No Injunction against Karta against selling jt family property.

In this case the court reiterated the posittion that there can be no blanket injunction against Karta restraining him from alienating the properties for the simple reason that :-

i) There is an equally efficacious relief in getting sale set aside;

ii) Karta’s powers are statutory and he is the person who has to judge the pressure on property and to see the benefit of estate or legal necessity at a particular point of time; 

iii) The apprehension was vague and no particular transaction was put to the notice of court to justify it’s interference. 

 

Rajasthan High Court
Kailash Chand vs Bajrang Lal And Ors. on 1 November, 1996
Equivalent citations: AIR 1997 Raj 205, 1997 (1) WLC 38, 1996 (2) WLN 623
Author: M Mukherji
Bench: M Mukherji

ORDER

M.G. Mukherji, C.J.

1. Plaintiff is petitioner before me impugning an order dated 19-9-95 passed by the learned Addl. Distt. Judge, Bundi in Civil Misc. Appeal No. 72/94 whereby the lower appellate court rejected the appeal of the petitioner and upheld the order dated 22-11 -94 as passed by the learned Civil Judge (Sr. Division), Nainwa in Case No. 1/94.

2. Plaintiff filed a civil suit against his parents alleging inter alia that there existed certain ancestral properties comprising of agricultural land as well as ancestral house situated in Village Alod details of which were given in para 4 of the plaint. He claimed that he had half share along with his younger brother Kishan Lal and that in all these properties, he was a co-owner. His further contention inter alia was that he and his father were also co-owners of gold, silver and jewellery belonging to the family which had been purchased from the income of the immovable properties of the family and are lying in Locker No. 67 of the State Bank of Bikaner and Jaipur, Old Dhan Mandi Branch, Bundi, which was being operated jointly by the defendants and the locker stands in their own name. It was also submitted that the jewellery belonging to the plaintiff petitioner’s wife was also lying in the aforesaid locker and that the plaintiff was the co-owner of these articles also. Further averment was to the effect that the plaintiff had been residing with his parents since 1955 when he was adopted by them and since then, he has been in continuous possession along with his adoptive father and had been using the same. His adoptive parents on account of their old age have become unduly influenced by certain relatives who pressurized them so as to divest the plaintiff from the properties in question. It was also submitted that on account of the old age of his adoptive parents, the plaintiff had been looking after the properties and for the last ten years, he had been maintaining separate accounts himself. There was an attempt to dispossess him from the property and deprive him of the use and occupation of the same and that the adoptive parents are bent upon transferring the same. It was also submitted that the adoptive father defendant No. 1 had also sold a part of the agricultural land on 29-9-92 without informing the plaintiff and the said property had been sold out to one Bhanwar Lal. Plaintiffs submission inter-alia is to the effect that his adoptive father was not authorised to dispose of the property in such a manner as was done by him and therefore, there should be a permanent injunction against both his adoptive parents. The application for temporary injunction which was filed by the plaintiff petitioner was contested by his adoptive father and mother who admitted that the plaintiff was their adopted son but they denied that he had any share in the properties. It was submitted that the petitioner had no share in the properties and that the property had been recorded in the name of the defendant No. 1 Bajrang Lal alone. In relation to the house also, it was denied that the petitioner had any share therein. It was also submitted that no jewellery belonging to the plaintiffs wife was with them and the locker also did not contain any such jewellery. The jewellery which was given to defendant No. 2 was her own ‘Stri Dhan’ which had been kept in a locker for their own safety. It was submitted that the defendant No. 1 was the ‘Karta of the Hindu Un-divided Family who had been carrying out all expenses for the upkeep of the family. Plaintiff had been living with his natural father for the last ten years and was not looking after the adoptive parents and he was not entitled to any relief.

3. On behalf of the plaintiff, an affidavit of the plaintiff as well as a photostat copy of the Adoption Deed and the revenue records were submitted while on behalf of the defendant Nos. 1 and 2 their affidavits and the affidavit of one Nand Lal were submitted.

4. Learned Civil Judge (Sr. Division) held inter alia that it was established that the defendant No. 1 was the Karta of the joint family and therefore, he had a right to alienate the properties and also to remain in possession thereof. It was also held by the learned Civil Judge that the final decision was to be exercised by the Karta as to how he would be managing the properties. He further held that the Karta of the joint family could not be restrained from disposing of the property and no fetter by way of an injunction could be imposed and the only remedy that was available to the plaintiff would be in case of sale effected by the Karta, on which contingency plaintiff could claim a right on the property by way of filing a civil suit to get the sale deed annulled. It was held that from the pleadings, it was not borne out as to whom the property was being sold and hence, there was no occasion to restrain the defendant Nos. 1 and 2 from transferring the property. Plaintiff thereafter, filed an appeal before the learned Addl. Distt. Judge which has ultimately been dismissed by an order dated 19-9-95.

5. It has been contended by Shri Kamlakar Sharma, learned Advocate appearing for the petitioner that the orders as passed by the courts below are illegal, contrary to facts and not sustainable in law inasmuch as both the courts proceeded on the hypothesis that even though it was established that the plaintiff was the adopted son of the defendant Nos. 1 and 2 and that the defendant No. 1 was the Karta of the family in view of the property being ancestral property, the plaintiff would have share in the said property and that the said share could have been restrained by an order of injunction from being sold out or disposed of to third parties inasmuch as there was a prima facie case for an order of ad interim injunction. That case was very much overlooked by either of the courts below and at least a share in the property that belonged to the plaintiff ought to have been safeguarded and that the defendant No. 1, even though he was the Karta of the joint family, could have been restrained from disposing of the property which included the share of the plaintiff petitioner.

6. It was further contended that the plaintiff had clearly established that even on 29-9-92 the defendant No. 1 had sold some agricultural land in favour of one Bhanwar Lal and that it was thus established that there was every apprehension that the defendants No. 1 and 2 might also sell other properties belonging to the joint family. A clear case for obtaining the relief of temporary injunction against the defendants was therefore made out and it was also necessary to protect the interest of the plaintiff who had share in the ancestral property.

7. It was further averred that both the courts below have erred in holding that the Karta of the family could not be restrained from transferring any land belonging to the joint Hindu family just because he was the Karta who had to decide as to how and in what manner the properties would be managed and that the only remedy available to a person, who was a co-sharer in the joint family properties was to file a civil suit for cancellation or annulment of the sale deed in case such a sale was effected. It was submited by the learned Advocate for the plaintiff that the courts below proceeded on a misconceived idea of law in this respect and since the plaintiff had a prima facie case, the courts below ought not to have relegated him to the position of filing a suit after the sale was actually made effective and the courts below ought to have restrained the defendants from transferring the properties to third parties.

