Madras High Court
Baby vs A.Chinnasamy ... 1St on 23 November, 2021
S.A. No.480 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.11.2021
PRONOUNCED ON : 08.12.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
S.A. No.480 of 2010
Baby ... Appellant /
Plaintiff
versus
1.A.Chinnasamy ... 1st Respondent /
1st Defendant
2.C.Arumugham
3.Parameswari ... Respondents 2 & 3 /
Defendants 2 & 3
[R-2 and R-3 set ex parte before the First Appellate Court. The presence
of R-2 and R-3 is dispensed with as per memo dated 23.11.2021 vide
order dated 30.11.2021 made in S.A.No.480 of 2010]
PRAYER: Second Appeal is filed under Section 100 of the Civil
Procedure Code, against the judgment and decree dated 20.07.2009 made
in A.S.No.52 of 2008 on the file of the Principal Subordinate Court,
Tirupur, reversing the judgment and decree dated 12.06.2008 made in
O.S.No.272 of 2005 on the file of the District Munsif, Tirupur.
For Appellant : Mr.S.Mukunth
for M/s.Sarvabhauman Associates
For Respondent No.1 : Mr.V.P.Sengottuvel
For Respondent Nos.2 and 3 : No Appearance
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S.A. No.480 of 2010
JUDGMENT
The present appeal is directed against the judgment and
decree dated 20.07.2009 passed in A.S.No.52 of 2008 on the file of the
Principal Subordinate Court, Tirupur, reversing the judgment and decree
dated 12.06.2008 passed in O.S.No.272 of 2005 on the file of the learned
District Munsif, Tirupur.
2. The appellant / plaintiff has filed the suit before the
learned District Munsif, Tirupur, in O.S.No.272 of 2005, seeking the
relief of partition, dividing the suit properties into 4 equal shares and also
allot 1 such share to the plaintiff and for costs. The learned District
Munsif, Tirupur, by judgment and decree dated 12.06.2008, had allowed
the suit and gave direction for effecting the partition.
3. Aggrieved over the said findings, the first defendant,
preferred an appeal, in A.S.No.52 of 2008 on the file of the Principal
Subordinate Court, Tirupur, praying to set aside the judgment and decree
dated 12.06.2008, passed by the learned District Munsif, Tirupur. By
judgment and decree dated 20.07.2009, the learned Principal Subordinate
Judge, Tirupur, had allowed the appeal and dismissed the suit filed by the
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S.A. No.480 of 2010
plaintiff. Being dissatisfied over the same, the plaintiff in the suit,
preferred this Second Appeal.
4. For the sake of convenience, hereinafter, the parties,
are referred to, as per their litigative status before the trial Court.
5. The averments found in the amended plaint in brief,
are as follows:
(i) The plaintiff and the defendants 2 and 3, are the
daughters and son of the first defendant. Both the plaintiff and the third
defendant have got married after Hindu Succession Amended Act. The
suit properties, are joint family properties of the plaintiff and the
defendants. Out of the joint family income derived from their ancestral
properties, the suit properties and other properties have been purchased
jointly on 11.12.1972 by the first defendant along with his brothers,
namely, Subramaniam and Velusamy. At that point of time, the brothers
of the first defendant lived as joint family and enjoyed the ancestral
properties jointly. They have partitioned their joint family and ancestral
properties only on 13.01.1995.
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S.A. No.480 of 2010
(ii) Subsequent to that, there was a partition among the
first defendant and his brother Subramaniam on 05.03.1993 and in that
partition, the suit properties have been allotted to the plaintiff and the
defendants family. Ever since from the date of partition, the plaintiff and
the defendants, are in joint possession and enjoyment of the suit
properties.
(iii) The plaintiff is entitled to 1/4th share and the
defendants are each entitled to 1/4th share in the suit properties. The
defendants are refused for partition, hence, the plaintiff has caused a
lawyer notice on 17.03.2005 to come forward for amicable partition.
After receipt of the said notice, the first defendant sent reply dated
29.03.2005 with false and frivolous allegations. Hence, the suit.
6. The case of the first defendant, is as follows:
(i) It is true that the plaintiff and the defendants 2 and 3,
are the sons and daughters of the first defendant. The suit properties are
the self-acquired properties of the first defendant and his two brothers,
Subramaniam and Velusamy. They purchased the suit properties on
11.12.1972 from and out of their earnings. The alleged joint family had
no income of any kind.
