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Judgment
Prabha Sridevan, J.—The plaintiff is the 1st appellant (now deceased). The suit is one for partition. According to the plaintiff, the plaintiff
and Kuppachi Reddiar (K), the father of the 1st defendant (now deceased) were brothers and constituted a joint family. There existed an ancestral
nucleus and from the income generated by joint exertion in the properties taken on lease in the name of K, the suit properties were purchased. The
suit properties are liable to be partitioned. The respondents / defendants filed an earlier suit where they admitted the existence of joint family
property. Subsequently, before Panchayatdars, the parties divided the properties. K died on 15.2.1970 and it was only the plaintiff''s son and
another who took him to the hospital and brought him back after the death. Though the acquisitions were made by joint effort, the properties were
in the name of the eldest member of the family namely K. The suit filed by the respondents claiming exclusive possession was dismissed.
In view of the hostile attitude taken by the respondents, the plaintiff filed the suit for partition against defendants 1 to 5 who are the respondents
1 to 5. The 1st respondent is the son of Kuppachi Reddiar, who is now dead. The 2nd respondent is Kuppachi Reddiar''s wife and respondents 3,
4 and 5 are the daughters of Kuppachi Reddiar. Respondents 6 to 8 are the legal representatives of the 1st respondent. The 1st defendant alone
filed written statement denying the claim made in the plaint. According to the written statement, the 1st appellant was not a co-owner. There was
no ancestral nucleus. There was no joint ownership nor joint possession. There was no joint family. The brothers got divided about 23 years ago.
There was no joint exertion and no occasion for joint purchase or joint labour and for joint earning. There was no decision of Panchayatdars and
no concluded mediation. The dismissal of the earlier suit is not final. The alleged Panchayat division is false and not tenable. The suit has to be
dismissed.
The 1st defendant remained exparte. The trial Court dismissed the suit holding that the properties were the self-acquired properties of Kuppachi
Reddiar and therefore, the plaintiff was not entitled to any share.
The questions that arise in this first appeal are whether there was a joint family, whether the properties were purchased out of the funds
generated by the joint family nucleus or by the income from joint exertion, whether the alleged panchayat division is true and whether the appellants
are entitled to a decree for partition.
Mr.S.Parthasarathy learned counsel for the appellants would submit that there was a clear admission by the 1st defendant that there was joint
family property in the earlier suit in O.S.123/70. He had clearly pleaded that the ancestral joint family properties were divided between the two
brothers and each was enjoying a separate share. Therefore, it is not open to the defendants to contend now that there is no joint family nucleus.
He referred to several decisions to show that when the admissions are unambiguous and clear, they will bind the parties, especially admissions in
pleadings. It was also submitted that as many as 7 witnesses had been examined as plaintiff''s witnesses and they had all spoken of the existence of
joint family nucleus and therefore, there was no justification for the trial Court to reject the suit for partition. It was also pointed out that issue no.4
which is ""Whether the father of the 1st defendant and the plaintiff got divided 23 years ago as alleged in the written statement"" was not answered
by the trial Court at all and this was crucial. When the defendants had pleaded that there was a division of the ancestral properties in the written
statement, then the Court below ought to have given a finding regarding the same and the failure to consider and decide this issue vitiates the
judgment. It was also submitted that the trial Court erred in holding that there was no proof of joint family exertion when in the pleadings and in the
evidence it had been demonstrated amply. Ex.A4 Panchayat partition was also relied upon by the learned counsel. It was submitted that the suit
claim was not based on Ex.A4 but Ex.A4 is a piece of evidence which supports the case that there was a joint family and there were joint family
properties and there was a division before the Panchayat and atleast to that extent, this document ought to have been looked into. The Court
