S.Srinivasan v. V.Subramanian & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:23.03.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.1420 of 2007 andM.P.No.1 of 2007S.Srinivasan.. Appellant/Defendantvs1. V.Subramanian2. S.Padma @ Padmavathy.. Respondents/PlaintiffThis second appeal is filed against the decree and judgmentpassed in A.S.No.24 of 2003 on the file of the Subordinate Court,Ponneri dated 29.11.2006 confirming the decree and judgment passed inO.S.1217 of 1997 dated 30.9.2003 on the file of the District Munsifcum Judicial Magistrate Court, Thiruvottiyur.For Appellant : M/s Paul & PaulFor Respondents : Mr.J.R.K.BhavananthamJ U D G M E N TThis second appeal is focussed by the original defendant,animadverting upon the judgement and decree dated 29.11.2006 passedin A.S.No.24 of 2003 by the Subordinate Court, Ponneri, confirmingthe judgement and decree of the trial Court, namely, District Munsifcum Judicial Magistrate Court, Thiruvottiyur, in O.S.No.1217 of 1997.For convenience sake, the parties are referred to hereunder accordingto their litigative status before the trial Court.2. The respondents/plaintiffs filed the suit O.S.No.1217 of 1997seeking the following reliefs:"a) directing the defendant to quit and deliver vacantpossession of 'B' Schedule hut in first floor of 35,Janagiammal Estate (Sannathi Street) Kaladipet, Chennai 19and more particularly described in 'B' Schedule hereunder tothe plaintiffs; https://hcservices.ecourts.gov.in/hcservices/ b) for a consequential permanent injunction to restrainthe defendant from repairing, dismantling 'B' Schedule hutor otherwise putting up any construction either permanent ortemporary in the 1st floor of premises No.35, JanagiammalEstate, Kaladipet, Chennai 19.c) directing him to pay Rs.760/- being the past damagesfrom 22.3.97 to 5.6.97 (76 days) and further direct him topay future damages at Rs.10/- per day from 6.6.97 tilldelivery of vacant possession of 'B' schedule of property,to the plaintiffs. ..."on the ground that the suit property described in the schedule of theplaint was purchased by the first plaintiff in the name of hiswife/second plaintiff and also effected additional construction;while so, the defendant, second son of the plaintiff was asked tooccupy with his family the first floor of the said house, in athatched structure put up by the plaintiffs which is the 'B' scheduleproperty; the plaintiffs are reeling under penurious and impecuniouscircumstances as already their two sons including the defendant wasgiven in marriage and they are duty bound to get their daughter inmarriage for which they want to sell away the 'A' schedule property.However, the defendant despite the licence granted in his favour tooccupy 'A' schedule, was revoked by the plaintiffs, he has not chosento vacate it. Hence the suit.3. Per contra, remonstrating and refuting, gainsaying andimpugning the averments/allegations in the plaint, the defendantfiled the written statement, the gist and kernel of it would be tothe effect that the said 'A' schedule property was purchased from outof the joint family funds; the defendant also contributed along withhis one other brother for raising construction in the suit plot andhe is entitled to 1/4 share in the suit property.4. During enquiry, the plaintiffs examined themselves as P.W.1and P.W.2 and Exs.A1 to A14 were marked. On the side of therespondent, the defendant examined himself as D.W.1 and Ex.B1 wasmarked.5. Ultimately, the trial Court dismissed the suit, as againstwhich the appeal was filed, for nothing but to be dismissed by theFirst Appellate Court, confirming the judgment and decree of thetrial Court. 6. Being disconcerted and aggrieved by the judgments and decreesof both the Courts below, this Second Appeal has been filed onvarious grounds as found set out in the memorandum of appeal and alsosuggesting the following alleged substantial questions of law: https://hcservices.ecourts.gov.in/hcservices/

1. Whether the learned lower appellate judge wasright in law in proceeding as if the onus is on thedefendant to prove that the property was the self-earnedproperty of the plaintiff?2) Whether the lower appellate judge was right in lawin dismissing the appeal even though no documents had beenfiled by the plaintiff to substantiate that the suitproperty including the thatched hut in the occupation ofthe defendant had been purchased/constructed from out ofthe plaintiff's earnings?3) Whether the lower appellate judge was right in lawin rejecting the evidence of D.W.1 to the effect that hehad contributed to the purchase of the property and hadput up the thatched hut towards his own finances eventhough the same had not been controverted in the crossexamination?4) Whether the lower appellate judge is entitled toplace reliance on the tax receipts filed by