Madras High Court
Bagampriyal (Died) vs C.Suseela on 14 September, 2023
SA(MD)No.13 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 14.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
S.A.(MD)No.13 of 2019
and
C.M.P.(MD)No.889 of 2019
1.Bagampriyal (Died)
2.Thondiraj (Died) ... Appellants/ Respondents /Defendants
3.Ponkumar
4.Pondevi
(A3& A4 are bring on record as LRs of
the deceased 1st and 2nd appellants vide
Court order, dated 13.07.2023, made in
CMP(MD)Nos.4302&4303/2023.)
Vs.
C.Suseela ... Respondent / Appellant /Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree passed in A.S.No.6 of 2016,
dated 23.12.2016, on the file of the District Court, Sivagangai, confirming
the judgment and decree passed in O.S.No.77 of 2007, dated 01.02.2016,
on the file of the Subordinate Court, Sivagangai.
1/12
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SA(MD)No.13 of 2019
For Appellants : Mr.S.Madhavan
for Mr.Karthikeyavenkatachalapathy
For Respondents : Mr.P.Rajagopalan
for Mr.R.Devaraj
JUDGMENT
The appellants 1 & 2 herein are the respondents/ defendants and
the respondent herein is the appellant / plaintiff before the trial Court. The
appellants 3 & 4 are the legal heirs of the deceased appellants 1 & 2.
2. For the sake of convenience, the parties are referred to as per
their rank before the trial Court.
3. The brief averments of the plaint is as follows:-
The suit schedule property was originally purchased by the
plaintiff's father-in-law – Chellam Nadar, vide sale deed, dated 17.02.2003
from one Senthil. Ever since the date of sale deed, he has been in actual
physical possession and enjoyment of the property and has also put up
construction there on. While being so, through the sale deed, dated
24.09.2007, the plaintiff purchased the suit property from her father-in-law,
for due sale consideration. Ever since the date of purchase, the plaintiffs
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SA(MD)No.13 of 2019
have been in actual physical possession and enjoyment of the same. In such
circumstances, the defendant attempted to interfere with the possession by
contending that the suit property was the joint family property and has been
allotted to him by way of oral partition. Therefore, the plaintiffs filed a suit
for injunction for the relief of declaration and injunction and in the
alternative for the relief of possession.
4. The brief averments of the written statement is as follows:-
The suit property is not the absolute property of the Chellam
Nadar and that he being the Kartha of the joint family, he purchased the suit
property by using the joint family nucleus and that there was an oral
partition during June 2006. According to the defendant, in the said oral
partition, the said property was allotted to him. The defendant submits that
he has been doing business such as telephone booth as well as the Chicken
meat shop in the suit property. In the meanwhile, he executed a settlement
deed in favour of his wife, who is the first respondent herein, vide
document dated 21.01.2007. It is the submission of the defendant that the
plaintiff has fabricated the tax receipts and other revenue records. Hence,
the defendants prayed to dismiss the suit.
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SA(MD)No.13 of 2019
5. Before the trial Court, the plaintiff has examined 3 witnesses
as P.W.1 to P.W.3 and has marked 24 documents as Ex.A1 to Ex.A24. On
behalf of the defendant, 5 witnesses were examined as D.W.1 to D.W.5 and
71 documents were marked as Ex.B1 to Ex.B71. As a Court documents, 20
documents were marked as Ex.C1 to Ex.C20 and as a third party
documents, 2 documents were marked as Ex.X1 and Ex.X2.
6. After considering the oral and documentary evidence, and
arguments submitted on either side, the trial Court has disbelieved the case
of joint family nucleus and the alleged oral partition. Hence, based upon the
sale deed, stands in the name of the plaintiff and also based upon the
revenue records, the trial Court has declared the rights of the plaintiff.
However, considering the fact that the defendant is in possession of the
property, the trial Court has granted the alterative relief, directing the
defendant to deliver the vacant possession of the property.
7. Aggrieved with the order, the defendant has filed an Appeal in
A.S.No.6 of 2016. However, the first appellate Court, after considering the
various aspect and re-appreciation of the fact and law, has confirmed the
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SA(MD)No.13 of 2019
finding of the trial Court and dismissed the appeal on 23.12.2016.
8. Against the concurrent findings of the trial Court as well as the
first Appellate Court, the appellants / defendants have come forward with
the instant Second Appeal.
9. While filing the Second Appeal, the appellants have proposed
following substantial questions of law:-
(a) Whether the Courts below are right in decreeing the suit by
holding that the defendants has not proved their case?
(b) Whether the Courts below are right in the relying the Ex.B2,
sale deed stands in the name of the first defendant and holding that there is
no joint family arrangement?
(c) Whether the Courts below are right in not considering the
issue that the suit property was purchased from the joint family income in
the name of Chellam Nadar?
(d) Whether the decree can be passed on presumption of suit
property is self acquired property by Chellam Nadar?