below had erred in refusing to look at Ex.A4. It was also submitted that the very fact that some of the documents were in the custody of the
plaintiff would also show the nature of joint family property. The following decisions were relied on:
(1) AIR 1925 132 (Privy Council)
(2) ILR 1920 42 All 368
- NAGESHAR BAKHSH SINGH vs. GANESHA
(3) N. Raghavendra Rao Vs. Deputy Commissioner, South Kanara, Mangalore,
(4) Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe and Others,
(5) Kondiram Bhiku Kirdat Vs. Krishna Bhiku Kirdat (Deceased by L.Rs.),
(6) Sher Singh and others Vs. Gamdoor Singh,
(7) Chandreshwar Singh and Others Vs. Ramchandra Singh and Others,
(8) Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others,
(9) Mallesappa Bandeppa Desai and Others Vs. Desai Mallappa and Others,
Mr.S.Desikan learned Senior Counsel appearing for the respondents on the other hand would support the judgment and decree of the trial
Court. It was submitted that there was no evidence of nucleus. The plaint merely stated vaguely that there was ancestral nucleus. The plaintiff had
not even taken pains to prove the existence, identity and character of the joint family nucleus. There was no proof of joint cultivation. The evidence
revealed that the tax was paid in the name of K. The pleadings that the earlier purchase purchase in the name of K in 1959 from out of joint family
funds was the source of subsequent purchase was proved wrong because it is in evidence that the first purchase in the name of K was in the year
1938. He would submit that Exs.B3, B4, B6, B7 and B8 are all prior to 1959. In the evidence of P.W.9 the son of the plaintiff it was admitted that
he and his father did not help the senior uncle K in cultivation. Even during the lifetime of K both the families had held properties separately. It was
not open to the plaintiff to contend that while the properties in his name were his separate properties, the property in the name of K his elder
brother was joint family property. The dismissal of the earlier suit would not really come to the aid of the plaintiff since Ex.B104 which is the
judgment in the appeal against the earlier suit would show that the earlier suit was allowed to be dismissed for default only because this suit had
been filed in the meantime. The learned Senior Counsel would submit that Ex.A4 cannot be looked into since it is the deed under which the parties
claim title and it is neither stamped nor registered. The custody of original documents were with the plaintiff only because his son accompanied K
to the hospital at the time of the death, the first defendant being a very young boy at that time. So nothing turns on the fact that the plaintiff
produced certain documents of title. He would also submit that the Panchayat partition Ex.A4 cannot bind the parties since the other respondents
herein who also had a right in the properties had been totally ignored. It was also submitted that a self-acquired property cannot become a joint
family property on the basis of any admission since admission cannot pass title and a joint family is a creature of law. It was also submitted that
Ex.A4 itself shows an unequal division which was sought to be explained by the plaintiff by stating that since the plaintiff got some lands from his
mother-in-law, he agreed to a lopsided division. The learned Senior Counsel would submit that this was implausible.
The following decisions were relied on:
(1) M. Manohara Chetty and Others Vs. C. Coomaraswamy Naidu and Sons,
(2) ILR 52 Mad 83
- JOGI REDDI vs. CHINNABBI REDDI
(3) A.I.R 1937 Mad 538
- VENKATRAMAYYA vs. SESHAMMA
(4) Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh,
(5) A.I.R 1929 PC 1
- ANNAMALAI vs. SUBRAMANIAN
(6) A.I.R 1938 Mad 841
- VYTHIANATHA vs. VARADARAJA
Kandaswami Chettiar and Others Vs. Gopal Chettiar and Others,
(8) K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna Iyer and Others,
(9) A.I.R 1945 Mad 62
- JANIKAMMA vs. V.RAJAGOPALA
(10) AIR 1930 39 (Oudh)
(11) A.I.R 1984 SC 1171
- K.OBUL REDDY vs. B.VENKATA NARAYANA REDDY
(12) G. Narayana Raju Vs. G. Chamaraju and Others,
(13) K.V. Narayanan Vs. K.V. Ranganandhan and Others,
(14) Lakkireddi Chinna Venkata Reddi Vs. Lakkireddi Lakshmama,
C. Sundaram Vs. Rukmani Ammal and Others,
(16) 2001 (2) CTC 12
- PANDI,D. vs. THE DHANALAKSHMI BANK LIMITED
(17) H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others,
(18) V. Venkataswamy and Others Vs. V. Radhakrishna Reddi and Others,
Finally the learned counsel would submit, no case can be won on the basis of the weakness of the defendants'' case and the plaintiff has to win on
the merits of his own pleadings.
