Dismissed

D.Ramayya & Another v. N. Lakshmayya

Madras HC13 Dec 2022AS/417/1998

Case brief

AI extract

What is this about?

The High Court dismissed appeals against a Subordinate Judge's decision in a partition suit involving brothers. The court held that Schedule 'B' properties were joint family assets purchased from joint family income (goat rearing), while Schedule 'C' properties were the separate asset of the son.

What did the court decide?

The appeals, cross objection, and appeal suit were dismissed; the lower court's judgment and decree were confirmed.

D.Ramayya & Another Vs N. Lakshmayya — Partition | Madras HC (2022)

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A.S.No.417 of 1998

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Judgment Reserved on : 29.11.2022

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Judgment Delivered on : 13.12.2022

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CORAM :

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THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

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A.S.No.417 of 1998

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and

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Cross Objection No.7 of 2016 and T.R.A.S.No.318 of 2013

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In A.S.No.417 of 1998 :

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1.S.Ramayya (Deceased)

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2.R.Ellappa

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3.Rajappa

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4.R.Venkatramanappa

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5.Narayanamma

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6.Pavithra

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7.Murali

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... Appellant

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[ 2^nd Appellant recorded as Legal heirs of the deceased 1^st Appellant and Appellants 3 to 7 brought on record as LRs of the deceased 1^st appellant Vide Order of this Court dated 24.01.2018 made in CMP.No.1201 of 2018 in A.S.No.417 of 1998]

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Versus

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1.N.Lakshmayya (Deceased)

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2.N.Narayanappa (Deceased)

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3.Nanjappa

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4.Krishnappa

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5.Venkatesh

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https://www.mhc.tn.gov.in/judis

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A.S.No.417 of 1998

6.Lakshmamma

7.Munichinnamma

8.Rathnamma

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... Respondents

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[R3 to R5 brought on record as LRs of the deceased R1, viz., N.Lakshmayya and R6 to R8 brought on record as LRs of the deceased R2, viz., N.Narayanappa, Vide order of this Court dated 21.06.2010 made in CMP.Nos.628 to 630 of 2010. ]

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In Cross Objection No.7 of 2016:

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N.Lakshayya (Died) Narayanappa (Died)

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1.Nanjappa

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2.Krishnappa

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3.Venkatesh

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4.Lakshmamma

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5.Munichinnamma

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6.Rathnamma

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… Cross Appellants

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Versus

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1.S.Ramayya (Died)

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2.R.Ellappa

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3.Rajappa

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4.R.Venkatramanappa

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5.Narayanamma

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6.Pavithra

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7.Murali

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… Respondents

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[R1, Died, R3 to R7, are already amended, Vide Order of this Court dated 29.11.2022, made in CMP.Nos.20768 & 20304 of 2022 in Cross Objection No.7 of 2016.]

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[R1, Died, R3 to R7 are brought on record as LRs., of the deceased R1, Viz., S.Ramayya, Vide order of this Court dated 18.11.2022, in A.S.No.417 of 1998 and T.R.A.S.No.318 of 2013 and Cross Objection No.7 of 2016 and CMP.No.1933 of 2016. ]

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https://www.mhc.tn.gov.in/judis

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A.S.No.417 of 1998

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In T.R.A.S.No.318 of 2013 :

N.Ramayya

… Appellant

Versus

1.N.Latchumayya 2.L.Nanjappa 3.L.Krishnappa 4.L.Venkatesh 5.N.Narayanappa

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… Respondents

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Prayer in A.S.No.417 of 1998 : Appeal Suit filed under Section 96 of the Code of Civil Procedure, against the Judgment and Decree dated 04.08.1997 made in O.S.No.141 of 1996, passed by the learned Subordinate Judge of Hosur.

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Prayer in Cross Objection No.7 of 2016 : Cross Objection has been preferred against the judgment and decree, dated 04.08.1997 made in O.S.No.141 of 1996 passed by the learned Subordinate Judge of Hosur.

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Prayer in T.R.A.S.No.417 of 1998 : Appeal Suit filed under Order XLI Rule 1 read with Section 91 of the Code of Civil Procedure, to allow the appeal, set aside the Judgment and Decree of the Lower Court and Decree the suit O.S.No.471 of 1996, on the file of the Subordinate Court, Hosur.

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In A.S.No.417 of 1998

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For Appellants : Mr.V.Ayyapparaja For Respondents : Mr.P.Mani

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In Cross Objection No.7 of 2016

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A.S.No.417 of 1998

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For Cross-objectors : Mr.P.Mani

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For Respondents : Mr.V.Ayyapparaja

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In T.R.A.S.No.318 of 2013

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For Appellants : Mr.V.Ayyapparaja For Respondents : Mr.P.Mani

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COMMON JUDGMENT

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A. The Appeals:

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These Appeal Suits and Cross Objection arise out of the common judgment and decree, dated 04.08.1997, passed by the learned Subordinate Judge, Hosur in O.S.No.471 of 1996 and in O.S.No.141 of 1996 and as such, are taken up for disposal together by this Common Judgment.