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SA(MD)No.13 of 2019
10. The learned counsel for the defendants / appellants would
contend that there exist a joint family. Therefore, the purchase made by
Mr.Chellam Nadar, by using the joint family nucleus,becomes the joint
family property. The learned counsel for the defendants / appellants would
further contend that since the suit property is the joint family property,
Chellam Nadar has no right to execute the sale deed in favour of the
plaintiff in Ex.A7. The learned counsel would further submit that the trial
Court as well as the first Appellate Court has not considered the defence in
respect of the oral partition, therefore, prayed to interfere with the
concurrent finding and prayed to allow this Second Appeal. The learned
counsel for the defendants / appellants would rely upon the judgment of
this Court reported in 2018-1-LW-221 (M.Subramaniam @ M.S.Mani V.
S.Ravichandran).
11. Per contra, the learned counsel for the plaintiff / respondent
would vehemently submit that there was no joint family at all and that the
defendants did not prove the existence of the joint family nucleus and
further they miserably failed to prove the alleged family partition and the
same was disbelieved by both the Courts below, hence, prayed to confirm
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SA(MD)No.13 of 2019
the concurrent findings. The learned counsel for the plaintiff / respondent
would reply upon the judgment of the High Court of Calcutta reported in
2018-4-CalT-428 (Gispati Alias Gurudas Bhattacharya V.Hrishikesh
Santra) and another judgment of this Court reported in 2022-SCC-
Online- Mad -1053 (P.Jayanthi V. C.Hemathiri).
12. I have given my anxious consideration to the either side
submissions.
13. The first and foremost submission on behalf of the
appellants / defendants is in respect of the existence of the joint family and
joint family nucleus. No doubt, while the plaintiff was cross examined
during the cross examination, the existence of a joint family until 2005 was
admitted. But, the point here is that mere existence of the joint family is
not sufficient to hold the property, held by the Kartha, is the joint family
property. In order to bring the property within the purview of the joint
family property, it is the duty of the person, who alleges the joint family
property has to discharge his burden by proving the existence of surplus in
the joint family nucleus to purchase the property in question.
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SA(MD)No.13 of 2019
14. In this regard, in all fairness, the learned counsel for the
appellants / defendants have relied upon the judgment reported in 2018-1-
LW-221 (M.Subramaniam @ M.S.Mani V. S.Ravichandran). Wherein
after the considering various judgment, this Court in paragraph 23 has held
as follows:-
“23.On the basis of the factual aspect of these
cases and also the decisions referred supra in
compendium, the Court can very well deduce the
following legal aspects:
(1)Every Hindu family is a joint family. But it
does not mean that every acquisition of immovable
property is for the benefit of joint family, by utilising
joint family income. There must be a common hotchpot
and the same should contain sufficient nucleus so as to
enable further acquisition.
(2)Kartha or manager or father of a joint family
can acquire immovable property in his name without
using surplus income of joint family. In the absence of
proof of separate income or funds of Kartha or manager
or father, the well established presumption is that such
acquisition of immovable property has been made by
utilising surplus income of the joint family for its benefit.
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SA(MD)No.13 of 2019
(3)Every member, including junior member of a
joint family, is having unfettered right of acquiring
immovable properties by using his separate income
without using joint family nucleus. If that aspect is
proved, the acquisition is nothing but his self-acquisition.
(4)If a member alleges that a particular
property is a joint family property, the initial burden lies
upon him and then burden shifts on the person who
alleges that it is his self-acquisition without utilising joint
family income.”
(Emphasis supplied by this Court)
15. As per the above ratio, if a member alleges that the property is
a joint family property, the initial burden lies upon him in order to bring the
property within the fold of joint family property. The member, who alleges
the existence of the joint family property has to prove the existence of the
sufficient joint family nucleus. Here, admittedly the defendants, except the
pleading of joint family property, has not filed any material, so as to prove
the existence of the sufficient joint family nucleus. Therefore, unless the
existence of the sufficient joint family nucleus is shown, the natural
presumption would be that the property stands in the name of the Kartha
cannot be construed as the joint family property. Once the property is not
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SA(MD)No.13 of 2019
the joint family property, then the plaintiff is entitled to have decree for
declaration.
16. It is pertinent to mention here that the first Appellate Court
as well as the trial Court have disbelieved the case of existence of the joint
family property. In order to substantiate the above finding, it is relevant to
refer about the observation of the First Appellate Court. The first Appellate
Court while disbelieving the existence of joint family has relied upon the
Registration certificate pertains to the mini van. According to the second
defendant, though the mini Van bearing Registration No.TN-63-F-0437 was
also the joint family property, the same was also allotted to the plaintiff's
husband. However, the first appellate Court found that the vehicle was
purchased by the plaintiff's husband by borrowing loan from the private
financier which clearly manifest the falsity of the defendant's case.
Therefore, this Court is of the firm view that the findings of the trial Court
as well as the first Appellate Court is based on sound reasoning and by
proper appreciation of law.
17. From the submission of the appellants / defendants, this Court
could not find any substantial question of law.
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SA(MD)No.13 of 2019
18. In the result, the instant Second Appeal stands dismissed, by
confirming the judgment and orders of both the Courts below. There shall
be no order as cost.
14.09.2023
NCC :Yes/No
Index :Yes / No
Internet :Yes / No
Ls
To
1.The District Court,
Sivagangai.
2. The Subordinate Court,
Sivagangai.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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SA(MD)No.13 of 2019
C.KUMARAPPAN.,J.
Ls
Judgment made in
S.A.(MD)No.13 of 2019
14.09.2023
https://www.mhc.tn.gov.in/judis