(a) Admissibility of Ex.A4 :
Ex.A4 was relied on by the plaintiff to show the existence of joint family properties and the fact of partition. It was further urged that even if it could
not be accepted as evidence of the fact of partition in view of non-registration, atleast, it could be relied on for the collateral purpose of showing
that the parties treated the properties as their joint family properties liable for division. This document is neither stamped nor registered. To what
extent it can be relied on will depend upon the nature of the document. The document reads thus:
@1970?k; Mz;L Vg;uy; khjk; 6e; njjp er;rY}h; /K/ Fg;ghr;rp bul;oahh; kfd; Kk;ghr;rpf;Fk; /K/ bu'';frhkp bul;oahUf;Fk; fPH;f;fz;lth; Kd;dpiyapy;
ghfg;gphptpid bra;J bfhz;lhh;fs;/@
There is no averment regarding the existence of joint family properties nor is there anything to show that there was a dispute which was resolved by
the Panchayat. But what is evident is, it is this document which is the source of title. In 2000 (2) TLNJ 315 (A.C.LAKSHMIPATHY &
ANOTHER vs. A.M.CHAKRAPANI REDDIAR), a Division Bench of this Court has held that such a document cannot be looked into for any
purpose because it is neither stamped nor registered. It was held therein that where the parties reduce a family arrangement in writing with the
purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that
document would require registration. But a document which is in the nature of a memorandum evidencing a family arrangement already entered into
and prepared as a record, it need not be stamped or registered. But a reading of this document would show that under this document, the
properties were divided. So, this document was intended to create the separate rights in the immovable property and therefore, it is not admissible
in evidence and Courts cannot also let in any oral evidence with regard to such a document. Ex.A4 is not admissible in evidence, and cannot be
relied on.
(b) Effect of admission in earlier proceedings and in pleadings:
In the written statement the following averments are found:
The father of this defendant and the plaintiff got divided as stated in the original plaint, about 23 years ago. The allegations in the earlier plaint
O.S.123/70 are true.
This was relied on to show that there is an admission of joint family properties since in the plaint in O.S.123/70, which was marked as Ex.A65, it is
stated thus:
. . . the ancestral joint family properties were divided between the two brothers and each was enjoying exclusively without the concern of the
other his respective properties allotted in the partition. After the partition the father of the 1st plaintiff was living separate from his brother the 1st
defendant.
The plaintiff in O.S.123/70 is none other than the 1st defendant / 1st respondent. In M. Manohara Chetty and Others Vs. C. Coomaraswamy
Naidu and Sons, :it was held thus:
The law by no means regards admissions as conclusive proof of the matters admitted. This is because to a Court of law admissions are but
statements which do not more than suggest an interference as to some fact or facts in issue. It is therefore, important that the Court should examine
any given admission inside out to see if it suggests any clear inference on the fact in issue against the party making it. For a Court to draw adverse
inference against a party on the basis of what he is stated to have admitted, the admission must be unequivocal. It must also be comprehensive. It
must go the whole-hog, as it were, on the point at issue. If a party''s admission falls short of a fact in issue, such an admission would be a truncated
admission. It follows that in such a case it cannot support a valid judicial determination, unless it be that the Court is in a position to find other
evidence before it to make up for the deficiencies in the admission.
In 1974 SC 471 (NAGINDAN vs. DALPATRAM), it was held thus:
Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible u/s 58 of the
Evidence Act made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The
former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the
foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the trial as evidence are by themselves not
conclusive. They can be shown to be wrong.