8. It was further contended that the defendants had executed an Adoption Deed and also admitted the plaintiff as their son and he was as such entitled to a share in the property. In that context, there was no occasion for the courts below to have refused to grant temporary injunction, more so, when it was clearly proved from the records that for the last ten years, the plaintiff had been managing these properties and had been maintaining separate accounts therefor. The Courts below have failed to consider that the defendant Nos. 1 and 2 had intentions which were not just and proper and even though the plaintiff was their adopted son, an FIR was lodged against him alleging the offences under Section 447 and 379, I.P.C. It was therefore clearly proved that not only a prima facie case was there but the balance of convenience as also the question of irreparable loss and injury justifying an order of temporary injunction was very much there. It would not be possible on the part of the plaintiff to claim back the property and on the contrary, there would be multiplicity of proceedings, if the actual sale Of property was allowed to be made and the plaintiff would have to file a fresh suit for cancellation of the sale deed. It was further contended that by granting an order of injunction in favour of the petitioner, the defendants would not suffer any loss but even assuming that they were not contemplating to sell out the properties, a restraint order would not cause any harm to them but on the contrary, the defendants on selling out the properties could cause irreparable loss and injury to the plaintiff.

9. In Sunil Kumar v. Ram Prakash reported in AIR 1988 SC 576, it was held that a suit for permanent injunction by a coparcener against the father, a Karta for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity would not be maintainable because the coparcener had not the remedy of challenging to the sale and getting it set aside in a suit subsequent to the completion of the sale. It was further held that in case of waste or ouster an injunction may be granted against the Manager of the joint Hindu family at the instance of the coparcener but nonetheless a blanket injunction restraining permanently from alienating the property of the joint Hindu family even in the case of legal necessity, cannot be granted. It was then held that even though a co-parcener by birth takes an interest in the ancestral property but he is not entitled to separate possession of the coparcenary estate, his rights are not independent of the control of the Karta. It would be for the Karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted, and it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in the acts of the management. Apart from that, a father as Karta, in addition to the aforesaid powers of alienation, has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by the Karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the court to grant relief by injunction restraining the Karta from alienating the coparcenary property. The provisions of Section 38 of the Specific Relief Act have to be read along with Section 41 thereof. Section 41 provides that an injunction cannot be granted in the cases falling under Clauses (a) to (j), but Clause (h) thereunder provides that an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding, except in case of breach of trust. The coparcener has adequate remedy to impeach the alienation made by the Karta. He cannot therefore, move the Court for an injunction restraining the Karta from alienating the coparcenary property.

10. I do not think that the orders of the courts below call for any interference in revision. The revisional application stands dismissed. There will be no order as to costs.

Supreme Court on whether partition deeds are compulsory registrable ?

Comment : This case holds that partition – is a declaration of will as regards property – which effects a change in legal relation with property – hence is compulosrily registrable within the meaning of S.17 IRA. In absence of which it does not have any effect and cannot be recieved in evidence of the same. 
However in the peculiar facts of the case what the parties had was a mere family arrangment not compulsorily registrable (a mere recital of past facts – not by itself effecting a change in title) Hence was admitted sans registration 
 
Supreme Court of India
Roshan Singh & Ors vs Zile Singh & Ors on 24 February, 1988
Equivalent citations: 1988 AIR 881, 1988 SCR (2)1106
Bench: Sen, A.P.

PETITIONER:

ROSHAN SINGH & ORS.

Vs.

RESPONDENT:

ZILE SINGH & ORS.

DATE OF JUDGMENT24/02/1988

BENCH:

SEN, A.P. (J)

BENCH:

SEN, A.P. (J)

RAY, B.C. (J)

CITATION:

1988 AIR 881 1988 SCR (2)1106

1988 SCALE (1)391

ACT:

Registration Act, 1908: SS. 17(1)(b) & 49: Partition- Document containing list of properties allotted to parties- Recital of past events-Registration whether necessary- Whether admissible in evidence to prove factum of partition.

HEADNOTE:

%

The parties are decendants of a common ancestor, who had two sons. These two branches of the family had joint properties, both agricultural and residential. The agricultural land was partitioned in 1955 and the names of the respective parties were duly mutated in the revenue records. This was followed by a partition of their residential properties including the house, ghers, ghetwars etc. The factum of partition was embodied in the memorandum of partition Exh. B-12 dated August 3, 1955 and bears the thumb impressions and signatures of the heads of the families, and later confirmed in the settlement dated January 31, 1971, Exh. P-1 written in the presence of a number of villagers.

A dispute arose between the parties in February, 1971 when the respondents were sought to be prevented by the appellants from raising a boundary wall to a plot of land that had fallen to their share. In proceedings under s. 145 Cr. P.C., 1898, the Sub-Divisional Magistrate held that the father of the appellants was in actual possession of the disputed piece of land. In revision the Sessions Judge agreed with the conclusion arrived at by the Magistrate. On further revision the High Court affirmed the findings reached by the courts below.

In a suit for declaration brought by respondents a Single Judge of the High Court came to the conclusion that the disputed plot belonged to them and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January, 1971. He construed the document Exh. p-12 to be a memorandum of family arrangement and not an instrument of partition requiring registration and therefore admissible in evidence under the proviso to s. 49 of the Act for a collateral purpose of showing nature of possession. In a Letters Patent appeal a Division Bench of the High Court affirmed the reasoning and 1107

conclusion arrived at by the Single Judge. In the appeal by special leave, it was contended for the appellants that the document Exh. P-12 does not contain any recital of a prior, completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties i.e. according to which partition by metes and bounds had to be effected. It, therefore, required registration under s. 17 of the Registration Act.

Dismissing the appeal,

^

HELD: 1. Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts. It does not require any formality, and therefore if parties actually divide their estate and agree to hold in severalty, there is an end of the matter. [1115B- C]

2. If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of s. 17 read with s. 49 of the Registration Act as no interest in property is created or declared by the document for the first time. it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. [1116C-E] Sahu Madho Das & Ors. v. Pandit Mukand Ram & Anr., [1955] 2 SCR 22; Khunni Lal v. Gobind Krishna Narain & Anr., LR (1911) 38 IA 87 and Lalla Oudh Behari Lall v. Mewa Koonwar, [1868] 3 Agra HC 82 at p. 84 refereed to. In the instant case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Exh. P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. The parties set out competing claims to the properties and there

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was an adjustment of the rights of the parties. The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties. The opening words of the document are: ‘Today after discussion it has been mutually agreed and decided that …’ what follows is a list of properties allotted to the respective parties. From these words it is quite obvious that the document contains the recital of the past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated. It cannot, therefore, be construed to be an instrument of partition. [1116F-G; 1114C-D]

Section 17(1)(b) of the Registration Act lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some rights in immovable property. Therefore, a mere recital of what has already taken place could not be held to declare any right and there would be no necessity of registering such a document. [1113H; 1114A] Rajangam Ayyar v. Rajangam Ayyar, LR (1923) 69 IA 123 and Nani Bai v. Gita Bai, AIR(1958) SC 706 referred to.

