V.Ravichandran Vs Velappa Gounder @ Velappan

PRAYER :- First Appeal has been filed under Order 41 Rule 1 r/w Section 96 of CPC against the Judgement and Decree dated 31.08.2016 passed in O.S.No.51 of 2013 on the file of the Additional District Court, Namakkal.

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For Appellant ... Mr.N.Manokaran For Respondent ... Died No.1 For Respondent ... Mr.S.Senthil No.2

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JUDGMENT

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Aggrieved over the Judgement and Decree dated 31.08.2016 passed in

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O.S.No.51 of 2013 on the file of the Additional District Court, Namakkal, the

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plaintiff has preferred the first appeal.

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2.For the sake of convenience, the parties are referred to as per their

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rankings in the trial Court.

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3.Suit for partition and separate possession.

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4.The plaintiff in O.S.No.51 of 2013 on the file of the Additional

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District Court, Namakkal, is the appellant herein.

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5.The plaintiff's case is as follows:

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The plaintiff and the second defendant are the sons of the first defendant Vellappa Gounder @ Vellappan. The first defendant Vellappa Gounder @ Vellappan, in a partition with his brother held on 26.08.1966, got

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“A” schedule property. The plaintiff and the second defendant are the legal heirs of the first defendant Vellappa Gounder @ Vellappan. From the income of the abovesaid ancestral property, the plaint schedule property and other properties were purchased in the name of the first defendant Vellappa Gounder @ Vellappan, specifically, the properties were purchased in his name on 20.02.1969 and 21.04.1998. These properties were jointly enjoyed

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by all persons. The second defendant went to London in the year 2003. The https://www.mhc.tn.gov.in/judis 2/16

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expenses for the travel were met by the plaintiff by obtaining a loan from the third person. The plaintiff himself worked at Bakrin from 1990 to 1998. To clear the family debts, the properties obtained by the first defendant Vellappa Gounder @ Vellappan by way of partition dated 26.08.1966 (A schedule property) and the properties purchased in the name of the first defendant on 20.02.1969 and 21.04.1998 were sold to one Subramaniam by way of sale deed dated 02.09.2010. From the sale proceeds, family debts were cleared. In the plaint schedule properties, the plaintiff and the defendants 1 & 2 are equally entitled for 1/3^rd share. The second defendant's marriage was held on 27.03.2013 after that there is a difference of opinion between them.

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5.1.On perusing the encumbrance certificate with regard to the properties, the plaintiff came to know that the first defendant settled a portion of property in favour of the second defendant without his knowledge on 21.04.2005. The settlement deed is not valid. Now, the plaint schedule property is in common enjoyment of all. Therefore, the plaintiff demanded partition. Since the defendants have not agreed for partition, the plaintiff filed the suit for partition claiming 1/3rd share in the plaint schedule properties.

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6.The defendants contested the suit and filed a common written

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statement. In the written statement, specifically, they denied the plaint allegation and contended that in the partition held on 26.08.1966, the first defendant got “A” schedule properties, from which, there was no income. The first defendant went to Bakrin on 27.02.1979 and he worked there till 02.01.1990 from the income earned by the first defendant, he purchased the plaint schedule property and other properties on 28.11.1984 and 21.04.1998. It is the self acquired property not joint family property and not purchased from the income of the ancestral property obtained by way of partition. In the sale deed executed to Subramaniyam on 02.09.2010 and 29.11.2010, it was specifically mentioned that the properties were self acquired properties of the first defendant, in which, the plaintiff also signed the document. Hence, the plaintiff has no right over the plaint schedule properties and is not entitled for partition and pleaded to dismiss the suit with costs as it is not maintainable.

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7.The trial Court, upon the above pleadings, framed the following issues.

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1/ jhthtpy; nfhhpa[s;sgo thjpf;F

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jhth brhj;jpy; 1-3 ghfk; fpilf;ff;Toajh>

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2/ jhth brhj;J g{h;tPf brhj;jpy; ,Ue;J te;j tUkhdj;ij bfhz;L th';fg;gl;lJ vd;gJ cz;ikah>

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3/ jhth brhj;J thjp kw;Wk; 1. 2 gpujpthjpfSf;F ghj;jpag;gl;l g{h;tPf

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brhj;jhFk; vd;gJ rhpah>

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4/ jhthtpy; nfhhpa[s;sgo thjpf;F jhth brhj;jpy; 1-3 ghfj;jpw;F Kjy; epiy jPh;g;ghiz fpilf;ff;Toajh>

