Chandra vs Ramachandran
2022 Latest Caselaw 4519 Mad

                                                                          S.A.No.230 of 2013


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                     ORDERS RESERVED ON       :   17.03.2022

                                    PRONOUNCING ORDERS ON :        21.03.2022

                                                   CORAM

                            THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                              S.A.No.230 of 2013
                                              & M.P.No.1 of 2013
                1.Chandra

                2.Ravichandran

                3.Geetha

                4.Jayachandran

                5.Soundararajan                                                 .. Appellants

                                                   /versus/

                1.Ramachandran

                2.M.Ethiraj (Died)

                3.Krishnan

                4.Senthamaraikannan

                5.Rukkumani Ammal

                6.Mathiazhagan

                7.Senthamizh Selvi

                8.Selvapandian

                9.Chandrasekaran

                10.Elangovan


https://www.mhc.tn.gov.in/judis
                                                    1 of 16
                                                                           S.A.No.230 of 2013



                11.Elamurugan

                12.Saraswathi

                13.Shanthi

                14.Rajasekar                                                 ..Respondents

                [R12 to R14 as Lrs of the deceased R2 vide Court Order dated 08.03.2022
                made in CMP.Nos.3562, 3566 and 3569 of 2022 in S.A.No.230 of 2013]



                PRAYER : Second Appeal filed under Section 100 of C.P.C., against the

                Judgment and Decree dated 07.12.2012 in A.S.No.39 of 2011 on the file

                of the Principal District Court, Villupram, as confirmed by the Judgment

                and Decree dated 23.12.2010 in O.S.No.3 of 2005 on the file of

                Subordinate Court, Gingee.



                                  For Appellants   : Mr.A.R.L.Sundaresan
                                                     Senior Counsel for
                                                     Ms.AL.Gandhimathi

                                  For Respondents : Mr.T.Sai Krishnan for R1

                                                     R2 Died Step taken

                                                     R3 & R4 – Served
                                                     No Appearance

                                                     M/s.N.V.Prasanna for R5 to R11

                                                     R12 to R14 – Not ready in notice




https://www.mhc.tn.gov.in/judis
                                                   2 of 16
                                                                                S.A.No.230 of 2013



                                                    JUDGMENT

The defendants 12, 15 to 18 are the appellants in this Second

Appeal.

2.The 1st respondent/plaintiff filed the suit seeking for the relief of

partition and for allotment of 1/3rd share in the suit properties and for

rendition of accounts by the 2nd defendant.

3.The case of the plaintiff is that the “A” Schedule property was left

behind by Elumalai Gounder and the plaintiff and defendants 1 & 2 being

his sons are entitled to the said property. The further case of the plaintiff

is that the plaintiff and the 1st defendant were living away from the

property in view of their avocation and initially the property was under the

control of the mother and thereafter, it came into the absolute control of

the 2nd defendant. The further case of the plaintiff is that the “A” Schedule

property yielded sufficient income. The “B” Schedule property initially

stood in the name of the mother and she settled the property in favour of

her three sons through a registered Settlement Deed dated 22.07.1972.

Insofar as the “C” Schedule property is concerned, it was purchased in the

name of the 1st defendant. The “D” Schedule property was purchased in

the name of the 2nd defendant and the “E” Schedule property was

https://www.mhc.tn.gov.in/judis 3 of 16 S.A.No.230 of 2013

purchased in the name of the plaintiff. According to the plaintiff, even

though the “B” Schedule, “C” schedule, “D” Schedule and “E” Schedule

properties were purchased in individual names, all these properties

formed part of the joint family property, since it was purchased from the

income yielded from the “A” Schedule property.

4.The grievance of the plaintiff is that the 2nd defendant was not

willing to come forward to partition the properties and to render the

accounts for the income derived from the properties and hence, the suit

came to be filed for the relief of partition and allotment of 1/3 rd share in

the suit properties.

