Madras High Court
Sowdhar Ammal vs E.Arasu on 17 April, 2021
S.A.No.373 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 17.04.2021
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.No.373 of 2021
and
C.M.P.No.7047 of 2021
in
S.A.No.373 of 2021
Sowdhar Ammal
D/o.Krishnappa Mudaliar .. Appellant
Vs.
1. E.Arasu
S/o.Ettiyappan
2. E.Ravi
S/o.Ettiyappan
3. E.Raju
S/o.Ettiyappan
4. E.Anand
S/o.Ettiyappan
5. E.Sudha
W/o.Arasu .. Respondents
Second Appeal under Section 100 of CPC to set aside the judgement
and decree dated 13.09.2019 made in A.S.No.17 of 2017 on the file of the
Court (FTC) of the Additional District Judge, Arani, confirming the
1/12
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S.A.No.373 of 2021
judgment and decree dated 09.07.2012 made in O.S.No.42 of 2004 on the
file of the Court of the Subordinate Judge, Arani.
For Appellants : Mr.R.Agilesh
----
JUDGMENT
Two concurrent judgments/decrees against one Sowdhar Ammal (in
Original Suit and Appeal Suit) in her litigation against her four sons and one
daughter has brought her to this Court vide captioned Second Appeal i.e.,
S.A.No.373 of 2021 under Section 100 of 'The Code of Civil Procedure,
1908' ['CPC' for brevity].
2. This litigation commenced more than one and a half decades ago, to
be precise, it commenced on 23.06.2004 when the appellant presented a
plaint against her children namely, four sons and one daughter claiming
partition and separate possession of 1/5th share in suit properties. There are
about 9 items of suit properties, but it may not be necessary to dilate on those
factual aspects, owing to nature of legal drill under Section 100 CPC and in
the light of fact setting of this case.
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S.A.No.373 of 2021
3. The prayer for partition and separate possession was predicated on
the pleading that certain properties were given to the appellant under a
settlement deed dated 12.10.1955 (Ex.A1 described as 'tpUg;g[Wjp Mtzk;' in
judgments of Courts below) and that the suit properties were purchased from
and out of income from properties settled on her under Ex.A1. The suit was
resisted primarily on the pleading that suit properties are self acquired
properties and are not available for partition.
4. Original Suit is O.S.No.42 of 2004 on the file of 'Subordinate
Judge's Court, Arni, Tiruvannamalai' [hereinafter 'trial Court' for the sake of
convenience and clarity]. Trial Court framed 5 issues, which are as follows:
'1/ 12/10/1995 tpUg;g[Wjp Mtzk; rl;lg;go Vw;ff;Toajh>
2/ jhth brhj;Jf;fspy; 1k; gpujpthjpapd; jdpgg; l;l
brhj;Jf;fspy; thjpf;F ghfk; fpilf;ff;Toajh>
3/ thjp nfhUk; 1-5 ghftPjk; jhth brhj;Jf;fs; bghWj;J
fpilf;ff;Toajh>
4/ kfN:y; e!;lk; fpilf;f;Toajh>
5/ ntW vd;d ghpfhuk; tHf;fhofSf;F fpilf;ff;ToaJ>'
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S.A.No.373 of 2021
5. Trial Court took up issue No.3, answered the same first and in the
light of answer to issue No.3, opined that it may not be necessary to answer
issue Nos.1, 2, 4 and issue No.5 which is a residuary issue was negatived.
This was after full contest in the trial Court. Appellant as plaintiff before
trial Court examined herself as P.W.1 and 12 documents namely, Ex.A1 to
Ex.A12 were marked. On the side of defendants, second defendant E.Ravi
examined himself as D.W.1 and another witness was examined as D.W.2.
Ex.B1 to Ex.B20 were marked. After full contest, trial Court dismissed the
suit in and by judgment and decree dated 09.07.2012.