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5/ jhthtpy; nfhhpa[s;sgo thjpf;F epue;ju cWj;Jf; fl;lis ghpfhuk; fpilf;ff;Toajh>

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6/ 1k; gpujpthjpf;F ghj;jpag;gl;l 20/09/1969. 21/4/1998. 28/11/1984 njjpfspl;l fpua Mtz';fspy; fz;l brhj;Jf;fs; 1k; gpujpthjpapd; Rahh;$pj brhj;Jf;fs; vd;gJ rhpah>

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7/ jhthtpy; thjpf;F fpilf;ff;Toa ntW ghpfhuk; vd;d>

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8.Before the trial Court, the plaintiff examined himself as PW1 and

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examined other two witnesses as Ex.PW2 & Ex.PW3 and also filed 8 documents as Exs.A1 to A8. The second defendant examined himself as DW1 and examined another witness as DW2 and no documents were marked. Further 3 documents filed as X1 to X3.

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9.The trial Court, upon considering the oral and documentary evidence on record, found that the plaintiff is not entitled for partition and not entitled for preliminary decree and hence, dismissed the suit without costs. Aggrieved by this, the plaintiff filed this appeal before this Court.

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10.The points for consideration before this Court are,

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i). Whether the plaintiff is entitled for 1/3^rd share in the plaint schedule properties and entitled for preliminary decree?

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ii). Whether the suit property was purchased from the income of joint family properties as alleged by the plaintiff?

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iii). Whether the suit property can be persumed to be joint family property?

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iv). To what relief the plaintiff is entitled to?

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11.The learned counsel for the appellant submitted that the judgment

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and decree passed by the trial Court is against law, weight of evidence and all probabilities of the case. Further contended that the trial court overlooked the fact that the existence of the ancestral property is proved by document Ex.A1. Further, the trial Court overlooked the fact that the first defendant is the Kartha of the joint family and he has not let in any evidence to show that he had independent income to purchase the properties under the sale deeds dated 20.02.1969 and 21.04.1998 and other properties. Further contended that once the existence of the joint family property is proved, then, the onus shifts on the first defendant to prove that the property acquired was his selfacquisition. The trial Court overlooked the law laid down by this Court in Malla Naicker case (2012 (1) CTC 128) . The first defendant failed to prove that he had independent income to purchase the property in his name and he has not examined himself except making such a version in the written statement. The burden is on Kartha, the first defendant to prove that the properties are his separate properties and not purchased out of the income of the joint family properties. He failed to prove this. The trial Court overlooked

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the fact dismissed the suit for partition against law and thus, pleaded to set

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aside the judgment and decree of the trial Court and to allow the appeal.

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12.The learned counsel for the second respondent supported the

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judgment and decree of the trial Court and contented that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The plaintiff has to prove that the property is a joint family property. He asserts that the properties have been purchased from the income of the joint family property, but he failed to discharge his initial burden. The trial Court likely rejected the plaintiff's claim and dismissed the suit. There is no merit in the appeal and no ground for interference and thus, pleaded to dismiss the appeal as it has no merit.

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13.The respondent's counsel, to support of his argument, relied upon

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the following judgments;

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(2003) 10 Supreme Court Cases 310

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(D.S.Lakshmaiah and another Vs. L.Balasubramanyam and another)

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2.(2020) 6 Supreme Court Cases 387 (Bhagwat Sharan (Dead Through Legal Representatives) Vs. Purushottam and others.

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3. 2014 SCC OnLine Mad 153 (Thangamani

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Vs.Ganesan)

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14.I have considered the matter in the light of the submissions made on

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either side and perused the materials available on record.

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15.On perusal of the records, the fact reveals that the plaintiff and the second defendant are sons of the first defendant Vellappa Gounder @ Vellappan. In the partition between the first defendant Vellappan Gounder @ Vellappan with his brother, he got “A” schedule property by way of the partition deed dated 26.08.1966. It is evidenced by Ex.A1. These facts are not disputed. The plaint schedule property is purchased in the name of the first defendant. It was pleaded by the plaintiff in para 4 of the plaint. But no document has been evidenced by both the parties. This fact is also not disputed by the parties.