5.The case of the 2nd defendant is that he was employed during the

period from 1959 to 1962 and thereafter, he left employment and started

doing contract work from the year 1963 onwards. He became a major

contractor in the year 1970. Hence, he had sufficient source and earnings

to purchase properties individually in his name. Accordingly, all the

properties mentioned in the “D” Schedule were purchased by the 2nd

defendant with his own income and the revenue records were also

mutated in his name. Therefore, the 2nd defendant had taken a stand that

the “D” Schedule property cannot form part of partition, since he is the

exclusive owner of the property.

https://www.mhc.tn.gov.in/judis 4 of 16 S.A.No.230 of 2013

6.The 12th defendant filed a separate written statement and she

claimed her right through the 11th defendant by virtue of the registered

Sale Deed dated 13.01.1992. The 12th defendant is none other than the

wife of the 2nd defendant who was claiming ownership in the “F” Schedule

property. This defendant virtually supported the stand taken by the 2nd

defendant.

7.The defendants 15 to 18 are none other than the legal heirs of the

deceased 2nd defendant and they were impleaded after the demise of the

2nd defendant during the pendency of the suit.

8.The trial Court after considering the facts and circumstances of

the case and on appreciation of the oral and documentary evidence

decreed the suit in O.S.No.3 of 2005 and a preliminary Decree was

passed with respect to suit Schedule “A” to “E” and the plaintiff was held

to be entitled for 1/3rd share in those properties.

9.Aggrieved by the same, the defendants 12, 15 to 18 filed

A.S.No.39 of 2011 before the Principal District Judge, Villupuram. This

appeal was dismissed by Judgment and Decree dated 07.12.2012 and the

Judgment and Decree passed by the trial Court was confirmed. Aggrieved

by the same, defendants 12, 15 to 18 have filed this Second Appeal.

https://www.mhc.tn.gov.in/judis 5 of 16 S.A.No.230 of 2013

10.When the Second Appeal was admitted, the following substantial

questions of law were framed:

a) Whether the Courts below are right in granting decree for partition in respect of properties in Schedule “D” to the plaint, which are admittedly purchased under Sale Deeds in the name of the 2nd defendant?

b) Whether the Courts below have committed an error in treating the separate property of the 2nd defendant as joint family property without adequate pleadings and evidence in this regard?

c) Whether the Judgments of the Court below are against settled principles of law relating to pleadings and proof in respect of properties standing in the name of the individual members of the joint family?

11.Heard the learned counsel for the appellants and the learned

counsel appearing on behalf of the respondents.

12.This Court carefully went through the pleadings and also the

findings rendered by both the Courts below based on the evidence

available on record.

https://www.mhc.tn.gov.in/judis 6 of 16 S.A.No.230 of 2013

13.At the outset, it must be mentioned that the Second Appeal

confines itself only with regard to the dispute surrounding the “D”

Schedule property. Therefore, there is no requirement for this Court to

discuss about the other properties in this appeal.

14.The learned Senior Counsel appearing on behalf of the appellants

submitted that both the Courts below failed to take note of the fact that

the plaintiff did not establish that the “D” Schedule property was

purchased from the surplus income derived from the “A” Schedule

property. It was further submitted that the 2nd defendant had independent

income from the year 1959 onwards and he was able to purchase the “D”

Schedule properties for the period from 1965 to 1989 and by no stretch,

these properties can be thrown into the common hotchpot.

15.The learned Senior Counsel extensively relied upon the evidence

of PW1 in this regard. The learned Senior Counsel in order to substantiate

his submissions relied upon the judgment of the Division Bench of this

Court in the case of R.Deivanai Ammal (Died) and another vs.

G.Meenakshi Ammal and others reported in 2004 4 CTC 208. The

learned Senior Counsel concluded his arguments by submitting that both

the Courts below had erroneously granted a share to the plaintiff even in

the “D” Schedule property when the said property exclusively belongs to

https://www.mhc.tn.gov.in/judis 7 of 16 S.A.No.230 of 2013

the 2nd defendant. It was therefore, contended that the Judgment and

Decree of both the Courts below deserves to be interfered insofar as the

“D” Schedule property is concerned.