3. A document though unregistered can, however, be looked into under the proviso to s. 49 of the Act which allows documents which would otherwise be excluded, to be used as evidence of any collateral transaction not required to be effected by a registered instrument, for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document Exh. P-12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. [1116G-H; 1117A]

Varada Pillai v. Jeevarathnammal, LR (1919) 46 IA 285 referred to.

4. In any view, the document Exh. P-12 is a mere list of properties allotted to the shares of the parties. It merely contains the recital of past events. It is, therefore, admissible in evidence. [1117B] Narayan Sakharam Patil v. Cooperative Central Bank, Malkapur & Ors., ILR (1938) Nag. 604; Bageshwari Charan Singh v. Jagarnath Kuari, LR (1932) 59 IA 130; Subramanian v. Lutchman, LR (1923) 15 IA 77; Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil & Ors., ILR

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(1942) Nag. 73 and Mulla’s Registration Act, 8th Edn. pp. 54-57 referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: CIVIL APPEAL No. 2185 of 1987.

From the Judgment and Order dated 4th August 1986 of the High Court of Delhi in R.F.A. No. 16 of 1986. S.N. Kacker, Awadh Behari and A.K. Sanghi for the Appellants.

U.R. Lalit, R.S. Hegde and K.R. Nagaraja for the Respondents.

The Judgment of the Court was delivered by SEN, J. This appeal by special leave by the defendants arises in a suit for a declaration and injunction brought by the plaintiffs and in the alternative for partition. They sought a declaration that they were the owners in possession of the portions of the property delineated by letters B2, B3, B4 and B5 in the plaint map which had been allotted to them in partition, and in the alternative claimed partition and separate possession of their shares. The real tussel between the parties is to gain control over the plot in question marked B2 in the plaint map, known as Buiyanwala gher. Admittedly, it was not part of the ancestral property but formed part of the village abadi, of which the parties were in unauthorised occupation. The only question is whether the plaintiffs were the owners in possession of the portion marked B2 as delineated in the plaint map. That depends on whether the document Exh. P-12 dated 3rd August, 1955 was an instrument of partition and therefore inadmissible for want of registration under s. 49 of the Indian Registration Act, 1908, or was merely a memorandum of family arrangement arrived at by the parties with a view to equalisation of their shares.

The facts giving rise to this appeal are that the plaintiffs who are four brothers are the sons of Soonda. They and the defendants are the descendants of the common ancestor Chattar Singh who had two sons Jai Ram and Ram Lal. Soonda was the son of Ram Lal and died in 1966. Jai Ram in turn had two sons Puran Singh and Bhagwana. The latter died issueless in 1916-17. Puran Singh also died in the year 1972 and the defendants are his widow, three sons and two daughters. It is not in dispute that the two branches of the family had joint ancestral properties, both agricultural and residential in Village Nasirpur, Delhi

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Cantonment. The agricultural land was partitioned between Puran Singh and Soonda in 1955 and the names of the respective parties were duly mutated in the revenue records. This was followed by a partition of their residential properties including the house, gher/ghetwar etc. The factum of partition was embodied in the memorandum of partition Exh. P-12 dated 3rd August, 1955 and bears the thumb impressions and signatures of both Puran Singh and Soonda. In terms of this partition, the ancestral residential house called rihaishi and the open space behind the same shown as portions marked A1 and A2 in the plaint map Exh. PW 25/1, fell to the share of Puran Singh. Apart from this, Puran Singh was also allotted gher shown as A3 in the plaint map admeasuring 795 square yards. Thus, the total area falling to the share of Puran Singh came to 2417 square yards. The plaintiffs’ ancestor Soonda on his part got a smaller house called baithak used by the male members and visitors, warked B1 in the plaint map having an area of 565 square yards. Apart from the house marked B1, Soonda also got ghers marked B2 to B5, demarcated in yellow in the plaint map and thus the total area got by Soonda also came to 2417 square yards. In terms of this partition, the plaintiffs claim that the parties have remained in separate exclusive possession of their respective properties. However, in February 1971 the plaintiffs wanted to raise construction over the gher marked B2 in the plaint map and started constructing a boundary wall. Defendants no. 1-3, sons of Puran Singh, however demolished the wall as a result of which proceedings under s. 145 of the Code of Criminal Procedure, 1898 were drawn against both the parties about this property. The Sub Divisional Magistrate, Delhi Cantt, New Delhi by her order dated 26th April, 1972 declared that the second party, namely Puran Singh, father of defendants nons. 1-3, was in actual possession of the disputed piece of land marked B2 on the date of the passing of the preliminary order and within two months next before such date and accordingly directed delivery of possession thereof to him until evicted in due course of law. On revision, the Additional Sessions Judge, Delhi by order dated 4th March, 1974 agreed with the conclusions arrived at by the learned Sub Divisional Magistrate. On further revision, a learned Single Judge (M.R.A. Ansari, J.) by his order dated 6th Agust, 1975 affirmed the findings reached by the Courts below on condition that while party no. 2 Puran Singh would remain in possession of the property in dispute, he would not make any construction thereon. The plaintiffs were accordingly constrained to bring the suit for declaration and injunction and in the alternative, for partition.

1111

After an elaborate discussion of the evidence adduced by the parties, the learned Single Judge (D.R. Khanna, J.) by his judgment dated April 18, 1980 came to the conclusion, on facts, that the plaintiffs were the owners in possession of the property marked as B1, a smaller house known as baithak, and the disputed plot B2, and the properties, marked as A1, the ancestral residential house called rihaishi and A2, the open space behind the same, belonged to the defendants. Taking an overall view of the evidence of the parties in the light of the circumstances, the learned Single Judge came to the conclusion that the gher marked B2 belonged to the plaintiffs and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January 1971. In coming to that conclusion, he observed:

“I have little hesitation that the portions marked A-1 and A-2 and B-1 and B-2 were ancestral residential houses of Ghers of the parties and Soonda and Puran had equal share in them. The residential house shown as A-1 and the open space behind that marked as A-2 were admittedly given to Puran in the partition of 1955. Similarly B-1 was allotted to Soonda. I am unable to hold that B-2 was also allotted to Puran. This would have been wholly unequitable and could not have by any stretch reflected the equal division of these joint properties. Puran in that case apart from getting the residential house for which he paid Rs.3,000 to Soonda would have also got far area in excess if defendants’ case that Gher B-2 also belongs to them is accepted. In any natural and equitable division of the properties, that allotment of the residential house marked ‘A’ and the open space behind the same to Puran, Baithak B-1 and Gher No. 2 could have been naturally been given to Soonda. That it was actually done so, gets clarified in the document Ex. P1 dated 31.1.1971 which was written in the presence of a number of villagers between Puran and Soonda.” The learned Judge went on to say that the document Exh. P-12 was executed by Puran Singh and Soonda in the presence of the villagers who attested the same, and there was some sanctity attached to it. What is rather significant is that Puran Singh was required to pay Rs.3,000 as owelty money for equalisation of shares.