the plaintiffwhich would not in any way confirm the case of theplaintiff that he had purchased the suit property andconstructed the thatched shed on his own funds?"7. Heard the learned counsel for the appellant. Despiteprinting the names concerned, none appeared for the respondents.8. A plain poring over and perusal of the typed set of papersincluding the judgments and decrees of both the Courts below woulddisplay and demonstrate, evince and expatiate that both the Courtsbelow based on the oral and documentary evidence gave a categoricalfinding that the suit property was purchased by the first plaintifffrom out of his own income in the name of his wife, the secondplaintiff and that the defendant did not contribute any money, eitherfor the purchase of the property or for raising construction thereonand he should be evicted.9. At this juncture, my mind is redolent and reminscent of thefollowing decisions of the Hon'ble Apex Court:(i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL, certain excerpts from its would runthus:-"17. After the amendment a second appeal can be filedonly if a substantial question of law is involved in thecase. The memorandum of appeal must precisely state the https://hcservices.ecourts.gov.in/hcservices/ substantial question of law involved and the High Court isobliged to satisfy itself regarding the existence of such aquestion. If satisfied, the High Court has to formulatethe substantial question of law involved in the case. . . .. . . ."18. . . . . . It has to be kept in mind that theright of appeal is neither a natural nor an inherenth rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. . . . . . 21. . . . . However, it is clear that the legislaturehas chosen not to qualify the scope of "substantialquestion of law" by sufficing the words "of generalimportance" as has been done in many other provisions suchas Section 109 of the Code or Article 133(1)(a) of theConstitution. The substantial question of law on which asecond appeal shall be heard need not necessarily be asubstantial question of law of general importance. InGuran Ditta v. Ram Ditta the phrase "substantial questionof law' as it was employed in the last clause of the thenexisting Section 100 CPC (since omitted by the AmendmentAct, 1973) came up for consideration and their Lordshipsheld that it did not mean a substantial question of generalimportance but a substantial question of law which wasinvolved in the case. In Sir Chunilal case theConstitution Bench expressed agreement with the followingview taken by a Full Bench of the Madras High Court inRimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case,SCR p.557)"When a question of law is fairly arguable, wherethere is room for difference of opinion on it or where theCourt thought it necessary to deal with that question atsome length and discuss alternative views, then thequestion would be a substantial question of law. On theother hand if the question was practically covered by thedecision of the highest court or if the general principlesto be applied in determining the question are well settledand the only question was of applying those principles to https://hcservices.ecourts.gov.in/hcservices/ the particular fact of the case it would not be asubstantial question of law."This Court laid down the following test as proper test, fordetermining whether a question of law raised in the case issubstantial:(Sir Chunilal case, SCR pp.557-58)"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or call for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."23. To be "substantial" a question of law must bedebatable, not previously settled by law of the land or abinding precedent, and must have a material bearing on thedecision of the case, if answered either way, insofar asthe rights of the parties before it are concerned. To be aquestion of law "involving in the case" there must be firsta foundation for it laid in the pleadings and the questionshould emerge from the sustainable findings of fact arrivedat by court of facts and it must be necessary to decidethat question of law for a just and proper decision of thecase. An entirely new point raised for the first timebefore the High Court is not a question involved in thecase unless it goes to the root of the matter. It will,therefore, depend on the facts and circumstance of eachcase whether a question of law his a substantial one andinvolved in the case or not, the paramount overallconsideration being the need for striking a judiciousbalance between the indispensable obligation to do justiceat all stages and impelling necessity of avoidingprolongation in the life of any lis.