16.The learned counsel for the 1st respondent/plaintiff submitted

that the plaintiff had sufficiently pleaded and proved that the “A” Schedule

property was the nucleus from which the income was derived and

Schedule “B” to “E” properties were purchased only out of the said

income. The learned counsel further submitted that even the other

Schedule properties viz., “B” Schedule, “C” Schedule and “E” schedule

properties were standing in the name of individuals and they were held to

be the joint family properties and the very same yardstick should be

applied for the “D” Schedule properties also. The learned counsel further

submitted that the properties in the “D” Schedule were purchased during

the period from 1965 to 1989 in the name of the 2nd defendant. Whereas,

the 2nd defendant stopped going for work from the year 1963. He became

a contractor only in the year 1970 and Exhibits B16 at B21 which were

relied upon by the 2nd defendant to prove the income only pertained to the

year 1979 to 1992. Therefore, there was absolutely no explanation for

any income from 1963 to 1979. That apart, most of the properties in the

“D” Schedule were purchased during the period when the “C” Schedule

properties were purchased in the name of the 1st defendant and many

https://www.mhc.tn.gov.in/judis 8 of 16 S.A.No.230 of 2013

were adjacent properties. Therefore, what was applied for the “C”

Schedule properties, should be applied for the “D” Schedule properties

also. The learned counsel submitted that the plaintiff sufficiently

discharged the burden and the 2nd defendant was not able to prove

sufficient individual income to purchase the “D” Schedule properties.

Hence, the learned counsel concluded his arguments by submitting that

there are absolutely no grounds to interfere with the Judgment and

Decree of both the Courts below. The learned counsel in order to

substantiate his submissions, relied upon the judgment of the Division

Bench of this court in the case of Ponnuswamy vs. Meenakshi Ammal

and others reported in 1989 2 LW 227.

17.In the present case, there is no dispute with regard to the fact

that “A” Schedule property was a joint family property containing 15 items

and it was an income yielding property. The “B” Schedule property

containing 7 items was purchased in the name of the mother. She has

executed a Settlement Deed in favour of her three sons on 22.02.1972.

Thereby, the plaintiff and defendants 1 & 2 became entitled for 1/3rd

share in the properties. The “C” Schedule property containing 10 items

was purchased in the name of the 1st defendant. The “D” Schedule

property containing 17 items was purchased in the name of the 2nd

defendant. The “E” Schedule property containing 5 items was purchased

https://www.mhc.tn.gov.in/judis 9 of 16 S.A.No.230 of 2013

in the name of the plaintiff.

18.Both the Courts below on appreciation of oral and documentary

evidence, came to a categorical conclusion that all the properties were

purchased from the income yielded by the “A” Schedule properties. These

properties were originally under the control of the mother and thereafter,

it came under the control of the 2nd defendant. Of course, the 1st

defendant was also visiting the properties regularly, since he was working

elsewhere.

19.Insofar as the “D” Schedule properties are concerned, the 2nd

defendant claims that these properties were purchased out of his own

earnings and hence, it cannot be thrown into the common hotchpot.

20.It is now a settled law that properties standing in the name of an

individual must be considered to belong to that individual exclusively. The

burden of proof is upon the person who alleges that the property has the

character of a joint family property and he has to prove the same. Till this

burden is discharged, the person in whose name the property stands will

be considered as the owner of the property. The doctrine of blending the

self-acquired property with the joint family property should be applied

with caution. It must be proved that there is a joint family nucleus and

https://www.mhc.tn.gov.in/judis 10 of 16 S.A.No.230 of 2013

the joint family properties yielded income and such income is sufficient

enough to purchase the property in question after meeting the family

expenses. Till this is proved, the property will be taken to be the absolute

property of the person in whose name it stands. The law on this issue is

well settled.