Aggrieved, the defendants preferred an appeal under cl. 10 of the Letters Patent. A Division Bench of the High Court (D.K. Kapur,

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CJ. and N.N. Goswamy, J.) by its judgment dated 4th August, 1986 affirmed the reasoning and conclusion arrived at by the learned Single Judge and accordingly dismissed the appeal. Both the learned Single Judge as well as the Division Bench have construed the document Exh. P-12 to be a memorandum of family arrangement and not an instrument of partition requiring registration and therefore admissible in evidence under the proviso to s. 49 of the Act, and have referred to certain decisions of this Court in support of that conclusion.

In support of the appeal, Shri S.N., Kacker, learned counsel for the appellants has mainly contended that the document Exh. P-12 is an instrument of partition and therefore required registration under s. 17 of the Act. It is urged that the High Court has on a misconstruction of the terms wrongly construed it to be a memorandum of family arrangement and admissible for the collateral purpose of showing nature of possession under the proviso to s. 49 of the Act. In substance, the submission is that the document does not contain any recital of a prior, completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties i.e. according to which partition by metes and bounds had to be effected. We regret, we find it rather difficult to accept the contention.

In order to deal with the point involved, it is necessary to reproduce the terms of the document Exh. P-12 which read:

“Today after discussions it has been mutually agreed and decided that house rihaishi (residential) and the area towards its west which is lying open i.e. the area on the back of rihaishi (residential) house has come to the share of Chaudhary Pooran Singh Jaildar.

2. House Baithak has come to the share of Chaudhary Soonda. The shortage in area as compared to the house rihaishi and the open area referred to will be made good to Chaudhary Soonda from the filed and gitwar in the eastern side.

3. Rest of the area of the field and gitwar will be half and half of each of co-shares. The area towards west will be given to Chaudhary Pooran Singh and towards east will be given to Chaudhary Soonda.

4. Since house rihaishi has come to the share of

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Chaudhary Pooran Singh therefore he will pay Rs.3000 to Chaudhary Soonda.

5. A copy of this agreement has been given to each of the co-shares.

D/-3.8. 1955

Sd/- in Hindi LTI

Pooran Singh Zaildar Ch. Soonda.”

According to the plain terms of the document Exh. P-12, it is obvious that it was not an instrument of partition but merely a memorandum recording the decision arrived at between the parties as to the manner in which the partition was to be effected. The opening words of the document Exh. P-12 are: ‘Today after discussion it has been mutually agreed and decided that …..’. What follows is a list of properties allotted to the respective parties. From these words, it is quite obvious that the document Exh. P-12 contains the recital of past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated. So also the Panch Faisala Exh. P-1 which confirmed the arrangement so arrived at, opens with the words ‘Today on 31.1.1971 the following persons assembled to effect a mutual compromise between Chaudhary Puran Singh and Chaudhary Zile Singh and unanimously decided that …..’. The purport and effect of the decision so arrived at is given thereafter. One of the terms agreed upon was that the gher marked B2 would remain in the share of Zile Singh, representing the plaintiffs. It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under s. 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Sec. 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some

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right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, s. 49 of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of s. 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition: See Mulla’s Registration Act, 8th edn., pp. 54-57.

The tests for determining whether a document is an instrument of partition or a mere list of properties, have been laid down in a long catena of decisions of the Privy Council, this Court and the High Courts. The question was dealt with by Vivian Bose, J. in Narayan Sakharam Patil v. Cooperative Central Bank, Malkapur & Ors., ILR (1938) Nag.

604. Speaking for himself and Sir Gilbert Stone, CJ. the learned Judge relied upon the decisions of the Privy Council in Bageshwari Charan Singh v. Jagarnath Kuari LR (1932) 59 IA 130 and Subramanian v. Lutchman LR (1923) 15 IA 77 and expressed as follows:

“It can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to ‘create, declare, assign, limit of extinguish ….. any right, title or interest’ in the property which is admittedly over Rs. 100 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated.”

Sir Gilbert Stone, CJ speaking for himself and Vivian Bose, J. in Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil & Ors., ILR (1942) Nag. 73 reiterated the same principle. See also: order cases in Mulla’s Registration Act at pp. 56-57. Even otherwise, the document Exh. P-12 can be looked into under the proviso to s. 49 which allows documents which would

1115

otherwise be excluded, to be used as evidence of ‘any collateral transaction not required to be effected by a registered instrument’. In Varada Pillai v. Jeevarathnammal, LR (1919) 46 IA 285 the Judicial Committee of the Privy Council allowed an unregistered deed of gift which required registration, to be used not to prove a gift ‘because no legal title passed’ but to prove that the donee thereafter held in her own right. We find no reason why the same rule should not be made applicable to a case like the present. Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts. It does not require any formality, and therefore if parties actually divide their estate and agree to hold in severalty, there is an end of the matter. On its true construction, the document Exh. P-12 as well as the subsequent confirmatory panch faisala Exh- P-1 merely contain the recitals of a past event, namely, a decision arrived at between the parties as to the manner in which the parties would enjoy the distinct items of joint family property in severalty. What follows in Exh. P-12 is a mere list of properties allotted at a partition and it cannot be construed to be an instrument of partition and therefore did not require registration under s. 17(1)(b) of the Act. That apart, the document could always be looked into for the collateral purpose of proving the nature and character of possession of each item of property allotted to the members.

The matter can be viewed from another angle. The true and intrinsic character of the memorandum Exh. P-12 as later confirmed by the panch faisla Exh P-1 was to record the settlement of family arrangement. The parties set up competing claims to the properties and there was an adjustment of the rights of the parties. By such an arrangement, it was intended to set at rest competing claims amongst various members of the family to secure peace and amity. The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties. The principle governing this was laid down by the Judicial Committee in Khunni Lal v. Gobind Krishna Narain & Anr., LR (1911) 38 IA 87. Ameer Ali, J. delivering the judgment of the Privy Council quoted with approval the following passage from the judgment in Lalla Oudh Behari Lall v. Mewa Koonwar, [1868] 3 Agra HC 82 at p. 84: “The true character of the transaction appears to us to have

1116

been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the Courts to uphold and give full effect to such an arragement.”

This view was adopted by the Privy Council in subsequent decisions and the High Courts in India. To the same effect is the decision of this Court in Sahu Madho Das & Ors. v. Pandit Mukand Ram & Anr., [1955] 2 SCR 22. The true principle that emerges can be stated thus: If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of s. 17 read with s. 49 of the Registration Act as no interest in property is created or declared by the document for the first time. As pointed out by this Court in Sahu Madho Das’ case, it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.

In the present case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Exh. P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide does not require registration. But if the writing itself effects a division, it must be registered. See: Rajangam Ayyar v. Rajangam Ayyar, LR (1923) 69 IA 123 and Nani Bai v. Gita Bai, AIR (1958) SC 706. It is well-settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that 1117

severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document Exh. P-12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any view, the document Exh. P-12 was a mere list of properties allotted to the shares of the parties.

In the result, the appeal fails and is dismissed with costs.

