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Judgment
M. Thanikachalam, J.—The plaintiff is the appellant.
The appellant as plaintiff had filed the suit O.S. No. 1676/97 on the file of the II Additional City Civil Court at Madras, for partition and
separate possession of his 1/6th share in the suit property, praying for a preliminary decree. It is the case of the plaintiff that his father Late K.M.
Subramaniam had purchased the suit property, under a registered sale deed dated 11.1.1950. Thereafter, according to the plaintiff, his father was
enjoying the same, being in possession, till he died intestate, in the year 1977.
The first defendant (since deceased) is the wife of K.M. Subramaniam i.e. the mother of the plaintiff and defendants 2 to 10. The averments
made in the plaint would suggest, that the daughters of K.M. Subramaniam are not entitled to any share in the suit property, since they were
already married before 1970, settled with their respective husbands. Thus, in a way, the plaintiff claiming that the suit property belonged to the
family, as an ancestral one, (though not pleaded so) had claimed a share of 1/6th. Since the share is denied, according to the plaintiff, the suit has
been filed, for the demarcation of the share, by metes and bounds.
The deceased first defendant in her written statement would contend, that her father in law, sold a house at Kozhikode, migrated to
Gobichettipalayam, where he started a hotel business, utilising the balance sale proceeds of the house, at Kozhikode, that in 1950, when her
husband and his two brothers were managing the hotel at Gobichettipalayam, under an agreement, K.M. Subramaniam was given Rs.10,000/- as
one time settlement, that late K.M. Subramanian had purchased the suit property on 11.1.1950, utilising the amount received by him under the
agreement. In this view, the first defendant would contend that she is entitled to 1/55th share, whereas the 4th defendant is entitled to 12/55th
share. Thus, claiming share for herself and the 4th defendant, a prayer was made in the written statement, to dismiss the suit of the plaintiff.
The second defendant in his written statement, affirming the purchase made by K.M. Subramaniam, had stated that the suit property is an
ancestral property, in which Shri Shankara Bala Vidyalaya was established, by constructing a small building in the year 1958, that to manage the
school, a trust by name Sree Sharada Education Trust has been formed in the year 1964, which trust had put up additional building in the years
1965 and 1975, in which he has got 7/39th share, which should be divided by metes and bounds.
The 4th defendant in his separate statement, in a way reiterating the stand taken by the first defendant, would contend, that the suit property is
not the self acquired property of late K.M. Subramaniam, whereas it is the ancestral joint family property, in which he is entitled to 7/39th share.
The 9th defendant, in her separate written statement, has taken the specific stand, that the suit property is the self acquired property of late
K.M. Subramaniam, who is employed in Binny and Co. It is the further case of the 9th defendant, that since K.M. Subramaniam died intestate, all
the class-I heirs of late K.M. Subramaniam including his daughters are entitled to equal share in the properties left by him. Therefore, according to
her, the plaintiff is not entitled to 1/5th share.
The 10th defendant in her written statement has stated that K.M. Subramaniam, who was employed in Binny & Co. had acquired the suit
property, utilising his personal earnings and therefore, the property cannot be treated as ancestral, by any stretch of imagination. According to her,
she along with other class-I legal heirs of late K.M. Subramaniam, are equally entitled to claim share, in the suit property and ignoring this fact, the
plaintiff cannot claim 1/6th share treating the suit property as ancestral one against the fact.
The 12th defendant is the daughter of Rukmani Krishnan. Adopting the written statement filed by D9 & D10 she claims that she is entitled to 1/3
rd share in the property of her mother.
On the above pleadings, framing the following issues, the trial went on before the trial Court:
(i) Whether the plaintiff is entitled for partition and possession of 1/6th share in the suit property?
2) Whether all the sons and daughters of late Subramaniam are not legal heirs and for equal share in the suit property as per Hindu Succession
Act?
3) To what other relief?
The plaintiff examined himself as P.W.1, seeking aid from Ex.A1, copy of the sale deed dated 11.1.1950. The sisters of the plaintiff by name
Radha Subramaniam (D10) and Mrs. Geetha Viswanathan (D9) had been examined as D.W.1 & D.W.2 respectively.
The learned II Additional Judge, City Civil Court, analysing the facts and circumstances of the case, as well as scanning the materials placed
before him, came to the conclusion, that the suit property is not the ancestral property, as claimed by the plaintiff and some of the defendants,
whereas it is the self acquired property of late K.M. Subramaniam, that the plaintiff, his brothers and sisters, totalling 11, being the class-I heirs are
equally entitled to a share, since the owner of the suit property viz., K.M. Subramaniam died intestate in the year 1977. In this view, the trial Court
had declared that the plaintiff is entitled to 1/11th share, D2, D4 to D11 are entitled for 1/11th share each, whereas D12 & D13 together are
entitled for 1/11th share. The preliminary decree declaring the shares of the parties is not to the satisfaction of the plaintiff and therefore, he is
challenging the Judgment and decree of the trial Court in this appeal.