6. Plaintiff carried the matter in appeal by way of a regular First
Appeal under Section 96 of CPC to the 'Additional District Judge's Court,
FTC, Arni, Tiruvannamalai' [herienafter 'First Appellate Court' for the sake of
convenience and clarity] vide A.S.No.17 of 2017. Second defendant in trial
Court namely, E.Ravi preferred a cross objection vide I.A.No.8 of 2017 in
the First Appeal. In and by judgment and decree dated 13.09.2019, the First
Appeal was dismissed confirming the judgement/decree of trial Court and the
cross objection was partly allowed holding that cross objector/second
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S.A.No.373 of 2021
defendant is entitled to 1/4th share in Item Nos.1 & 2 of suit properties and it
was also made clear that he is not entitled to any share in Item Nos.3, 4, 6 to
9 of the suit properties. It was also observed that Item Nos.2 and 5 are
effectively one and the same properties, but it is not necessary to dilate on
those facts for the purpose of this judgement.
7. Mr.R.Agilesh, learned counsel on record for appellant contends that
once nucleus is demonstrated, the burden shifts to defendants. Before
proceeding further, this Court deems it appropriate to make it clear that the
burden does not shift. If at all and if that be so what can shift is only onus.
Therefore this Court construes the argument as shifting of 'onus'. The
argument is, once nucleus is demonstrated by plaintiff, the onus of proving
that suit properties are self acquired properties shifts to defendants. This
argument of learned counsel for appellant is predicated on a decision of
Hon'ble Supreme Court in D.S.Lakshmaiah case being D.S.Lakshmaiah
and another Vs. L.balasubramanyam and another reported in AIR 2003
SCC 3800. Learned counsel drew the attention of this Court to Paragraph
No.18 of D.S.Lakshmaiah case in support of his contention and the said
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S.A.No.373 of 2021
paragraph reads as follows:
'18. 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 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.'
8. Thereafter, notwithstanding very many grounds and notwithstanding
six questions being proposed (in the memorandum of grounds of appeal) as
substantial questions of law [SQsL] learned counsel projected his case on
two out of six questions adumbrated as (c) and (d) which read as follows:
'(c) Is the Lower Appellate Court justified in dismissing the
suit of Appellant/plaintiff when 1st respondent herein has admitted
that the items 1 and 2 were purchased from joint business,
conducted in Appellant's properties as per Ex.A1?
(d) Whether the Lower Courts failed to presume that all the
properties were purchased from the joint business (mechanical
shop) conducted in Appellant's property?'
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S.A.No.373 of 2021
9. According to learned counsel, the above are SQsL and the same
arise in the case on hand. As already alluded to supra, trial Court framed five
issues and answered issue No.3 first. To be noted the issues framed by trial
Court have been extracted and reproduced supra. While answering issue
No.3, this Court finds that the trial Court has addressed itself to this very
aspect qua SQsL and answered the same. Relevant portions of judgement of
the trial Court read as follows:
'..............nkYk; "A Hindu family is presumed to be joint. But
at the same time, there is no presumption that the joint family is
possessed of joint family properties even in such cases where the
presumption will arise.
2. Members of joint family can without disturbing the status
of the joint family acquire certain property.
3. Burden of proving the property as joint family is on the
person who claims it to be so and only when possession of nucleus is
admitted or proved and when nucleus is adequate, the onus shifts on
to the person who claims the property of self acquisition to
affirmatively made out the property was acquired without any aid
from the family estate (2002) 1 MLJ 708 vd;wpUf;Fk; epiyapy;
tHf;fpy; fz;l 3 Kjy; 9 mapl;l brhj;Jf;fspd; K:y
Mtz';fs; 1k; gpujpthjpaplk; ,Ug;gJk; mjid itj;J mth;
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S.A.No.373 of 2021
fld; bgw;wpUg;gJk;. nkw;go 3 Kjy; 9 mapl;l brhj;Jf;fis
kid gFjpfshf gphpj;J gy;ntW egh;fSf;F fpuak;
bfhLj;Js;snjhL mjpy; xU rpytw;iw 5k; gpujpthjpf;F jhd
brl;oy;bkz;l vGjp itj;j jd;ika[k; mwpa KofpwJ/
mj;Jld; 1k; gpujpthjp jdpgg; l;l Kiwapy; muR rh;tP!; !;nlrd;
vd;w epWtdj;jpw;F mDkjp bgw;Ws;shh; vd brhy;Yk;nghJ
mjd; K:yk; 1k; gpujpthjpf;F jdpg;gl;l tUtha; ,Uf;fpwJ vd;w
rl;lg;g{h;tkhd mDkhdj;ij ifbfhs;tij jtpu ntW epiy
,t;tHf;fpy; ,y;yhky; ,Uf;fpwJ/ ,e;j epiyapy; thjpahdth;
tHf;F brhj;Jf;fs; midj;Jk; Tl;L FLk;g brhj;Jf;fs;
vd;Wk;. mitfspy; xt;bthUtUf;Fk; g';Fhpika[s;sJ vd;Wk;.