P.S.S. Appeal dismissed.

Amendment of Plaint to prevent partial partition – application by defendant ?

The question raised in this civil revision petition is as to whether under Order VI, Rule 17 of the Civil Procedure Code, amendment of the plaint in a partition suit can be allowed at the instance of the defendants?
Court held yes – since holistically in partition suit there are no judgment debtors and strict bifurcation of parties and their role is obliterated to a great extent, if the defendant seeks to bring more properties by way of amendment to protect the suit from being bad on account of partial partition – court may consider it and if it finds the same necessary for the determining the real questions in controversy as well as deciding the matter with a finality – shall be allowed.
Madras High Court
Solavaiammal vs Ezhumalai Goundar on 16 November, 2011

DATED: 16.11.2011

CORAM

THE HONOURABLE MR.JUSTICE D.MURUGESAN

AND

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN

C.R.P.(PD) No.3006 of 2010

1. Solavaiammal

W/o Ettiappa Goundar

2. Parvathy

W/o Ezhumalai

3. Shanmugam

S/o Ettiappa Goundar

4. Rathnam

S/o Ettiappa Goundar .. Petitioners

-vs-

1. Ezhumalai Goundar

S/o Ettiappa Goundar

2. Valliammal

S/o Venugopal .. Respondents

Memorandum of Grounds of Civil Revision Petition under Article 227 of The Constitution of India against the fair and decretal order dated 05.02.2010 passed in I.A.No.264 of 2009 in O.S.No.31 of 2007 on the file of the Sub Court, Madurantagam. For Petitioners :: Mr.K.Govi Ganesan

For Respondents :: Mr.J.Sudhakaran for

Mr.M.Arunachalam for R1

ORDER

D.MURUGESAN, J.

The question raised in this civil revision petition is as to whether under Order VI, Rule 17 of the Civil Procedure Code, amendment of the plaint in a partition suit can be allowed at the instance of the defendants?

2. The said question has been referred to for a decision by the Division Bench by The Hon’ble Mr.Justice M.Duraiswamy vide order dated 16.3.2011 and the reference necessitated in view of the conflicting views given by two learned Judges of this Court in the decisions in Ramasamy and another v. P.Marappan and others, 2005 (3) MLJ 663 and in A.A.Ganga and another v. A.R.Usha and others, 2010 (4) CTC 331.

3. In a suit for partition filed by the plaintiffs in O.S.No.31 of 2007 on the file of the Subordinate Court, Madurantagam, the defendants, namely the revision petitioners, filed I.A.No.264 of 2009 under Order VI, Rule 17 of the Civil Procedure Code seeking for amendment of the plaint on the ground that some of the joint family properties were left out by the plaintiffs for partition. After hearing both sides, the learned trial Judge dismissed the application holding that the defendants cannot seek for amendment of the plaint. The said order is put in issue in this civil revision petition.

4. In the judgment in Ramasamy v. P.Marappan, 2005 (3) MLJ 663, the learned Judge R.Banumathi, J. held that under Order VI, Rule 17 of the Civil Procedure Code, a party can seek to amend his pleadings in plaint or written statement, but a party cannot seek to amend the pleadings of his opponent. So far as the amendment of plaint is concerned, the learned Judge has held that as the plaintiff is the dominant litus and he cannot be compelled to include other items of properties in the plaint schedule in a partition suit. The learned Judge was of the view that if the petition mentioned properties which are sought to be included in the plaint schedule are proved to be joint family properties, the suit would only be bad for partial partition. Holding so, the learned Judge upheld the order of the trial Court in dismissing the application to amend the plaint.

5. Subsequently, when the very same question came up for consideration before R.S.Ramanathan, J., the learned Judge, after referring to the judgment in Ramasamy case, held that such an application for amendment in a partition suit at the instance of the defendant is maintainable, since, in a suit for partition, the plaintiff is defendant and the defendant is plaintiff, and therefore the defendant is entitled to include the property left out by the plaintiff so as to have a complete adjudication and to avoid further litigation.

6. Before we consider the issue raised in this civil revision petition, the relevant provision of Civil Procedure Code, viz., Order VI, Rule 17 requires a reference and the same reads thus:

17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

7. The scope of Order VI, Rule 17 of the Civil Procedure Code came up for consideration before the Apex Court and the Apex Court ultimately held as follows in the following judgments.

8. In the judgment in Revajeetu Builders and Developers v. Narayanasamy and sons and others, (2009) 10 SCC 84, the Apex Court after analysing critically both the English and Indian cases on the point, deduced the following basic principles to be taken into consideration by the Courts while allowing or rejecting the application for amendment: (i) whether the amendment sought is imperative for proper and effective adjudication of the case;

(ii) whether the application for amendment is bona fide or mala fide;

(iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(iv) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(vi) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by the law of limitation on the date of application.

In fact, the Apex Court held that the Courts have very wide discretion in the matter of amendment of pleadings, but Court’s powers must be exercised judiciously and with great care. While deciding applications for amendments the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.

9. In Vidyabai and others v. Padmalatha and another, (2009) 2 SCC 409, the Apex Court held that it is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code would restrict the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.

10. In B.K.Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712, the Apex Court held as follows:

3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

11. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (died) by L.Rs., (2008) 8 SCC 511, the Apex Court held thus:

In so far as the principles which govern the question of granting or disallowing Amendments under Order 6, Rule 17, C.P.C. (as it stood at the relevant time) are concerned, these are well settled. Order 6, Rule 17, C.P.C., postulates amendment of pleadings at any stage of the proceedings. In Piragonda Hongonda Patil v. Kalgonda Shidgonda Patil, which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.

12. A learned Judge of this Court in Vaidinatha Chettiar and others v. Thirumalai Reddyar, AIR 1934 Madras 220 held that where the Court compels the plaintiff to amend the plaint, only the plaintiff can complain; and it is not open to the defendant to complain that the Court has no jurisdiction to compel the plaintiff to do so.

13. In T.P.Palaniswami and another v. Deivanaiammal and others, 96 L.W. 560, a learned Judge of this Court has held as follows:

3. Negligence or carelessness, or belatedness, need not be put against a party seeking amendment if the facts and circumstance of the case warrant the allowing of the amendment for the purpose of adjudicating the controversy between the parties comprehensively in the same lis.

4. It is well settled that while deciding an application for amendment, the court is not supposed to go into the merits and demerits of the amendment and express an opinion one way or the other. That could be the subject matter of scrutiny after the amendment is allowed, applying the well accepted principles therefor, and after the defendant files the additional written statement and after appropriate additional issue is framed and that issue is tried after the parties placed the requisite evidence therefor and submitted arguments in support of their respective cases.

7. Under Order 6, Rule 17 of the Code, the court may, at any stage of the proceedings, allow either party to amend his pleadings and all such amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties. In a suit for partition, the quantum of the estate is a question in issue and if there had been inadvertence or omission to include a particular item, the court is duty bound to allow the amendment and while doing so, it will be inappropriate to adjudicate upon the questions which would arise on the amendment being allowed and that stage will come only later, after the amendment is allowed, issues are framed and the parties placed their evidence and made their submissions through arguments.