Heard the learned counsel for the appellant and the learned counsel for the contesting respondents.
The learned counsel for the appellant submits that the suit property originally belonged to the family as ancestral property, since the same was
purchased utilising the ancestral income, in which case, the plaintiff is entitled to 1/6th share, which is erroneously rejected by the trial Court.
Opposing the above contention, the learned counsel appearing for the contesting respondents submits, that there is no iota of evidence, to conclude
or to establish that the suit property originally belonged to the family of K.M. Subramaniam, as ancestral property, whereas there are abundant
materials and evidence, to fix the seal, that the suit property belonged to K.M. Subramanian, as his self acquired property and in this view, since he
died intestate, his class-I heirs are all equally entitled to a share, which was rightly recognised, accepted and declared by the trial Court, granting
preliminary decree, which is not liable to be disturbed.
The learned counsel appearing for the legal representative of the deceased third defendant, Mr. V.R. Sridharan submits, that the property
though purchased by K.M. Subramaniam, it was more or less dedicated to the trust viz., Sree Saradha Educational Trust, which was founded by
K.M. Subramaniam, and the trust alone is in enjoyment of the property, having constructed buildings, running school, which could not be
disturbed, under the guise of division, by the heirs of K.M. Subramaniam, the fact being the property is not available for division.
From the above pleadings and the submissions made by the learned counsel for the parties, the only point that arises for consideration in this
appeal is:-
Whether the suit property is the ancestral property or the self acquired property of K.M. Subramanian? If so, what is the share the parties are
entitled to?
The subject matter of the suit is an extent of 3 "" grounds, comprised in T.S.No.5970, corresponds to New Survey No.141/3 and 141/7,
situated at Ramanujam Street, Madras-17. Indisputably this property was purchased by K.M. Subramaniam under the original of Ex.A1 on
11.1.1950. K.M. Subramanian died intestate, admittedly, in the year 1977. The plaintiff and the defendants 1 to 10 are his class-I heirs. The
plaintiff & defendants 2 to 4 are the sons of K.M. Subramanian and the first defendant & defendants 5 to 9 are wife and daughters of K.M.
Subramanian, respectively. After the death of the father, the appellant/plaintiff claiming 1/6th share, without giving any details, how this share was
concluded, has filed the suit for partition and separate possession of the said share, which was opposed as detailed above.
As rightly submitted by the learned counsel for the contesting respondents, practically, there is no plea in the plaint, to say or even to make an
attempt, to construe, that the suit property is the ancestral property. In paragraph-3, it is stated,
The plaintiff states that his father late K.M. Subramaniam has purchased the suit property in and by a registered sale deed dated 11.01.1950 ....."".
It further says, that the said K.M. Subramaniam has been possession and enjoyment of the suit property, ever since from the date of purchase, till
he died in the year 1977. Paragraph-4 of the plaint would suggest, that the plaintiff as well as other defendants viz., the legal heirs of K.M.
Subramanian were also in possession and enjoyment of the suit property, thereby showing that all the legal heirs of K.M. Subramaniam are entitled
to a share in the suit property. The position being so, it is not made clear in paragraph-6 of the plaint, where 1/6th share is claimed, how the
plaintiff is entitled to such a share. Therefore, on the basis of the pleadings, it is impossible to say, or even to think that the suit property is the
ancestral property of the family, which was in the hands of K.M. Subramaniam.
The learned counsel for the appellant submits, that since the plaintiff had claimed 1/6th share in the suit property, it should be presumed that he
had described the suit property, as the ancestral property. This presumption sought, in our considered opinion, is not at all available to the plaintiff.
The fact that the plaintiff had calculated the share wrongly or under some misapprehension, would not lead the Court, to take a view, that the
plaintiff had branded the property as ancestral property, unless such a plea is made expressly or at least impliedly, without giving a chance to take
contra view. The entire reading of the plaint would suggest, that the property was owned and possessed by K.M. Subramanian only as his self
acquired property, though it is not said so in letters. As hereinbefore mentioned, the plaintiff has repeatedly stated, that he and the defendants are in
possession and enjoyment of the suit property till this date and the defendants when approached for division failed to concede the same, thereby
compelling him to file the suit for partition. The averments in the plaint undoubtedly would suggest that the plaintiff had conceded the right of the
defendants also, though the plaintiff would state in paragraph-5, that the defendants 5 to 10 are not entitled to any share, in the suit property, since
they were already married before 1970.