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B. The brief facts leading to the litigation are :

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2. (i) One Ramayya , Lakshmanayya and Narayanappa were

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brothers. Their parents died at a very young age. Ramayya , the eldest in the

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family was the kartha of the family. It is admitted that suit ‘A’ Schedule

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properties are their ancestral properties. ‘B’Schedule properties are

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purchased in the name of Ramayya , the Kartha . ‘C’Schedule properties are https://www.mhc.tn.gov.in/judis _____________ Page 4 of 18_

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A.S.No.417 of 1998 purchased in the name of his son, Ellappa . The siblings, lived truly as a Joint Hindu Undivided Family, for a long time and finally, a dispute arose in the year 1991 – 1992, when properties were purchased in the name of

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Ellappa , son of Ramayya , the Kartha, when they were all aged more than 70 years.

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(ii) The three brothers agreed that the partition be effected by appointing Panchayatars and a Muchalika was also written on 16.06.1992 to leave the disputes to their decision.

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(iii) It is at this stage, the elder brother Ramayya , the Kartha of the family, filed O.S.No.471 of 1996 (Originally O.S.No.326 of 1992) by stating that 'A' Schedule properties alone are the joint family properties and he, as a kartha , is managing the same and his brothers should not interfere in his managerial rights and other properties, namely, 'B' Schedule properties are his self-acquired properties by running the business of selling goats and the brothers have no right in the same and hence claimed for a permanent injunction. In the said suit, while the younger brothers filed a written statement while admitting the position as to 'A' Schedule property, it

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is claimed by them that other properties are also joint family properties having been purchased out of the joint family nucleus.

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(iv) Thereafter, the younger brothers Lakshmanayya and https://www.mhc.tn.gov.in/judis _____________ Page 5 of 18_

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A.S.No.417 of 1998 Narayanappa filed a Suit in O.S.No.141 of 1996 (originally O.S.No.226 of

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for partition and separate possession of 2/3^rd share in the 'A' Schedule properties which are ancestral properties, 'B' Schedule properties which are properties standing in the name of Ramayya , the Kartha , purchased out of the joint family nucleus and enjoyed in common, 'C' Schedule properties which are standing in the name of the son of the Kartha , R.Ellappa , purchased out of the joint family nucleus and enjoyed in common.

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(v) The said suit is resisted by the elder brother Ramayya and his son Ellappa by stating that 'B' and 'C' Schedule properties are their selfacquired properties purchased from the income out of the business of selling goats by the said Ramayya and buying and selling bullocks by the said Ellappa .

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(vi) Thus, it can be seen that the narrow compass of the dispute to be determined between the parties is as to whether 'B' and 'C' Schedule properties are purchased out of the joint family nucleus and hence will be available for partition?

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C. The Issues and the Trial:

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A.S.No.417 of 1998 3. The Trial Court framed six issues each in both suits essentially

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revolving around the above question and were taken up together for joint trial.

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3.1 The Youngest brother Naryanappa was examined as P.W1, and one Sanjevappa , Mottappa and Muniappa were examined as P.Ws.2 to 4 and Exs.A-1 to A-4 were marked. The Elder brother Ramayya was examined as D.W.1 and Ellappa was examined as D.W.2. One Munivenkatappa and Muniamma were examined as D.Ws.3 and 4. Exs.B1 to B-15 were marked on their behalf.

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D. The Findings of the Trial Court :

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4. Thereafter, the Trial Court proceeded to consider the case of the parties and held that the case of the elder brother that immediately after the marriage, his younger brothers got separated from the family and went to their in-law's house, was not believable, since the same was not part of the pleading and secondly, his own averments that he only performed the marriages of their children by bearing the expenses contradicted the stand.

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The Trial Court found that when all the three brothers toiled in the fields

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A.S.No.417 of 1998 and worked jointly, the avocation of rearing of goats being part of the same could not be said to be done only by the elder brother alone and therefore, when it is accepted that the 'B' Schedule properties are purchased only out of the income from selling the goats, held that 'B' Schedule property is also purchased out of the income of the joint family and hence will be available for partition. As for as 'C' Schedule property is concerned, since it is in the name of Ellappa , the son of Ramayya, the Kartha , the younger brothers namely, Lakshmanayya and Narayanappa failed to prove that the same was also out of the joint family income as it is contended that the said Ellappa was doing separate business. Therefore, it was held that 'C' Schedule property is his separate property and is not available for partition.