21.In the present case, there is no dispute that the “A” Schedule

property yielded sufficient income. That is the reason why the properties

that were purchased in the individual names in “B” Schedule, “C”

Schedule and “E” schedule were held by both the Courts below to form

part of the joint family property. This was sufficiently proved by the

plaintiff. The only issue is as to whether the income from the “A” Schedule

property was used for purchasing the “D” schedule property also in the

name of the 2nd defendant or those properties were purchased out of the

individual earnings of the 2nd defendant.

22.Both the courts below took into consideration the following

factors after appreciating the oral and documentary evidence in order to

hold that the “D” Schedule property also forms part of the joint family

property and it is not the individual property of the 2nd defendant:

https://www.mhc.tn.gov.in/judis 11 of 16 S.A.No.230 of 2013

a) The “A” Schedule property was a surplus income yielding property

through which all the other properties were purchased.

b) The reasoning that was given for the “B” Schedule, “C” Schedule

and “E” Schedule properties was applied for the “D” Schedule

property also and the same yardstick was followed.

c) Both the courts below carefully considered the deposition of DW2

who is the son of the 2nd defendant and found that the 2nd defendant

did not earn any income after he lost his job in the year 1963. He

further stated that his father became a contractor in the year

1970/1972. Exhibits B16 to B21 which was marked through DW2

pertained to the period from 1979 to 1992 and insofar as the

payment of income tax is concerned, it was filed for the period from

1980 to 1992. Whereas, the properties were purchased in the name

of the 2nd defendant from 1965 to 1989. There was absolutely no

source of income atleast for the period from 1965 to 1980. There

was absolutely no explanation from DW2 in this regard.

d) Both the Courts below also took into consideration the Release Deed

executed by the aunt, which was marked as Ex.A12 and it was

found that the Release Deed was executed in favour of the plaintiff

https://www.mhc.tn.gov.in/judis 12 of 16 S.A.No.230 of 2013

and defendants 1 & 2 and in that Release Deed, items 1, 4 and 6 of

the “D” Schedule also formed part. If really, the 2nd defendant is the

exclusive owner of the “D” Schedule property, there was no

requirement for the aunt to execute a Release Deed for these

properties. When this was put to DW2, he was not able to give any

explanation for the same.

23.Apart from the above factors, it can also be seen that the “C”

Schedule properties purchased in the name of the 1st defendant also took

place in or around the same time when the “D” Schedule properties were

purchased in the name of the 2nd defendant. That apart, many of the

properties in the “D” Schedule was adjacent to the “C” Schedule

properties. These are also factors that can be taken into consideration by

this Court.

24.This court does not find any perversity in the findings rendered

by both the Courts below. Both the Courts were perfectly right in holding

that the “D” Schedule properties which stood in the name of the 2 nd

defendant must also be thrown into the common hotchpot. This is in view

of the fact that the “A” Schedule property was yielding surplus income,

the 2nd defendant was managing the said property and there was no

proof on the side of the 2nd defendant to show that he had sufficient

https://www.mhc.tn.gov.in/judis 13 of 16 S.A.No.230 of 2013

income to purchase the properties in the “D” Schedule in his name. The

factual findings of both the Courts below does not warrant any

interference. The substantial questions of law are answered accordingly

against the appellants.

25.In the result, this second appeal stands dismissed. Considering

the facts and circumstances of the case, there will be no order as to costs.

Consequently, connected miscellaneous petition is closed.

21.03.2022

speaking order/Non-speaking order Index:Yes/No Internet : Yes/No ssr

https://www.mhc.tn.gov.in/judis 14 of 16 S.A.No.230 of 2013

To

1.The Principal District Court, Villupram.

2.The Subordinate Court, Gingee.

https://www.mhc.tn.gov.in/judis 15 of 16 S.A.No.230 of 2013

N.ANAND VENKATESH. J., ssr

Pre Delivery Order made in S.A.No.230 of 2013

21.03.2022

https://www.mhc.tn.gov.in/judis 16 of 16