No law says that the daughter of a person, who owned the property, married before 1970 is not entitled to any share, unless it is established
that daughter''s share in the property left by the father had extinguished, under the process known to law. It is not the case of the plaintiff, either in
the pleadings or as P.W.1, that her sisters have relinquished their rights or abandoned the rights or their rights have been extinguished, by efflux of
time. In the absence of any such pleadings, the pleadings available in the plaint alone, are sufficient to conclude, as rightly did by the trial Court, that
the suit property is not the ancestral property of K.M. Subramanian, whereas it should be his self acquired property. Even assuming the worst,
taking as ancestral property (not so), since father died intestate, the daughters also will be entitled to some share, in the share of the father, which
could not be denied.
The learned counsel for the appellant further submits, that the written statement filed by the first defendant lends support to the claim of the
plaintiff, to label this property, as ancestral property. The first defendant, who is the wife of the deceased K.M. Subramaniam, died, after the filing
of the written statement. In the written statement, she has stated that her father in law had sold a house at Kozhikode and having that fund, he
started a business at Gobichettipalayam, which was managed by K.M. Subramaniam and his two brothers. It is further stated, that in the year
1950, there was some kind of settlement between the brothers, in which a sum of Rs.10,000/- has been given to K.M. Subramaniam, which was
the source for the purchase of the property under Ex.A1. In this view, the pleadings would suggest, that the first defendant has stated that the suit
property should have the character of ancestral in nature. The plaintiff having failed to plead all these things in the plaint, falls back upon the
statement of the mother, in order to establish the nature of the property.
The learned counsel for the appellant submits, that the statement of the first defendant would come within the ambit of Section 32(3) of the
Indian Evidence Act, hereinafter called ''the Act'') which is now admissible in evidence, in view of the fact that the first defendant died. The first
defendant had made a statement, according to the learned counsel for the appellant, against her interest in the suit property. According to him, if
the suit property is the self acquired property of K.M. Subramanian, she would be entitled to equal share, along with her sons and other daughters,
whereas if it is the ancestral property, she would be entitled to only a lesser share. Against her interest, the first defendant had made a statement
and therefore, this should attract Section 32(3) of the Act, is the submission of the learned counsel for the appellant. Section 32(3) reads:
When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have
exposed him to a criminal prosecution or to a suit for damages.
By going through the above Section carefully and the legal position, we are unable to persuade ourselves, to accept the submission of the
learned counsel for the appellant, that the statement as such alone is relevant to decide the character of the suit property. Under sub section 3 of
Section 32 of the Act, the statement may be relevant, if true, it would expose her or would have exposed her to a criminal prosecution or to a suit
for damages and nothing more. Here, we are concerned about the character of the property viz., whether the suit property is the self acquired
property of the deceased K.M. Subramaniam or the ancestral property. In the written statement of D1, though she has said against her interest, the
same will not come within the ambit of Section 32(3) of the Act. If a person, who had filed the written statement, died, the averments made in the
written statement, cannot be taken as the conclusive proof, to establish the averments made therein or the character of the property, unless it is
corroborated and substantiated by other materials. In this case, except the ipse dixit of P.W.1-the plaintiff, we find nil evidence to support the
submission of the ancestral property, or the statement of D1.
The plaintiff as P.W.1 would admit, that there is no averment in the plaint, indicating the ancestral character. It is the further admission of
P.W.1 that he has not produced any scrap of paper, to prove the ancestral character. The plaintiff, forgetting his case, had given evidence on the
basis of the written statement filed by the mother. If the statement filed by the first defendant is true, there is every possibility for the plaintiff to
prove the same, by adducing substantial evidence. The first defendant had stated, that the property of her father-in-law at Kozhikode had been
sold and utilising the balance of sale consideration, a hotel business had been started at Gobichettipalayam. The property at Kozhikode, had been
sold by the father in law, it must be only under a registered document. Nothing prevented the plaintiff, to produce the sale deed, thereby showing
that the father of K.M. Subramanian had sold the ancestral property and that sale consideration alone should have been utilised, for starting a
business at Gobichettipalayam. No description of property at Kozhikode is given in evidence. Even to prove that K.M. Subramanian had a hotel
business at Gobichettipalayam along with his brothers, we find nil evidence. Further, the so called arrangement or agreement under which a sum of
Rs. 10,000/- said to have been given to K.M. Subramaniam, remain as dead letters, for want of evidence. Thus, viewing the case from this angle
also, the case so pleaded in the written statement of the first defendant, which is not pleaded in the plaint, regarding the character of the property as
ancestral one, stands unproved.
It is the common case of the parties that K.M. Subramaniam had purchased the property on 11.1.1950 under the original of Ex.A1. When a
property stands in the name of a person, the general presumption is that he is the owner of the property, unless the contrary is proved. The burden
is on the person, who claims contra. In this case, the plaintiff and the first defendant made an attempt to say that the suit property should have the
character of ancestral property i.e. against the tenor of the document. The plaintiff having taken the burden of proof on his shoulder, miserably
failed in his attempt and therefore, we have no option except to hold that the property purchased under Ex.A1 is the self acquired property of
K.M. Subramaniam.