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E. The Submissions:

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5. Mr.Ayyaparaja , the learned Counsel appearing for the appellant / the elder brother Ramayya and his son , taking this Court through the oral testimony of the parties, would submit that P.W.1, in his cross-examination, has clearly admitted that the ancestral properties did not yield proper income as there were no irrigation facilities and even the piece of Nanja

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A.S.No.417 of 1998 land was at the fag end of Ayacut and rarely received water from the lake.

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He categorically admitted that their family is a large family and the income was not even enough to maintain the family. It is their pleadings that even Ramayya was not in the business of selling goats and they did not expressly plead that they were also working along with Ramayya in the said business. Therefore, the belated claim in the cross-examination that they were also rearing the goats cannot be accepted. He would submit that while the Trial Court appreciated the legal position correctly that the onus would shift on the kartha only if the younger brothers, who claimed that the properties are joint family properties discharged their initial burden of proving that joint family nucleus was available, erred on facts. When P.W.1 has categorically admitted that there was no such nucleus available, the Trial Court ought not to have shifted the onus on the Kartha of the family to prove his individual income. Hence, the decision of the Trial Court is liable to be set aside inasmuch as it is concerned with 'B' Schedule properties.

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5.1 Mr.P.Mani , the learned Counsel appearing for the younger

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brothers/Cross objectors would submit that it is not a case of buying and

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selling goats. D.W.1 himself has admitted that it is rearing and selling https://www.mhc.tn.gov.in/judis _____________ Page 9 of 18_

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A.S.No.417 of 1998 goats. As such, it is part of the agricultural activities and when all the three brothers remained as a joint family and worked together over a period of time, the extent of the 'B' Schedule property was purchased in the name of the elder brother, being kartha . The very action of the brothers in seeking the help of the panchayatdhars would prove that originally, the elder brother was not denying partition in respect of 'B' Schedule properties. As a matter of fact, the son of the kartha namely Ellappa also did not have any independent avocation and only from the joint family income, the properties in 'C' Schedule property purchased. Only upon knowing the fact that the sale deed was not in the name of kartha but in the name of his son, the dispute arose between the brothers and as such, the Cross Objection should be allowed and 'C' Schedule properties should also be partitioned.

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5.2 In support of his contentions, the learned Counsel relied upon a judgment of this Court in Malla Naicker @ Singari & Ors. Vs. Jeeva(minor) & Ors.¹ , more specifically relying on Paragraph Nos.17 to 22, to contend that the properties purchased by the kartha will be presumed to be ancestral properties unless proved otherwise by the kartha . The learned Counsel relied upon the judgment of the Hon'ble Supreme

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1 2012 (1) CTC 128

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A.S.No.417 of 1998 Court of India in Bhagwat Sharan Vs. Purushottam and Ors.² , more specifically relying Paragraph Nos.11 and 12, for the very same proposition. The learned Counsel also relied upon a judgment, dated 26.11.2013 of High Court of Punjab and Haryana, in Mukand Singh Vs. Harchand Singh, (R.S.A.No.2464 of 1986), more specifically on paragraph No.6 of the judgment again for the same proposition.

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F. The Point for consideration :

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6. After considering the material evidence on record and submissions

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made by the learned Counsel on either side, the point which arises for consideration is :

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(i) Whether Schedule 'B' and 'C' properties are to be held as joint family properties or not?

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G. On the Point :

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6.1 On a perusal of the documentary evidence on record, in all the sale deeds, by which, 'B' and 'C' Schedule properties were purchased vide

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Exs.A-2 and A-3 and Exs.B-1 , B-6 , B-8 , it is simply mentioned that the

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sale consideration is received and the properties are conveyed and do not

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2 (2020) 6 SCC 387

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A.S.No.417 of 1998 have any recitals as to the nature of income. Therefore, the matter has to be decided only on the oral testimony of the witnesses. A cumulative reading of the pleadings and evidence on behalf of the younger brothers, it would be clear that it is their case that all of them toiled together in 'A' Schedule property. Even though it is their pleading that the ancestral property yielded considerable income which also formed the nucleus to purchase the other properties, in the cross-examination, P.W.1 accepted that there was no great income from the same and whatever they got was not even enough to meet both ends of the family. However, they took on lease and cultivated other properties also which earned considerable income. They denied in their written statement that the elder brother was in the business of selling goats. As a matter of fact, the denial is complete and total and not qualified by saying that they were actually rearing goats. In the cross-examination, P.W.1 admits that also the income was derived from selling of goats and that they were all together in the same.

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6.2 Coming to the case of the elder brother, even though his pleading is that as if he was in the business of buying and selling goats, in the crossexamination, he admitted that it was rearing goats and selling the same. Similarly, he also admits that he performed the marriages of the children of https://www.mhc.tn.gov.in/judis _____________ Page 12 of 18_

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A.S.No.417 of 1998 his younger brothers. The oral evidence of the other witnesses, deposed on

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behalf of both sides, also hang in a thin balance. Under these circumstances, the ratio laid down in the above three judgments cited supra comes to the aid of the younger brothers in as much as it would be on the kartha to lead such positive evidence to prove his separate income, which he has failed to establish.

