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Judgment
Honourable Mr. Justice G. Rajasuria
This appeal is focussed by the plaintiffs as against the judgment and decree dated 07.09.2009 made in O.S.No.156 of 2007, which was a suit
for partition, on the file of the Additional District Judge cum Fast Track Court II, Salem. The parties are referred to hereunder according to their
litigative status and ranking before the trial Court.
Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus:
The four minor plaintiffs through their mother and next friend, filed the suit for partition seeking the following reliefs in respect of the two items of
properties, contending that those properties are the ancestral properties in which they are entitled to shares:
(a) To direct the defendants to divide the suit properties into 10 equal shares and allot 4 such continguous share to the plaintiffs making provision
for passing final decree after appointment of commission;
(b) To restrain the defendants by means of permanent injunction from in any way alienating or encumbering the suit properties, till the division is
over; and
(c) For costs.
(Extracted as such)
The defendants filed the common written statement resisting the suit; whereupon issues were framed.
During trial, on the side of the plaintiffs, the plaintiffs'' mother was examined as P.W.1 and Exs.A1 to A6 were marked. On the side of the
defendants, D2-Palaniappan examined himself as D.W.2 and Ex.B1 was marked.
Ultimately the trial Court decreed the suit in respect of the first item, allotting 4/10th share in favour of the plaintiffs and the rest of the prayer was
dismissed on the finding that the second item was not the ancestral property. Being aggrieved by and dissatisfied with the judgment and decree of
the trial Court in rejecting the prayer for partition of the second item of the property, this appeal has been filed on various grounds.
The learned counsel for the appellants placing reliance on the grounds of appeal would pilate his arguments, inviting the attention of this Court to
various portions of the evidence, a thumb nail sketch of the same, would run thus:
(a) The relationship among the parties is an admitted one. D1-Kandasamy obtained the first item of the property with some other portion in a
partition among his brothers and himself. A part of such ancestral property was sold vide the sale deed as contained in Ex.A12 on 26.05.1999.
Immediately, so to say on 03.06.1999, the second item of the suit property was purchased in the name of D2 utilising the said sale proceeds. As
such, the concept ''blending'' ought to have been ushered in by the trial Court, but the trial Court wrongly held as though the plaintiffs did not
adduce any evidence to prove that the second item of the suit property was also an ancestral property.
(b) Preponderance of probabilities would govern the adjudication in civil cases and the plaintiffs being minors, amply established before the trial
Court that there were probabilities to presume that the sale proceeds which D1 got by selling a portion of the ancestral portion of the property on
03.06.1999, utilised the same for purchasing the second item of the suit property. But the trial Court did not appreciate the evidence in proper
perspective.
Accordingly, the learned counsel for the appellants would pray for setting aside that much portion of the judgment and decree of the trial Court in
rejecting the prayer for partition in respect of the second item of the property, and for decreeing the suit in entirety as prayed for.
In a bid to shoot down and mince meat, torpedo and pulverise the arguments as put forth and set forth on the side of the appellants/plaintiffs, the
learned counsel for the respondents/defendants would advance his arguments, the pith and marrow of them would run thus:
(a) The onus of proof was on the plaintiffs to prove that the second item of the suit property was purchased from out of the joint family income.
Simply because some time before the purchase of the second item of the property, part of the ancestral property was sold, that it does not mean
that the sale proceeds of the ancestral property was utilised for the purchase of the second item of the property which was purchased for a total
consideration of Rs.1,10,000/-; whereas, part of the ancestral property was sold only for a meagre sum of Rs.44,000/-. As such, the trial Court
was right in holding that the second item of the suit property was not proved to be an ancestral property subject to partition.
Accordingly, the learned counsel for the respondents/defendants would pray for the dismissal of the appeal.
The points for consideration are as to:
(1) Whether the trial Court was justified in holding that there was no evidence to indicate that item 2 of the suit property was purchased from out of
the income derived by selling a part of the ancestral property, even though shortly before such purchase, admittedly a part of the ancestral property
was sold for a considerable amount?
(2) Whether the trial Court failed to apply the Hindu law concept of ""blending"" of ancestral income with the individual income in purchase of
property?
(3) Whether there is any perversity or illegality in the judgment of the trial Court?
All the points are taken together for discussion as they are inter-linked and inter-woven with one another.
The indubitable and indisputable, or atleast the undeniable facts could pithily and precisely be set out thus:
There is a matrimonial dispute between D2-Palaniappan and his wife-Manoranjitham who represents her minor children # plaintiffs 1 to 4. In
respect of the first item of the suit properties is concerned, absolutely there is no dispute and the parties are satisfied with the trial Court''s judgment
in ordering partition and allotting 4/10 share in the first item of the suit property in favour of the plaintiffs. Whereas, it has to been as to whether the
second item of the suit properties is an ancestral property or not. The trial Court at paragraph No.8 of the judgment simply stated thus:
8...There is no materials in Ex.A4, to indicate that item No.2 was purchased from the income that was derived from the Ist item of the suit
property. The plaintiffs have not produced any evidence both oral and documentary to establish that the 2nd item was purchased from the income
of the Ist item of the suit property. Therefore, this court holds that the 2nd item of the suit property is the self-acquired property of the 2nd
defendant and the plaintiffs have no right over the 2nd item of the property and the issue is answered against the plaintiff.