jhDk; 5y; xU ghfk; bgw mUfh; vdr; brhy;Yk; epiy
Vw;g[ilajhf ,y;iy/ ,e;j epiyapy; thjpahdth; mth; nfhUk;
ghfg;gphptid nfhhpf;ifia rhl;rpa';fs; kw;Wk; rhd;whtz';fs;
Kd;epWj;jp chpathW epU:gpf;ftpy;iy vd;w epiyapy; thjp
nfhhpa[ss
; ghfg;gphptid thjpf;F fpilf;ff;Toajy;y vd;W
tHf;bfGtpdh 3f;F tpilaspf;fg;gLfpwJ/'
10. Therefore, the findings of fact returned by the trial Court and
confirmed by the First Appellate Court regarding the alleged nucleus diffuses
the arguments of learned counsel for appellant. In other words,
D.S.Lakshmaiah case does not come to the aid of appellant in the instant
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S.A.No.373 of 2021
case as there is a factual finding regarding the nucleus itself by two Courts
namely, trial Court and First Appellate Court.
11. It was also argued that the first defendant was barely 32 years old
at the time of acquisition of suit properties and therefore he did not have
enough means to acquire the suit properties. The trial Court has addressed
itself to this aspect also and answered the same. To be noted, this answer is
contained in the portions extracted and reproduced to supra, wherein the trial
Court has returned findings of fact that first defendant has been running a
service station and had independent income leading to a presumption which
is very strong. First Appellate Court did not come to any different finding.
These are findings of facts returned by the trial Court and the First Appellate
Court. As these are findings of fact, in the light of Kanailal principle being
principle laid down by Hon'ble Supreme Court in Kanailal and others Vs.
Ram Chandra Singh and others reported in (2018) 13 SCC 715, this Court
deems it appropriate to set out that the lone point for consideration in
captioned Second Appeal is whether any substantial question of law arises in
this case. This lone point for determination has been formulated by drawing
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S.A.No.373 of 2021
inspiration from Kirpa Ram principle being principle laid down by Hon'ble
Supreme Court in Kirpa Ram Vs. Surendra Deo Gaur and others reported
in 2020 SCC Online SC 935. To be noted, Kanailal principle is to the effect
that principles underlying Order XLI Rule 31 of CPC have to be telescoped
into a Section 100 CPC legal drill and Kirpa Ram principle is to the effect
that a Second Appeal can be dismissed at the admission stage itself if a
Second Appeal Court finds that no substantial question of law arises.
12. A careful examination of the two questions projected brings to
light that they do not qualify as substantial questions of law. As the
expression 'substantial question of law' (SQL) has been elucidatively
explained in a long line of authorities starting from Rimmalapudi Subba
Rao's case [Rimmalapudi Subba Rao Vs. Noony Veeraju and others
reported in AIR 1951 Mad 969 (FB)] to Santosh Hazari's case [Santosh
Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179]. Suffice to
say that debatable questions, questions that are res integra, disregarding
settled principles are list (not exhaustive, but illustrative) of SQL tests
without burdening this judgment with extracts from these long line of
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S.A.No.373 of 2021
authorities. The aforementioned questions clearly turn on facts and in any
event from the narrative supra, it becomes clear that both the Courts below
namely, trial Court and First Appellate Court have answered those questions
on facts by returning factual findings. This Court therefore comes to the
conclusion that no substantial question of law arises in the captioned Second
Appeal and the same is dismissed at admission stage. Owing to the nature of
the matter and owing to the nature of submissions made before this Court,
there shall be no order as to costs. Consequently, CMP is also dismissed.
17.04.2021
Speaking/Non-speaking order
Index : Yes / No
Internet : Yes / No
mk
To
1. The Subordinate Judge,
Arni,
Tiruvannamalai District.
2. The Additional District Court
FTC, Arni,
Tiruvannamalai District.
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S.A.No.373 of 2021
M.SUNDAR. J
mk
S.A.No.373 of 2021
17.04.2021
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