The question is whether the admissions made in the written statement in the present suit and in the plaint in the earlier suit would amount to
admitting the existence of ancestral nucleus and joint family property. It is relevant to note that in the evidence of D.W.1 the 1st defendant, several
contradictions were pointed out between his own evidence recorded in the earlier suit and in the present suit. Ex.B104 is the judgment in the
appeal filed against O.S.123/70. It is seen there that though the 1st respondent herein who was the 1st plaintiff in the suit had alleged in the plaint
that in the early partition in 1950 ancestral properties were divided, his evidence was otherwise. The following is the extract from the judgment:
The 1st plaintiff in his evidence as P.W.3 as well as the 1st defendant in his evidence as D.W.7 have admitted before the trial Court that the two
brothers had no ancestral properties, that is to say the father of the 1st defendant and Kuppachi Reddiar did not leave any properties. Therefore,
the question of partition alleged in the plaint becomes immaterial in this case. Even assuming that both brothers were living jointly, it is clear that the
family had no ancestral properties. Therefore, the defendants have taken the definite stand in the written statement that the suit items were acquired
out of joint exertion.
The defendants referred to above are the 1st and 2nd appellants herein. So, notwithstanding the so called admission in pleading, in the earlier suit,
the appellate Judge was not satisfied regarding existence of ancestral nucleus or joint family properties and even in that case, the respondents
herein had taken a definite stand that properties were acquired out of joint exertion. In 1970 (2) MLJ SC 127 (C.KOTESWARA RAO vs.
C.SUBBARAO), it was held thus:
Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement
made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. An admission made during cross-
examination must be read along with the evidence given in chief examination in a harmonious manner.
Therefore, it is not possible to conclude that the respondents herein had admitted existence of joint family property. The appellants will have to
prove the existence of ancestral nucleus or joint family property born out of joint exertion on the basis of other stronger materials. The pleading in
the written statement in the present case that the father of the 1st defendant and the plaintiff got divided about 23 years ago cannot be held to
support the case of the plaintiff either, since the existence of a joint family does not tantamount to existence of joint family property. So, none of the
so called legal admissions have the effect of defeating the respondents'' case.
(c) Existence of joint family property:
From the decisions relied on for the purpose of establishing the nature of property, whether it is self-acquired or not, the following important
principles can be identified:
A Hindu family is presumed to be joint. But at the same time there is no presumption that the joint family is possessed of family properties.
The manager, if he is in possession of family properties and is in management thereof and acquires any other property, the law presumes that it is
joint family property.
Even in such cases, presumption will arise only if it is shown that the family property had left surplus income out of which other properties could
be acquired.
Members of a joint family and even coparceners can without disturbing the status of the joint family or the coparcenery, acquire separate
property or run indivisual business for themselves.
Property acquired with self-exertion will be self acquired property, only when it is acquired without any detriment to the joint family property.
The question whether there is detriment will depend on the facts of the case.
Burden of proving a property is joint family property is on the person who claims it to be so. When possession of nucleus is admitted or proved
and when nucleus is adequate, then onus shifts to the acquirer.
In this case, though the plaintiff claims that there was an ancestral nucleus, it has already been seen that there is no proof of this ancestral nucleus.
The fact that the defendants had stated that the family was divided will really not advance the case of the appellants since there is no presumption
that a Hindu family which is joint is possessed of family properties. Therefore, even if the case of an earlier partition is not proved, it will not help
the appellants. There are clear indications regarding the properties being K''s individual properties. In the evidence of P.W.1, he had stated that his
grandfather had no ancestral property, the lands were taken on lease only by K, the lease amounts were given by K, he assisted his elder brother
and that his elder brother purchased the property by borrowing from one Ramanatha Iyer, the promissory notes were executed only by the elder
brother and discharged by him and that he (the plaintiff) is not paying agricultural income tax, the patta is in K''s name who is also paying the kist
etc. It is also his evidence that the income from the property in the name of his elder brother is separate as also the income from the property in his
name and his wife''s name. The evidence of P.W.2 is also not helpful since he appears to be ignorant of who took the properties on lease. He
speaks of Ex.A4 and it has already been seen that Ex.A4 being inadmissible in evidence, the oral evidence cannot be looked into. In addition,
P.W.2 in his cross-examination has stated that when the plaintiff''s wife and children sold the property in their name, they received the sale