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S.A. No.480 of 2010
(ii) The first defendant and his two brothers worked in
Metal Factories at Tirupur and Angeripalayam from the year 1960 and
from which, they have saved considerable amount and by using the same,
they purchased the suit properties. The first defendant and his brothers
were engaged in brass vessels business at Perumanallur during 1970 and
were making good profit.
(iii) It is true that a partition between the first defendant
and his brother Subramaniam took place on 05.03.1993. The plaintiff was
not a party in the said partition. It is not correct to state that, the plaintiff
is in the joint possession of the suit properties along with the defendants.
The first defendant alone, is the absolute and exclusive owner of the suit
properties. The plaintiff had issued a notice dated 17.03.2005 for the
purpose of blackmailing and harassing the first defendant. All the
contentions raised in the reply dated 29.03.2005, are true and there is no
cause of action for the suit. Hence, the suit filed by the plaintiff, is liable
to be dismissed.
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S.A. No.480 of 2010
7. Based on the above said pleadings, the learned
District Munsif, Tirupur, framed necessary issues and tried the suit. On
the side of the plaintiff, 2 witnesses were examined as P.W.1 and P.W.2
and 7 documents were marked, as Ex.A.1 to Ex.A.7. Similarly, on the
side of the defendants, 2 witnesses were examined as D.W.1 and D.W.2
and 8 documents were marked, as Ex.B.1 to Ex.B.8.
8. Having considered the materials placed before him,
the learned District Munsif, Tirupur, vide judgment and decree dated
12.06.2008, concluded that, the plaintiff is entitled the relief of partition.
In the appeal filed by the first defendant in A.S.No.52 of 2008, the
learned Principal Subordinate Judge, Tirupur, reversed the findings and
held that, the plaintiff has not proved her case and accordingly, the suit
was dismissed.
9. Feeling aggrieved over the said findings of the Court
below, the plaintiff, is before this Court with the present Second Appeal.
The Second Appeal was admitted on file after formulating the following
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S.A. No.480 of 2010
substantial questions of law;
“(i) Whether the Lower Appellate Court is correct in law in coming
to the conclusion that the appellant had failed to prove that the suit
properties are purchased from joint family nucleus overlooking
Exs.A1, A2, A6 & A7 and the evidence of DW1 ?
(ii) Whether the Lower Appellate Court is correct in law in placing
the onus on the appellant to prove that the suit properties are
purchased from out of the joint family funds even after the
admission by the 1st respondent about such existence ?
(iii) Has not the Lower Appellate Court erred in not shifting the
onus of proof on the 1st respondent to prove that the suit properties
were purchased from out of the self acquired funds ?
(iv) Whether the Lower Appellate Court is right in law in
accepting Ex.B5 which is dated subsequent to the filing of the
suit ?”
10. Heard Mr.S.Mukunth, learned counsel for
M/s.Sarvabhauman Associates appearing for the appellant and
Mr.V.P.Sengottuvel, learned counsel appearing for the first respondent
and also perused the materials available on record.
11. The learned counsel for the appellant / plaintiff would
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S.A. No.480 of 2010
contend that the First Appellate Court, while at the time of disposing the
appeal, placing the onus of proof on the appellant, to prove that, the suit
properties were purchased from and out of the joint family funds, which
is an error committed by the First Appellate Court. He would further
submit that, it is necessary to place the onus of proof on the first
respondent to prove that, the suit properties were purchased from and out
of self-acquired funds and accordingly, after misdirected himself, the
First Appellate Court shift the onus of proof and came to the wrong
conclusion that, the plaintiff is not entitled the relief of partition.
12. Per contra, the learned counsel for the first respondent
would contend that, in view of Sections 101 to 103 of the Indian
Evidence Act, 1872, since the plaintiff alleges the existence of the Hindu
Undivided Family (HUF), it is for her to prove the same. In this regard,
the First Appellate Court has correctly rest the onus of proof on the
plaintiff and came to the conclusion that, the plaintiff has not proved her
case by adducing specific evidence and accordingly, set aside the
findings arrived at by the trial Court, which is well within the law already
settled by various Courts.
13. In support of his contentions, the learned counsel for
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S.A. No.480 of 2010
the first respondent relied on the judgment of our Hon'ble Apex Court in
BHAGWAT SHARAN vs. PURUSHOTTAM reported in (2020) 6 SCC
387 wherein, it has held as follows;
"The law is well settled that the burden lies upon the
person who alleges the existence of the Hindu Undivided Family
(HUF) to prove the same. It is clear that not only jointness of the
family has to be proved but burden lies upon the person alleging
existence of a joint family to prove that the property belongs to the
joint Hindu family unless there is material on record to show that
the property is the nucleus of the joint Hindu family or that it was
purchased through funds coming out of this nucleus."