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6.3 It is admitted by the said Ramayya , the elder brother that the

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income for purchase of the 'B' Schedule properties was from and out of the rearing and selling of goats. Even the properties are bought adjacent to the joint family properties and the nature of the properties are a grazing tract so as to facilitate rearing of goats. When the three brothers were together in the avocation of the agriculture, it is hard to believe that one brother alone was indulging in the activity to the exclusion of the others. There was no any conduct on the part of the Kartha , to have established so, all along.

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6.4 Even legally speaking, as per P Ramanatha Aiyar’s Advanced Law Lexicon (5^th Edition, Vol. 1, 2017), 210 'Agriculture' is defined broadly as the science or art of cultivating soil, harvesting crops, and

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A.S.No.417 of 1998 raising, rearing, feeding, and management of livestock. In Tamil Nadu

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Patta Pass Book Act, 1983, Section 2(1) states that agriculture includes livestock breeding and the use of land for grazing. In The Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987, Section 2(2) defines agriculture to include animal husbandry (including breeding of livestock). In The Tamil Nadu Town And Country Planning Act, 1971, Section 2(1), defined agriculture to include livestock-breeding and the use of land as grazing land. In Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961, Section 2(1) defined agriculture to include livestock breeding and the use of land by an agriculturist for grazing. In Tamil Nadu District Municipalities (Amendment) Act, 1992, the explanation to Section 217B clarifies that the term agriculture includes animal husbandry (including breeding of livestock).

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6.5 The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act), in Section 3(d)(ii) the definition of agricultural land included land used for the purpose of breeding of livestock and for grazing cattle. The Minimum

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Wages Act, 1948, under Part II of the Schedule, it was said that https://www.mhc.tn.gov.in/judis _____________ Page 14 of 18_

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A.S.No.417 of 1998 employment in agriculture included the raising of livestock. A state amendment by Tamil Nadu states that employment in agriculture includes the up-keep of livestock. The Constitution Bench of the Hon'ble Supreme Court of India in S.P. Watel -Vs - State of U P⁴ also advocates wide possible meanings for the term agriculture. Thus, legally and factually, the avocations are inseparable and intertwined.

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6.6 Apart from the same, the conduct of the elder brother simultaneously filing the suit for a permanent injunction and also signing the Ex.A-4 , Muchalika , is also to be taken into account. The attendant circumstances, that the brothers did not partition the properties and the dispute arose coinciding the purchase of 'C' Schedule properties in the name of Ellappa also is to be taken into account. Thus, it has to be concluded that the Elder brother Ramayya , being the Kartha of the family, failed to establish that the 'B' Schedule properties are separate properties and as such, 'B' Schedule properties are joint family properties and will be available for partition.

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6.7 For the same ratio laid down in the above judgments that it was

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4 (1973) 2 SCC 238, para 20

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A.S.No.417 of 1998 for the younger brothers to have proven that the 'C' Schedule property is purchased out of the joint family nucleus and when the evidence falls short of holding so, the benefit of the property standing in the name of Ellappa had to be given only to him and as such 'C' Schedule properties will not be available for partition.

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H. Answers to the issues :

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7. In view of my above findings, I concur with the ultimate

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conclusion of the Trial Court in respect of all the issues framed and accordingly, the judgment and decree of the Trial Court does not require any interference.

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I. In the Result:

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8. In the result,

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(i) The Appeal Suit in AS. No. 417 of 1998 and Cross Objection

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No. 7 of 2016 and TR A.S.No. 318 of 2013 shall stand dismissed;

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(ii) The common judgment and decree, dated 04.08.1997, passed by

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learned Subordinate Judge, Hosur in O.S.Nos.471 of 1996 and 141 of

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1996 is confirmed;

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(iii) In view of the judgment of the Honourable Supreme Court of _____________ Page 16 of 18_

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India in

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A.S.No.417 of 1998 India in Kattukandi Edathil Krishnan Vs. Kattukandi Edathil Valsan⁵ the

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next date of the final hearing is fixed on 22.12.2022. The parties shall appear before the Trial Court on the said day and there will be no further service of notice. If already a final decree application is pending, the same shall be continued. Even if there is no such proceeding, the Trial Court shall take up the issue of passing a final decree without waiting for application by the parties and conclude the proceedings as early as possible;

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(iv) There will be no orders as to cost in the appeal suits and cross objection;

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(v) Connected miscellaneous petitions shall stand closed.

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(vi) The suit was filed on 23.11.1992. It has already taken about 30

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years upto the stage of preliminary decree. The same has to be borne in

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mind in all subsequent proceedings in this matter and has to be treated as

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emergent .