(See Santosh Hazari v.Purushottam Tiwari).24. . . . (iii) The general rule is that High Court will notinterfere with the concurrent findings of the Courts below.But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have https://hcservices.ecourts.gov.in/hcservices/ ignored material evidence or acted on no evidence; (ii) thecourts have drawn wrong inferences from proved facts byapplying the law erroneously; or (iii) the courts havewrongly cast the burden of proof. When we refer to"decision based on no evidence", it not only refers tocases where there is a total dearth of evidence, but alsorefers to any case, where the evidence, taken as a whole,is not reasonably capable of supporting the finding."(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER, an excerpt from it would run thus- 9. It has been noted time and again that withoutinsisting for the statement of such a substantial questionof law in the memorandum of appeal and formulating the sameat the time of admission, the High Courts have been issuingnotices and generally deciding the second appeals withoutadhering to the procedure prescribed under Section 100 ofthe Code. It has further been found in a number of casesthat no efforts are made to distinguish between a questionof law and a substantial question of law. In exercise ofthe powers under this Section in several cases, thefindings of fact of the first appellate Court are found tohave been disturbed. It has to be kept in mind that theright of appeal is neither a natural nor an inherent rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this Section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. This Court in Sir Chunilalv. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962SC 1314) held that:"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or calls for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining the https://hcservices.ecourts.gov.in/hcservices/ question are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."It is therefore crystal clear that unless there is substantialquestion of law, the Second Appeal cannot be entertained. But in thiscase, the proposed Substantial question of law Nos.1 and 3 would beto the effect that both the Courts below have not understood theconcept onus of proof but simply decided the lis. 10. The gist and kernel of the contention of the defendant isthat the suit property is the joint family property in view of thefact that it was purchased from out of the joint family income andthat the defendant also along with his brother contributed forconstruction of superstructure. At this context, I call up andrecollect the following decisions:(i) AIR 1954 SC 379 (Srinivas Krishnarao Kango vs. Narayan DevjiKango and others). An excerpt from it would run thus:"8. Proof of the existence of a joint family does notlead to the presumption that property held by any member ofthe family is joint, and the burden rests upon anyoneasserting that any item of property was joint to establishthe fact. But where it is established that the familypossessed some joint property which from its nature andrelative value may have formed the nucleus from which theproperty in question may have been acquired, the burdenshifts to the party alleging self-acquisition to establishaffirmatively that the property was acquired without the aidof the joint family property.10. Whether the evidence adduced by the plaintiff wassufficient to shift the burden which initially rested on himof establishing that there was adequate nucleus out of whichthe acquisitions could have been made is one of factdepending on the nature and the extent of the nucleus. Theimportant thing to consider is the income which the nucleusyields. A building in the occupation of the members of afamily and yielding no income could not be a nucleus out ofwhich acquisitions could be made, even though it might be ofconsiderable value. On the other hand, a running business inwhich the capital invested is comparatively small mightconceivably produce substantial income, which may well formthe foundation of the subsequent acquisitions. These are notabstract questions of law, but questions of fact to bedetermined on the evidence in the case. https://hcservices.ecourts.gov.in/hcservices/ Where the finding of the Courts is that the incomefrom the ancestral lands was not sufficient even for themaintenance of the members, and the houses in dispute aresubstantial, burden is on the plaintiff who alleges thehouses to have been acquired out of joint family funds, toestablish it.Held that if the contention that on proof of theexistence of the Watan lands the burden had shifted on tothe defendants to prove that the acquisitions were madewithout the aid of joint family funds,that burden had beendischarged. Likewise, it was held that since the ancestral Watanlands are intact, and were available for partition, and thesmall income derived from them must have been utilised forthe maintenance of the members of the family, whether itwere