14. Now, applying the principles set out in the above
referred judgment to the case on hand, here, it is a case, while at the time
of giving evidence as P.W.1, the plaintiff has filed a proof affidavit
stating that, the suit properties had been purchased on 11.12.1972 by the
first defendant along with his two brothers, Subramaniam and Velusamy
vide Ex.A.1 Sale Deed. Subsequent to that, the said Velusamy, one of the
brother settled his 1/3 share in favour of the first defendant and one
Subramaniam. The said settlement Deed exhibited on the side of the
defendants as Ex.B.2. Later on 05.03.1993 vide Ex.A.2 both the first
defendant and Subramaniam partitioned the said property among
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themselves in which the suit properties allotted to the first defendant.
15. Now, on going through the recital found in those
documents, nothing has been averred that the suit properties have been
purchased by utilising the funds derived from the ancestral properties.
16. Even assuming that the evidence given by P.W.1 is
found correct, to find out the truth, it is necessary to hear the said
Subramaniam and Velusamy, who are the brothers of the first defendant.
Therefore, on that score alone, the suit filed by the plaintiff is bad in law.
17. It is true that the first defendant in his cross
examination gave evidence as his father is having two brothers and they
are all doing the agricultural work in Perumanallur. Further, he has stated
that in 1995, there was a partition effected among the 12 members [vide
Ex.A.6] wherein, 4 out of 25 shares alone, was allotted to his family.
18. In otherwise, he did not mention the income derived
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by the joint Hindu family property. All are aware, without any specific
evidence in respect to the income derived, it cannot be held that, the suit
properties were purchased from the income derived from the ancestral
properties. Though the first defendant admitted that, his family is an
agricultural family and derived income from the agriculture, that alone, is
not sufficient to accept the case of the first defendant.
19. It is the case of the plaintiff that the suit properties
had been purchased by the first defendant by utilising the income derived
from the Joint Hindu family. In this occasion, it is necessary to see the
judgment relied on by the learned counsel for the first respondent [stated
supra], wherein, our Hon'ble Apex Court has held that, an admission
made by a party is only a piece of evidence and not conclusive proof of
what is stated therein. Therefore, mere admission made by the first
defendant in respect to the possession of ancestral properties alone,
would not sufficient to believe that, the suit properties had been
purchased by the first defendant, by utilising the funds derived from the
Hindu Joint family property.
20. In this occasion, the first defendant has produced the
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copy of Account Book maintained by him in his business as Ex.B.6.
Though the contents of the said document has been disputed on the side
of the plaintiff, the said document is sufficient to accept the case of the
first defendant as, he is doing some other work for his livelihood, apart
from agriculture. Therefore, without producing the relevant documents in
respect to the cultivation particularly and also, in respect to the income
details, we cannot hold that, the suit properties had been purchased only
from the income derived from the ancestral properties as alleged by the
plaintiff.
21. As rightly pointed out by the learned counsel for the
first respondent that, without any material on record to show that the
particular property is the nucleus of the joint Hindu family or that it was
purchased through funds coming out of this nucleus, we cannot held that,
the suit properties had been purchased as alleged by the plaintiff. In this
regard, the First Appellate Court has correctly placed the onus of proof
on the plaintiff and came to the conclusion that the plaintiff has not
proved her case.
22. The said findings arrived at by the First Appellate
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Court, is concurence with the judgment relied on by the learned counsel
for the first respondent. Therefore, I am of the considered view that the
findings arrived at by the First Appellate Court, is perfectly within the
law and accordingly, the substantial questions of law, are all answered in
favour of the respondents. The judgment and decree dated 20.07.2009
passed in A.S.No.52 of 2008 on the file of the learned Principal
Subordinate Judge, Tirupur, is hereby confirmed. The Second Appeal is
dismissed. However, there is no order as to costs.
08.12.2021
Speaking / Non-speaking order
Index : Yes / No
sri
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S.A. No.480 of 2010
R.PONGIAPPAN.J.,
sri
To
1.The Principal Subordinate Court,
Tirupur.
2.The District Munsif, Tirupur.
Pre-delivery Judgment made in
S.A. No.480 of 2010
08.12.2021
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