consideration and when Kuppachi Reddiar sold his property, he received the sale consideration. He does not know anything about Kuppachi
Reddiar purchasing the property by borrowing loans. As regards P.W.3''s evidence, this also relates more to Ex.A4 and he has also stated that
those who cultivated the properties from Nangavaram pannai bought the properties. Therefore, this only reinforces the respondents'' case that
Kuppachi Reddiar alone cultivated the properties and purchased the properties in his own name. As regards P.W.4''s evidence, he had said in his
chief-examination that the plaintiff also worked in the lands, but in his cross-examination, he admits that he has no direct knowledge. P.W.5''s
evidence is that the plaintiff and K worked jointly in the lands and the income was with the elder brother namely K, but in cross-examination, he
admits that he has no direct knowledge. P.W.6 is the sister of Kuppachi Reddiar and the 1st appellant. According to her, her father had 40 acres
of pannai lands. This is her statement in chief examination. But in her cross-examination, she says that she does not know how much land were
taken by her father on lease and she does not know about the income generated from that property. A suggestion has been made to her regarding
the reason why she has offered to give evidence against K. P.W.7 has admitted that if patta is in the name of a person as the manager or karta of
the joint family, the patta will reveal that. But in the patta given to K, it does not show that it is in his capacity as karta of the joint family. He has
also stated that he knows that both the brothers cultivated the lands, but he does not know about the income therefrom. P.W.9 is the son of the 1st
appellant and it is his categorical statement that only Kuppachi Reddiar, his uncle took the land on lease and his father did not help him and only the
uncle would remit the lease amount and that his parents would not give the income from the properties in their name to the uncle, the uncle alone
would purchase the fertilisers etc. So, it is clear that there is no satisfactory proof regarding joint efforts. Even assuming that the plaintiff was
cultivating the lands in that area, it must be remembered he also had 10 acres of lands. Joint efforts by the two brothers and purchase of properties
with the income generated from that activity must be proved. In C. Sundaram Vs. Rukmani Ammal and Others, :the Division Bench held thus:
Where a business was in its origin the exclusive business of the father, whether that business came to acquire a joint family character would
depend on the nature of the help or assistance given by the son. It is not every act or work done or assistance given by a son to the father in the
conduct of the business that will make the business a joint family business. If the work done or assistance given by the son is such as to lead to the
inference that the father had intended to treat his exclusive business as a joint family business, then alone the presumption of joint business could be
invoked. In invoking such a presumption the joint exertion by the son with his father should be such that the father could be said to have intended
to treat the business as belonging to both, or to the joint family.
There is nothing on record to show that the work done or the assistance given by the younger brother namely the plaintiff was of such a nature as
to make the income generated from the agricultural lands as a joint family income. The mention of ancestral nucleus will also not come to the aid of
the appellants because it is well settled that even if there is a joint family property, it must be from its nature and relative value capable of forming
the nucleus from which subsequent properties could have been acquired. There is no such evidence in this regard. So the case that there was joint
family property is not proved.
(d) Earlier Partition:
Chandreshwar Singh and Others Vs. Ramchandra Singh and Others, :was relied on by the plaintiff to show that when the defendants have come to
Court with a case that there was a partition, the burden of proving the separation is on them. But regardless of whether there was a separation of
the joint family or not, there is no proof that the suit property is joint family property. In the same decision, it has also been stated that the
acquisition of properties in the names of different members is not necessarily inconsistent with jointness, because it is firmly established that
separate acquisitions by separate co-parceners of a joint Mitakshara family are not evidence of separation and are perfectly consistent with the
jointness of the family. AIR 1925 132 (Privy Council) was relied on to show that it was necessary to prove the separation. The Court below did
not accept that there existed joint family property and therefore failure to decide earlier partition will not advance the case of the plaintiff. Even if
the partition alleged to have taken place 23 years ago is not proved, that cannot make the self-acquired property of K divisible as joint family
property.
The Court below has considered the nature of the properties from all angles. Since there is no proof of ancestral nucleus, the question of
blending also does not arise. There is no proof of joint exertion. Therefore, the properties in the name of Kuppachi Reddiar must be held to be his
separate property. The evidentiary value of the alleged admissions have also been dealt with properly. So there is no scope for interference. In
these circumstances, the first appeal fails and is dismissed. No costs. The judgment and decree of the lower Court is confirmed.