held that the plaintiff had failed to discharge theburden which lay on him of establishing sufficient nucleus,or that the defendants had discharged the burden ofestablishing that the acquisitions were made without the aidof joint family funds, the result was the same." (ii) AIR 1960 SC 335 (Rukhmabai vs. Lala Laxminarayan andothers) and an excerpt from it would run thus:"5. There is a presumption in Hindu law that afamily is joint. There can be a division in status amongthe members of a joint Hindu family by refinement ofshares which is technically called “division in status”,or an actual division among them by allotment of specificproperty to each one of them which is described as“division by metes and bounds”. A member need not receiveany share in the joint estate but may renounce hisinterest therein, his renunciation merely extinguisheshis interest in the estate but does not affect the statusof the remaining members vis-a-vis the family property. Adivision in status can be effected by an unambiguousdeclaration to become divided from the others and thatintention can be expressed by any process. Thoughprimafacie a document clearly expressing the intention todivide brings about a division in status, it is open to aparty to prove that the said document was a sham or anominal one not intended to be acted upon but wasconceived and executed for an ulterior purpose. But thereis no presumption that any property, whether movable orimmovable, held by a member of a joint Hindu family, is https://hcservices.ecourts.gov.in/hcservices/ joint family property. The burden lies upon the personwho asserts that a particular property is joint familyproperty to establish that fact. But if he proves thatthere was sufficient joint family nucleus from and out ofwhich the said property could have been acquired, theburden shifts to the member of the family setting up theclaim that it is his personal property to establish thatthe said property has been acquired without anyassistance from the joint family property."11. A bare perusal of those decisions would unambiguouslyhighlight and spotlight the fact that the onus of proof is on theperson who pleads that even though the document of title stand in thename of a co-sharer, nonetheless, it is a joint family property. Inthis case, the defendant by examining himself as D.W.1 reiteratedwhat were set out in the written statement and it remains only hisipse dixit. Absolutely, there is no iota or shred, shard orminiscule, molecular or scintilla of evidence to demonstrate thatthere was a joint family nucleus. It is a trite proposition of lawthat the defendant in order to substantiate his theory should havepointed out that the first plaintiff was in possession of the jointfamily nucleus and from out of the income generated from such jointfamily property, the suit property was purchased in the name of hiswife, the second plaintiff. As such, the very contention of thedefendant itself is as vague as vagueness could be and by no stretchof imagination his contention should be upheld in the wake of thosedecisions set out supra. Both the Courts below correctly au faitwith law and au courant with facts decided the issue warranting nointerference by this Court. A fortiori, the proposed substantialquestions of law Nos.1 and 3 does not arise at all.12. Regarding the proposed substantial question of law No.2,both the Courts below taking into consideration the available recordsrendered the verdict regarding the ownership of the property. Thedefendant being the son of the plaintiffs on whom the burden of prooflies to prove that it is a joint family property, miserably failed todo so. As such, the proposed substantial question of law No.2 doesnot arise at all. 13. The proposed substantial question of law No.4 is relating totax receipts. On the side of the plaintiffs, by way of buttressingand fortifying their claim, marked the tax receipts as Ex.A8 seriesas well as Ex.A9 and in no way that could be found fault with. Infact, Exs.A8 and A9 bespeak that the defendant is not the owner ofthe suit property and it is the plaintiffs who are the owners of itand it is in concinnity and consonance with their plea that thedefendant is having no right and the second plaintiff is the ownerof the suit property. As such, the proposed substantial question oflaw No.3 does not arise. https://hcservices.ecourts.gov.in/hcservices/ As such, I could see no merit in this Second Appeal and it isdismissed. No costs. Consequently, connected miscellaneous petitionis closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargmsTo1. The Subordinate Court, Ponneri.2. The District Munsif cum Judicial Magistrate Court, Thiruvottiyur.3. The Section Officer, V.R.Section, High Court, Madras.1 cc To M/s.Paul & Paul, Advocate, SR.8981.S.A.No.1420 of 2007 GV(CO)RVL 11.05.2009