14. In P.Arumugham and another v. P.Balasubramaniam and others, (2008) 7 MLJ 1210, a learned Judge of this Court has held as follows:

Merely because the plaintiff owing to some motive or as per his own stand did not include certain items in the suit property, it would not lead to the conclusion that the suit is bad for partial partition. There are instances where the parties would deliberately leave certain items of properties, without any valid reasons for getting it divided at once, but to get them divided at a later date at their own whims and fancies and in such a case, the Court could hold that the suit is bad for partial partition. Even in such cases, the Courts have got the power to direct that the left out items also should be included in the partition, once there are evidence available on record that those items are co-parcenary properties.

15. Keeping the above principles in mind, the question raised in this civil revision petition is to be considered. Though a plain reading of Order VI, Rule 17 of the Code of Civil Procedure would appear that only a party to the plaint or written statement, as the case may be, could seek for amendment on the ground that such a party would be the dominant litus, it will be only a general rule in respect of all suits barring a suit for partition. In terms of Order VI, Rule 17, only the respective party to the pleadings could seek for amendment, as they are referred to as the plaintiff or defendant, as the case may be. In a partition suit, both the plaintiff and defendant are considered to be on the same pedestal to seek for a decree. This distinction is made by Courts. The application of Order VI, Rule 17 insofar as partition suits shall be considered keeping the above in mind.

16. While an amendment is sought, the Court has to see whether such amendment is imperative for proper and effective adjudication of the case, the amendment is bona fide or mala fide and in case such amendment is ordered, whether any prejudice would be caused to the other party which cannot be ultimately compensated in terms of money. The Court must also consider as to whether in the event the amendment is refused, it may lead to injustice or multiple litigation. One more principle to be followed while considering the request for amendment is as to whether it would change the character or nature of the case.

17. In a suit for partition, in the event the plaintiff has included only certain properties as if they are available for partition and leave some other properties which are also available for partition, the request of the defendant in such event to include the left out properties also in the plaint schedule would not in any way amount to altering or changing the nature or character of the suit, as such an amendment is also necessary for an effective adjudication of the case and to avoid multiplicity of proceedings.

18. It is argued that in the event some of the properties which are available for partition are not included in the plaint schedule, the decree would be invalid on the ground of partial partition. However, it must be kept in mind that in such event, a further suit has to be filed either at the instance of the plaintiff or defendant to include all the properties which are available for partition. In order to avoid such a situation, in partition suit, the Court could certainly entertain an application for amendment to include the properties which are left out and it cannot be said that in the event the amendment petition is dismissed, the decree would be invalid for partial partition. Hence, we hold that in a suit for partition, application for amendment at the instance of either party to the suit is maintainable under Order VI, Rule 17 of the Civil Procedure Code. We may also refer to the judgment of the Apex Court in Shub Karan Bubna alias Shub Karan Prasad Bubna v. Sita Saran Bubna and others, 2009 (12) Scale 259, wherein the Apex Court has observed that a decree in partition suit enures to the benefit of all the co-owners and it is sometimes said that there is really no judgment-debtor in a partition suit.

19. However, in an application for amendment, the Court has to prima facie satisfy itself as to whether the properties are available for partition or not, as a detailed adjudication on the claim is improper. If there is a dispute over the inclusion of properties by the plaintiff contending that those properties are not available for partition, the Court is certainly entitled to reject the application for amendment on that ground. In such event, the only course open to the defendant is to file a suit for partition by including those properties. As we have been called upon to answer the question as to whether the application under Order VI, Rule 17 of the Civil Procedure Code seeking for amendment of the schedule to the plaint in a partition suit at the instance of the defendant is maintainable or not, we answer the said issue by holding that while considering such an application, it is for the Court to decide on the facts of each case. The reference is answered accordingly. Registry is directed to list the civil revision petition before the concerned learned Judge.

ss

Presumption as to Joint Family Property – continuing Joint and not seperate

In This case – the court held two very fundamental principles which are of seminal importance in partition cases  -  i) if joint family’s existence is shown – some property/nucleas is shown ii) It is presumed that joint family goes on/continues iii) Some properties brought by Karta in his name iv) Onus on Karta if he claims those properties to be seperate to show his sources of income, however in the case of coparcenor holding it in his name the position is converse – the other coparcenors challenging has to adduce evidence to make it out to be joint family property.
Madras High Court
Mr.Malla Naicker @ Singari vs Miss. Jeeva (Minor) on 8 August, 2011

Dated : 8.8.2011

CORAM

The Hon’ble Mr.Justice R.S.Ramanathan

S.A.No.212 of 2011

1. Mr.Malla Naicker @ Singari

2. Mrs.Ramakkal

3. Mr.Nataraj …Appellants/defendants

Vs.

1. Miss. Jeeva (minor)

2. Senthilkumar ( minor)

3. Miss. Tamilselvi … Respondents/plaintiffs

Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 20.8.2007, passed in A.S.No.36 of 2007, on the file of the Additional District Court/Fast Track Court No.4, Bhavani, in reversing the judgment and decree dated 15.7.2004, passed in O.S.No.503 of 2004, on the file of the Second Additional District Munsif Court, Bhavani.

For appellants : Mr.N.Manokaran

For respondents 1 & 2 : Mr.A.K.Kumarasamy

JUDGMENT

The defendants are the appellants herein. The respondents/plaintiffs filed the suit for partition of 3/8 share in the suit property.

 

2. The case of the respondents/plaintiffs was that the first appellant is their paternal grandfather and the second appellant is their paternal grandmother and the third appellant is their father. The suit properties are the joint family properties in the hands of the first appellant. As the third appellant, being the father of the respondents/plaintiffs, neglected to maintain them and was leading a wayward life, the mother of the respondents/plaintiffs, is living separately and as the properties are joint family properties, they are also entitled to a share in the properties. Hence, the suit was filed for partition of their 3/8 share in the suit property. It was further stated that the suit properties are purchased out of the income from the joint family properties in the name of the appellants/defendants 1 and 2 and therefore, the suit properties are the ancestral properties in which the respondents/plaintiffs have got their right by birth. Hence, they are entitled to claim their share in the suit properties.

3. The appellants/defendants contested the suit denying the allegations made against the third appellant and further contended that the properties are not joint family properties and they were not purchased out of the joint family nucleus and they are the separate properties of the appellants/defendants. Therefore, the respondents/plaintiffs cannot claim any share in the properties by birth

4. The Trial Court, dismissed the suit holding that no evidence was let in by the respondents/plaintiffs about the ancestral properties that was lying in the hands of the first appellant and no evidence was let in prove the income from the ancestral nucleus and in the absence of any such evidence, adduced by the respondents/plaintiffs, it cannot be stated that the suit properties are purchased out of the income from the joint family properties. Further, the suit properties are purchased in the year 1983, as evidenced by Exs.A1 and A2 whereas, the joint family properties were sold only in the year 1984, as evidenced by Ex.B1. Therefore, it cannot be stated that out of the sale proceeds of the joint family properties, the suit properties are purchased and as the respondents/plaintiffs failed to prove that the joint family was having sufficient ancestral properties, which provided the consideration for purchase of the suit properties, they are not entitled to the relief of partition.