It is in evidence that K.M. Subramaniam was employed as an executive in the Binny Mill, at the time of purchase. It is also in evidence that he
was a respectable citizen of that area, having elected as an M.L.A. for a term and holding some other post attached to the temple, etc. Thus, it is
seen K.M. Subramanian was a man of means, commanding respect. It is also admitted, that K.M. Subramanian had acquired properties in his
name and they were treated as his separate properties, sold, sale proceeds shared among the heirs, including daughters. This would suggest K.M.
Subramanian ought to have purchased the suit property also, only from his separate earning and this purchase had nothing to do with the joint
family or its so called nucleus. In this case, neither the existence of nucleus, nor its capacity to generate sufficient income, for the acquisition of the
subsequent property is proved, which should follow K.M. Subramanian should have purchased the property, only from his earning. At any stretch
of imagination, it cannot be said that joint family nucleus was utilized, for the purchase of the property, so as to brand the same, as joint family
property or ancestral property. It is also not the case of the plaintiff, though K.M. Subramanian purchased the property, it was treated as the joint
family property or by the joint enjoyment of all the family members together, as joint family property, for which K.M. Subramaniam had not raised
any objection, thereby Ex.A1 property acquired the character of joint family property. Viewing the case from any possible angle, in our considered
opinion, the irresistible conclusion should be that the suit property is the self acquired property of K.M. Subramanian. Admittedly K.M.
Subramanian died intestate and therefore, all the Class-I heirs of K.M. Subramanian including the daughters are entitled to equal share, which was
rightly upheld by the trial Court, not warranting any interference by this Court. Hence this point is answered accordingly.
The submission of Mr. V.R. Sridharan, learned counsel appearing for the 9th respondent is, that the property is not available for division, since
K.M. Subramaniam, who is the founder of the Trust, himself had sought to transfer the suit property, to the Trust, by name, Sree Sharada
Educational Trust. The so called existence of the Trust and the management of the suit property by the Trust are not pleaded by any of the
contesting defendants, as seen from the available written statements. Though the 9th respondent has been impleaded as D11 in the suit, he has not
filed any written statement, questioning the partition claimed by the plaintiff, as well as the defendants.
In the written statement filed by the second defendant, there was an attempt to say, that the Trust by name, Sree Sharada Education Trust has
been formed in the year 1964, which had put up additional buildings in the land. There also, it is not the case of the second defendant that the
property is not available for partition, since the wishes of the founder Trustee has to be honoured. On the basis of the said pleading, Mr. V.R.
Sridharan would contend, that the substance of the pleading was clear, that the second defendant had raised a plea, that the suit property is in the
custody of the Trust, thereby impliedly saying, the same is not available for partition, seeking aid from the decision in Ram Sarup Gupta (Dead) by
Lrs. v. Bishun Narain Inter College 100 L.W. 1102. By going through the above judgment carefully, we are of the view, that the same is not
lending any support to the 9th respondent, since his predecessors-in-interest had claimed share specifically.
The 9th respondent/D11 though had an opportunity to contest the case, has not even chosen to get into the box. He has also failed to produce
the materials to show, that the property is vested with the Trust, fulfilling the wishes of the original owner, which was recognised by all the sharers
and in that event, by their acquiescence and conduct, the parties are not entitled to claim any share. It is said, the plaintiff and some of the
defendants had been the Trustees of the Trust and managing the school, etc. If the plaintiff had been the one of the Trustees, recognising that the
property is indivisible, vested with the Trust, he would not have filed the suit for partition and other Trustees, if they acted so, would not have
claimed any division. On the other hand, including all the heirs of K.M. Subramaniam, whether they are class-I or otherwise, have claimed share in
the suit property, thereby ignoring the Trust said to have been created, which should follow, the property is available for partition. In the absence of
materials, Mr. V.R. Sridharan is not entitled to urge the point, such as in a way, the suit property (land) belongs to the Trust, the school, which is
run in the property should be preserved or the property, which was acquired by K.M. Subramaniam is not available for partition. In this view of
the matter, we refrain from giving any definite finding on the submission made by Mr. V.R. Sridharan.
The trial Court, considering all the facts and circumstances of the case, as well as the nature of the property, based upon evidence, has reached
an unerring conclusion, which deserves acceptance and in this view, the appeal is devoid of merits and the same is liable to be dismissed.
The appeal is dismissed, confirming the decree and Judgment of the trial Court in O.S. 1676 of 1997, with costs of the contesting respondents.
C.M.P. Nos. 17940/2003, 7398/2004 and 11926 of 2004 are closed.