to purchase theproperty in the name of Kannan from the joint family funds was notproved by the appellant/defendant. In the written statement, theappellant/defendant stated that Ex.A1 property was purchased in thename of Kannan by selling another joint family property. But theappellant/defendant did not produce the sale deed to prove the saidcontention. Further there is also no evidence to show that theincome was derived from the joint family properties and were utilisedfor acquisition of the Ex.A1 property and also mere existence ofnucleus alone is not enough and it must be proved that there wassurplus income for the purchase of other properties. In the case onhand, the defendant failed to prove that the property purchased underEx.A1 was purchased from the joint family income. With regard to thepossession, the respondent/plaintiff filed Ex.A2 patta and taxreceipts Exs. A3 to A7. The said documents will prove the https://hcservices.ecourts.gov.in/hcservices/ possession of the respondent/plaintiff. Further as already foundKannan is the owner of the property, possession follows the title.Since the whereabouts of the said Kannan is not known for more thanseven years, he is presumed to civil dead. Hence his legal heirsare entitled for declaration and injunction. The lower appellatecourt has-9 rightly set aside the judgment and decree of the trialcourt and allowed the appeal. 18. Applying the principles laid down in the above referredjudgments, I find no ground much less substantial questions of lawto interfere with the findings of the courts below. The abovesecond appeal is liable to be dismissed. Accordingly, the aboveSecond Appeal is dismissed. However, there will be no order as tocosts.rj Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo 1.The Additional District Judge, Tiruvannamalai 2.The Additional District Munsif-2, Tiruvannamalai. Copy to the Section Officer, V.R. Section, High Court, Madras.1 cc to Mr. T.R. Rajaraman, Advocate Sr.24369.S.A. No.465 of 2000 CK(CO)EU 19.8.2009.