5. The Lower Appellate Court reversed the judgment and decree of the Trial Court and allowed the appeal, holding that, admittedly, the joint family possessed of ancestral properties and D.W.1 viz., the first appellant also admitted in evidence that the suit properties were purchased from the income of the ancestral properties. Therefore, having regard to the admission of the first appellant and also having regard to the fact that the ancestral properties was having nucleus, it can be presumed that the ancestral properties provided consideration for the purchase of the suit properties. Hence, the respondents/plaintiffs are entitled to a share in the suit properties and allowed the appeal and decreed the suit. Being aggrieved by the same, this Second Appeal has been filed.

6. The following substantial questions of law were framed at the time of admission of the Second Appeal:-

i) Whether the Lower Appellate Court has rightly placed the burden of proof for arriving at a conclusion that the suit properties are ancestral properties?

ii) Whether the respondents/plaintiffs are entitled to get the decree for partition, when they failed to prove that the ancestral properties provided the consideration for the purchase of the suit properties?

iii)Whether the Lower Appellate Court is right in holding that the suit properties are joint family properties?

7. The learned counsel appearing for the appellants Mr.N.Manokaran, submitted that the Lower Appellate Court, without properly appreciating the evidence of D.W.1 in its entirety, erred in holding that D.W.1 admitted that the suit properties were purchased from and out of the income from the ancestral properties and in the same cross-examination, he has corrected his earlier version and submitted that he purchased the property from and out of his business income. The learned counsel therefore submitted that the Courts below ought to have read the evidence as a whole and should not rely upon some stray sentences and D.W.1 has clearly sated that out of his own income, the suit properties were purchased in his name and in the name of his wife. D.W.1, has also stated that there was no income from the ancestral properties and he was getting only meager income from 60 cents of property, which was his ancestral properties and that was not sufficient to run the family and without considering all these aspects, the Lower Appellate Court erred in holding that D.W.1 has admitted in evidence that the suit properties were purchased from the income of the ancestral properties.

8. The learned counsel for the appellants further submitted that even according to the case of the respondents/plaintiffs that by selling the ancestral properties, the suit properties are purchased and it was demonstrated that the ancestral properties was sold in the year 1984, as per Ex.B1, whereas, the suit properties were purchased in the year 1983 and therefore, the sale proceeds of the ancestral properties would not have provided the consideration for the purchase of the suit properties.

9. The learned counsel for the appellants also submitted that the burden is on the co-parcener to prove that the properties in the name of other co-parcener is the coparcenary property and not a separate property of that co-parcener and any person claiming that the properties are the joint family properties has to prove the existence of joint family properties and the income derived from that joint family properties, which would have provided the consideration for the purchase of the other properties. In this case, the respondents/plaintiffs failed to discharge the burden cast on them, by adducing evidence and the Lower Appellate Court wrongly cast the burden on the appellants/defendants and held that the properties are the joint family properties and therefore, the judgment of the Lower Appellate Court is liable to be set aside. He also relied upon the following reported judgments in support of his contention:-

1.(1979) Madras 1 in the case of [ The Additional Commissioner of Income Tax, Madras Vs. Mr.P.L.Karuppan Chettiar],

2.(1998) 2 Law Weekly 259 in [ The Commissioner of Income Tax Vs. Mr.P.L.Karuppan Chettiar],

3. (2001) I C.T.C. 132 in the case of [ Mr.Ramaswamy and another Vs. Mr.R.Murugan],

4. (2003) 10 S.C.C. 310 in the case of [Mr.D.S.Lakshmaiah and another Vs. Mr.L.Balasubramanyam and another],

5. (2005) 3 Law Weekly 627 in the case of [ Mr.P.R.Kannaiyan (died) and 7 others Vs. Ramasamy Mandiri S/o Govinda Mandiri and 10 others]

6.A.I.R. (2007 ) S.C. 1808 in the case of [Makhan Singh (Died) by Lrs. Vs. Kulwant Singh]

and

7.(2007) 4 M.L.J. 993 in the case of [Mr.N.Ramachandran Vs. E.Varadarajan and another]

 

10. Per contra, Mr.A.K.Kumarasamy, the learned counsel appearing for the respondents submitted that the existence of the ancestral property was proved by Ex.B1 and the first appellant is the Kartha of the joint family and he has not let in any evidence to show that he had independent income and as per Ex.B1, the joint family was possessed of 63 cents with irrigation facilities. He further submitted that no evidence was adduced by the first appellant about his personal income and therefore, the Lower Appellate Court has rightly drawn a legal presumption that the suit properties were purchased out of the joint family properties’ income and the first appellant also admitted in evidence that the properties were purchased from and out of the income of the joint family properties and having regard to all these aspects, the Lower Appellate Court has rightly decreed the suit.

11.Heard both sides.

12. The presumption regarding the coparcenary property vis-a-vis separate property and the person on whom the burden lies has been succinctly stated in Mulla Hindu Law, 17th Edition Volume 1, Page 344 in paragraph No.233 as follows:-

1) Presumption that a joint family continues joint –

2)There is no presumption that a joint family possesses joint property-

" To render the property joint, the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. It can be brought to the cognizance of a Court in the same way, as any other fact, namely, by evidence. Where it is established or admitted that the family possessed some joint property which, from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without the aid of the joint family. However, no such presumption would arise if the nucleus is such that with its held the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its held the property claimed to be joint could have been acquired. " The wide proposition that once the ancestral nucleus is proved or admitted the onus on the member to prove that the property acquired was his self-acquisition cannot be accepted as correct. The existence of some nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What is to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made? Alternatively, this may be shown from the nature and relative value of the nucleus itself. This is the second phase in the onus of proof, which lies on the person, who sets up the family character of the property. Where, however, the existence of the nucleus is shown and no other source of income is disclosed the presumption may be made that the nucleus was sufficient to enable the property to be acquired. Such being the presumption, if any member of the family claims any portion of the property, as his separate property, the burden lies upon him in any such case to that it was acquired by him in circumstances which would constitute it is separate property. He may do so by showing that the income of the existing ancestral property was employed in other ways, or was kept intact. If he adduces no evidence, the presumption that the property was joint family property, must prevail. The mere fact that it was purchased in his name and that there are receipts in his name respecting it does not render the property his separate property for all that is perfectly consistent with the notion of its being joint property. However, if, in addition to the fact that certain property stands in the name of one of the members, A, B, there be these further facts, namely that some other member of the family had acquired separate property with their own moneys and dealt with it as their own without reference to the rest of the family, and that, A, B, was allowed by the family to appear to the word to be the sole owner, the presumption that the property is joint is weakened, and the burden of proving that it is joint will lie on those who allege that it is joint. There is no presumption in case of property standing in the name of female members. In the case of a Kartha or a manager, who managed the family affairs, or was in possession of sufficient joint family assets, the onus would be on such Kartha to prove that the acquisition made by him was without the aid of such joint family assets."