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According to the plaintiff, the plaint schedule property has been purchased from the income of the ancestral property i.e. “A” schedule property (partition held on 26.08.1966). On perusal of the partition deed dated 26.08.1966 Ex.A1, admittedly, “A” schedule property was allotted to

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the first defendant to an extent of 57 cents. This is also admitted by the

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parties.

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17.In this case, the plaintiff asserts that the plaint schedule property had

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been purchased from the income of the joint family properties contained in Ex.A1 partition deed.

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18.On perusal of the evidence on record, no evidence had been let by the plaintiff to prove that the property contained in the partition deed allotted to the first defendant had income. Further, no evidence had been let to prove that the plaint schedule property was acquired from the income of the ancestral property obtained by the first defendant by way of partition dated 26.08.1966 Ex.A1.

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19.According to the first defendant, the property had been purchased

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from his separate income. At the same time, the first defendant had not let any evidence to show that he acquired the plaint schedule property by way of his separate income. In the absence of evidence either way, the question to be determined in the present case is, as to who is required to prove the nature of the property.

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20.The law is well settled that “ there is no presumption of a property being joint family property only on account of existence of a joint Hindu

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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 shift 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.” The Hon'ble Supreme Court in the case of D.S.Lakshmaiah and another Vs. L.Balasubramanyam and another reported in (2003) 10 Supreme Court Cases 310 settled the abovesaid legal position.

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21.Our High Court in Malla Naicker @ Singari and two others Vs. Jeeva (minor) and two others reported in 2012 (1) CTC 128, extracted the legal position by relying upon Mulla Hindu Law. It is reproduced for easy understanding:

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The presumption regarding the coparcenary property vis-à-vis separate property and the person on whom the burden lies has been succinctly stated in Mulla Hindu Law,

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17th Edition, Volume 1, Page 344 in paragraph No 233 as follows:

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“(1) Presumption that a joint family continues joint -

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(2) There is no presumption that a joint family possesses joint property-

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"To render the property joint, the Plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. It can be brought to the cognizance of a Court in the same way, as any other fact, namely, by evidence.

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Where it is established or admitted that the family possessed some joint property which, from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without the aid of the joint family. However, no such presumption would arise if the nucleus is

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such that with its held the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its held the property claimed to be joint could have been acquired."

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The wide proposition that once the ancestral nucleus is proved or admitted the onus on the member to prove that the property acquired was his self-acquisition cannot be accepted as correct. The existence of some nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What is to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made? Alternatively, this may be shown from the nature and relative value of the nucleus itself. This is the second phase in the onus of proof, which lies on the person, who sets up the family character of the property.

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Where, however, the existence of the nucleus is shown and no other source of income is disclosed the presumption may be made that the nucleus was sufficient to enable the property to be acquired. Such being the presumption, if any member of the family claims any portion of the property, as his separate property, the burden lies upon him in any such case to that it was acquired by him in circumstances which would constitute it is separate property.

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He may do so by showing that the income of the existing ancestral property was employed in other ways, or was kept intact. If he adduces no evidence, the presumption that the property was joint family property, must prevail. The mere fact that it was purchased in his name and that there are receipts in his name respecting it does not render the property his separate property for all that is perfectly consistent with the notion of its being joint property. However, if, in addition to the fact that certain property stands in the name of one of the members, A, B, there be these further facts, namely that some other member of the family had acquired separate property with their own moneys and dealt with it as their own without reference to the rest of the family, and that, AB was allowed by the family to appear to the word to be the sole owner, the presumption that the property is joint is weakened, and the burden of proving that it is joint will lie on those who allege that it is joint. There is no presumption in case of property standing in the name of female members.

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22.In this case, the plaintiff failed to discharge the initial burden of establishing that there was any income from the ancestral properties obtained

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by the first defendant through the partition deed dated 26.08.1966 Ex.A1. In view of the fact that the first defendant has not let in any evidence to establish his separate income is of no consequence in so far as the claim of the plaintiff https://www.mhc.tn.gov.in/judis 14/16

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is concerned. Under these circumstances, for failure to let evidence by the plaintiff, the claim of the plaintiff that the plaint scheduled property is joint family property to be failed. Therefore, the trial Court rightly held that the plaintiff is not entitled for partition in the plaint schedule property. All the issues are answered accordingly. The plaintiff is not entitled for any relief. The first appeal fails and the same is dismissed with costs. Consequently, a connected miscellaneous petition, if any, is closed.

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Index/Internet: Yes / No Speaking order: Yes/No 04.03.2025 sms

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To

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