Accordingly, the trial Court without adverting to anything more, simply dismissed the prayer for partition of the second item of the suit
property. I am of the view that the concept ''blending'' has not been considered by the trial Court at all.
My mind is redolent and reminiscent of the following maxims:
(1) Affirmantis est probare : The person who affirms must prove.
(2) Affirmanti, non neganti, incumbit probatio: The proof is incumbent on the one who affirms, not on the one who denies.
The onus probandi is normally on the plaintiff, but in a suit for partition, the plaintiff is deemed to be the defendant and vice-versa. The minor
plaintiffs through their mother claim that the second item of the properties is also an ancestral property.
The learned counsel for the plaintiffs has appropriately and appositely pointed out that the minor plaintiffs so far this case is concerned were not
expected to prove anything positively, because they have succeeded in highlighting the fact that on 26.05.1999, admittedly part of the ancestral
property was sold for a sum of Rs.44,000/- as evidenced by Ex.A12 and shortly thereafter, the second item was purchased as per Ex.A4 on
03.06.1999, so to say, a week after the emergence of Ex.A12. There is nothing to indicate as to how the sale proceeds of Ex.A12 were utilised, if
not it was used for purchasing the second item as per Ex.A4.
The learned counsel for the respondents/defendants by inviting the attention of this Court to the recitals in Ex.A12, would elaborate his
argument by pointing out that those amounts were utilised for family expenses as well as for discharging family debts. Mere recitals in Ex.A12
cannot be taken for gospel truth. Evidence ought to have been adduced to prove what were the family debts discharged and how far the minor
plaintiffs also could have been fastened with the burden of discharging such family debts. Absolutely there is no iota or shred, shard or molecular,
jot or scintilla of evidence to demonstrate and display all those details. Over and above that, the burden is on D2 to prove as to how he purchased
the second item of the suit properties. No doubt, P.W.1 herself admitted candidly and categorically that her husband D2, was working in a
responsible post in Salem Steel Plant, which is a public sector undertaking and obviously and axiomatically the officials were governed by a set of
conduct rules. There is nothing to indicate as to whether he purchased the second item of the properties from out of his salary savings, or by raising
loans or by both etc. Even if it is taken that from out of his salary savings he purchased the second item, there should be evidence to show in what
manner he retained such amount. No bank pass book of D2 was produced. Absolutely there is no explanation as to how he raised that amount.
He ought to have informed the Public Sector administration i.e., his employer about his purchase and also the source of his purchase, but no
evidence was adduced in that regard.
To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that in a suit for partition and that too when
minors initiated the suit as against their grand father and father seeking partition, the grand father and father cannot simply plead that the minor
plaintiffs should prove those facts which are within the exclusive knowledge of the defendants. It is apparently and pellucidly clear that D2 who
pleaded that the sale proceeds of the ancestral property were not utilised for purchasing the second item, should prove the said fact and he cannot
simply wriggle out of his liability by contending that the minors should prove that the second item was purchased from out of the income derived
from the ancestral property.
The learned counsel for the defendants also in all fairness would submit that on that line, the matter was not approached and the trial did not
proceed adverting to those facts. Hence, in this factual matrix, I am of the view that the trial Court which was expected to delve deep into the
concept ''blending'' failed to do so. Even though ex facie and prima facie the circumstances made the burden of proof ambulatory and thereby
shifted the burden from the plaintiffs to the defendants'' side, the defendants have not discharged it. The pertinent question may arise as to why this
Court cannot simply decree the suit in favour of the minors. I am of the considered view that owing to misapprehension and misunderstanding,
proper evidence was not placed before the Court.
Trite the proposition of law is that every trial is a voyage of discovery, in which the quest for truth is the goal. Accordingly if viewed, the real
facts should be brought on record instead of simply deciding the lis relying on the scanty and patchy evidence. The trial Court therefore, without au
fait with law and au courant with facts dismissed the prayer of the plaintiffs in respect of the second item.
As such, the point No.1 is answered to the effect that the trial Court was not justified in simply holding that there was no evidence to indicate
that item 2 of the suit property was purchased from out of the income derived by selling a part of the ancestral property.
Point Nos.2 and 3 are answered to the effect that the trial Court failed to apply the Hindu law concept of ''blending'' of ancestral income with
individual income in purchase of property, warranting interference in this appeal.
Accordingly, the judgment and decree of the trial Court in rejecting the prayer of the plaintiffs seeking partition of the second item of the
property is set aside and the matter is remitted back to the trial Court with the following direction:
Both sides are at liberty to put forth additional pleadings relating to the second item of the suit property and the source by which the second item
was acquired and both are also permitted to adduce oral and documentary evidence, whereupon the trial Court after hearing both sides shall
render a detailed judgment keeping in mind the applicability or otherwise of the doctrine of ''blending'' contemplated under the Hindu law. The trial
Court shall do well to see that the matter is disposed of within a period of three months from the date of receipt of a copy of this order.
The parties shall appear before the trial Court on 01.03.2012.
Accordingly, this appeal is disposed of. No costs.