13. Therefore, bearing in mind the aforesaid principles, we shall see the evidence available in this case. As stated supra, the first appellant is the Kartha of the joint family and Ex.B1, also proves that the joint family possessed of nucleus. As per Ex.B1, the property is an agricultural property, having irrigation facilities. Therefore, having regard to the fact that the first appellant is the Kartha of the family and the properties were purchased in his name and in the name of his wife, the burden is on the Kartha to prove that the properties stands in his name are his self acquired properties and they were not purchased out of the income from the joint family properties.

14. Further, it was stated in the written statement that the properties were purchased by the appellants 1 and 2 out of their own income derived from their business. To prove the same, D.W.1 has stated that he was doing business in paddy, groundnut etc., and except the statement made in the chief examination, no proof was adduced by him to show the business run by him or the income derived from that business. Evidence of D.W.1 was that, he purchased the suit properties out of his personal earnings and he was doing business in paddy groundnut etc., On the other hand, Ex.B1, sale deeds discloses that the properties sold by them under Ex.B1, belongs to the appellants 1 and 2, as ancestral properties and the third appellants got the properties as a self acquired one.

15. Therefore, in Ex.B1, the first and third appellants admitted the fact that the properties belonged to them ancestrally and it was not stated that it was their separate properties. Further, in Exs.A1 and A2, viz., the sale deeds in the name of the appellants 1 and 2, they were described as agriculturists and it was not stated that they are doing any business. Therefore, except the oral evidence of D.W.1 that he was doing business in paddy and groundnut, no other evidence was made available with the appellants/defendants to prove that out of their personal income, the suit properties were purchased. D.W.2 has given evidence, corroborating the evidence of the first appellant about the business conducted by him and he also admitted that from the ancestral properties, the family would get four bags of rice per annum and except his oral evidence, there is no documentary evidence to prove that the first appellant was doing any business.

16. Further, in Ex.B1, it was stated that sale was necessitated to meet the family expenses and also to develop the properties. Thus, the recitals in Ex.B1, not only proved the existence of ancestral nucleus, which was sold, but also proved that they are having the suit properties and to develop the same, the ancestral properties were sold. Further, the properties were sold to meet the family expenses and if really, sufficient income was derived from the business of the first appellant, as stated by him and D.W.2, there was no necessity for the first appellant to sell the ancestral properties under Ex.B1, to meet the family expenses and to develop their properties. Therefore, the recitals in Ex.B1, falsifies the case of the first appellant that except that property, there was no other ancestral properties and there was no income from that property.

17. Therefore, having regard to the presumption as per the law laid down by the Hon’ble Supreme Court as well as our High Court as referred to above, and as stated in Mulla Hindu Law that when a Kartha claims certain properties as a separate properties and the joint family admittedly possessed of some nucleus, the burden is on the Kartha to prove that the properties are his separate properties and not purchased out of the joint family properties’ income. On the other hand, if the co-parcener claims certain properties as his separate properties, then the burden is cast on the other co-parcener, who claims that the property is a joint family property to prove that property purchased in the name of one of the co-parceners was purchased out of the joint family properties’ income and it was not a separate property.

18. Therefore, the law recognizes two standards of burden of proofs, one for the Kartha of the joint family and another for a co-parcener, when they claim that certain properties are their separate properties and not joint family properties. Admittedly, the joint family possessed of some nucleus, eventhough no evidence was adduced by the respondents/plaintiffs about the nature of income from that nucleus, in the absence of any source of independent income by the other co-parcener, in whose name, the property was purchased, it can be presumed that the joint family properties would have provided the consideration for the purchase of the suit properties.

19. As a matter of fact, this principles of law was also reiterated in the judgment reported in A.I.R. (2007 ) S.C. 1808 ( cited supra) which is extracted hereunder:-

 The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available”

20. In the judgment reported in ( 2005) 3 Law Weekly 627 ( cited supra) the Hon’ble Division Bench, after discussing the two judgments reported in (2003) 10 S.C.C. ( cited supra) 310 and A.I.R. 1961 S.C. 1268, in [ Mallesappa Bandeppa Desai and another Vs. Desai Mallappa @ Mallesappa and another] has held as follows:-  From the decisions of the Supreme Court in A.I.R. 1961 S.C. 1268 (cited supra)A.I.R. 1977 Madras 171 in [Mr.Sankaranarayanan and another Vs. The Official Receiver, Tirunelveli and others] and also from the observations made by the Allahabad High Court in A.I.R. 1950 Allahabad 54 in [ Bhagwant Kishore and another Vs. Bishambhar Nath and others] and in Maynes Treatise on Hindu Law and usage, and all other decisions noticed above, it is apparent that no exception is carved out in the matter relating to acquisition in the name of Kartha, where it is proved that Kartha had no independent income and he is in possession of some nucleus and not necessarily sufficient nucleus of the joint family property. In such a case, even where sufficient nucleus is not proved but existence of some nucleus is proved and it is further proved that Karta or Manager, in whose name property had been purchased, had no independent income, the burden is shifted to Karta to prove that the property has been acquired without the aid of the joint family and with the own separate income of the Karta or the Manager. We hasten to add that such principle is inapplicable, where it is shown that Kartha has some separate and independent income, in which event, the normal principle that it is for the person claiming a particular acquisition that there was sufficient surplus from the joint family property from out of which the property in question could have been acquired."

21. In the judgment reported in (2003) 10 S.C.C. 310, ( cited supra) the said principle was also reiterated, which is extracted hereunder:-

" The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available”

22. The other judgments relied upon by the learned counsel for the appellants is not applicable to the fact of the case on hand. Therefore, having regard to the fact that the joint family possessed of ancestral properties and the appellants failed to prove through satisfactory evidence that they were running a separate business from which they have derived income and the fact that the first appellant is the Kartha of the joint family and the properties were purchased in his name and in the name of his wife, the legal presumption is that the ancestral properties must have provided the nucleus and the burden is on the Kartha to prove that the properties were not purchased from out of the income derived from the joint family and it was purchased from his own income.

23. In this case, no evidence was let in by the appellants/defendants about their independent income and in such circumstances, the Lower Appellate Court has rightly held that the appellants failed to prove their independent income and when the joint family possessed of certain property, that would have provided the nucleus and the Lower Appellate Court correctly applied the law and set aide the judgment and decree of the Trial Court. Hence, the substantial questions of law are answered against the appellants

24. In the result, the Second Appeal is dismissed and the judgment and decree of the Lower Appellate Court is hereby confirmed. In the circumstances, there shall be no order as to costs.