Ghulam Mohammed, J.
1. This appeal is filed against the judgment and decree dated 15-2-2000 passed in OS No. 3 of 1996 (old OS No. 8 of 1985 on the file of Sub-Court, Madanapalle) by the Additional District Judge, Madanapalle.
2. The appellant herein is defendant No. 3 in the suit. The plaintiffs-respondents 1 and 2 herein filed the suit for partition and separate possession of 2/3rd share in the suit schedule property called Sree Lodge Building with upstairs and five shop rooms on the ground floor bearing Door Nos. 13-293, 13-294 and 13-295 with specific boundaries given in the plaint schedule.
3. For the purpose of convenience, the parties herein shall be referred to as they were arrayed in the suit.
The facts of the case are thus:
4. The 1st plaintiff and 2nd plaintiff are father and son. Defendant No. 1 is the eldest brother of the 1st plaintiff. Defendant No. 2 and 3 are mother and another brother of the 1st plaintiff. The case of the plaintiffs is that the suit property is jointly owned and possessed by the plaintiffs and the 1st defendant. The suit house was jointly constructed by the plaintiffs and the 1st defendant in the suit purchased by them jointly and as such the plaintiffs are entitled for 2/3rd share and the 1st defendant is entitled for 1/3rd share in the suit property. The house site was purchased from Seethamma and others under the registered sale deed dated 5-5-1966. It was also stated that the suit building was in the possession of the official receiver in IP No. 9 of 1972 and IP No. 6 of 1972 and after disposal of the insolvency proceedings the receiver was directed to re-deliver the property to the plaintiffs and the 1st defendant and they accordingly took possession of the suit building from the receiver and executed receipt on 30-12-1983.
5. It was further stated that the defendants 2 and 3 who have been added at the instance of the 1st defendant have absolutely no right and title to the suit property. As the 1st defendant was not evincing any interest to invest money for renovation of the suit building, the plaintiffs demanded their 2/3rd share in the suit property, but he has been evading the partition and therefore a registered notice dated 5-12-1984 was issued calling upon the 1st defendant to effect partition and as he failed to do so, the present suit was filed for partition and separate possession of the 2/3rd share in the suit property by metes and bounds.
6. Resisting the suit claim, the 2nd defendant i.e. mother the of the 1st plaintiff filed written statement which was also adopted by the 3rd defendant, to the effect that there is no truth in the claim of the plaintiffs that they have got 2/3rd share in the suit property and they very much have a share in the suit property. It was stated that the 2nd defendant has been the Manager of the joint family consisting of herself, the 1st plaintiff, 3rd defendant and another son by name Pabbathi Prabhakar Gupta and the said Prabhakar Gupta died unmarried as a member of the joint family. It was further stated that 1st plaintiff being the eldest son used to look after the affairs of the joint family property.
7. It was further stated by the 2nd defendant that during the life time of her husband, the 1st defendant had relinquished his right under a registered Relinquishment Deed dated 24-11-1952 and got separated from the family. That her husband by name Pabbathi Narayana Chetty left the family and went away and his whereabouts are not known for the last 30 years and therefore he is legally presumed to be dead. It is also stated that the 3rd son of the 4th defendant Krishna Murthy had also relinquished his right in the family property under a registered relinquishment deed dated 4-6-1957 in favour of the 2nd defendant and left the family and has been living separately. It is further stated that the 5th defendant-Ramamurthy who is the 4th son of the 2nd defendant, due to some misunderstanding had left the family by executing Relinquishment Deed dated 15-2-1966 in her favour and also 1st plaintiff and 3rd defendant. It was also stated that her son by name Prabhakar, the 1st plaintiff, the 2nd defendant and 3rd defendant continued to live jointly and they were earning by themselves. While so, Prabhakar Gupta died unmarried and issueless.
8. It is stated that the suit schedule property originally where a old house was situated was purchased by the family of the 2nd defendant, 1st plaintiff and 3rd defendant and also taking the 1st defendant as 1/3rd share holder by utilizing the family funds and also the amount realized out of selling gold jewels of 2nd defendant.
9. It is stated that as the 1st plaintiff was managing the joint family, the sale deed was taken in his name for 2/3rd share, But, taking advantage, the 1st plaintiff had included the name of his son i.e. the 2nd plaintiff in the sale deed who was only three years old by then. After the purchase of the said site, the present lodge has been constructed thereon with the joint family funds and joint contribution by the defendants 2 and 3 and the debts incurred for that purpose were also discharged jointly and therefore, the 2nd defendant and 3rd defendant are having 1/3rd share each in the 2/3rd share of the plaintiffs mentioned in the plaint since 1/3rd share was entitled by the 1st defendant.
10. It is stated that to construct the suit schedule lodge loan was obtained from Vysya Bank and the lodge was mortgaged to it for Rs. 75,000/- by them and those documents were executed in favour of Vysya Bank treating the property as joint family property and therefore the plaintiffs alone are not entitled for 2/3rd share in the plaint schedule property. Further, she claimed that the shop rooms bearing Door No. XIII-293/2 have been in her possession and she has been running a sundry shop and earning for family. It is stated that when IP No. 9 of 1972 was filed on the file of Sub-Court, Madanapalle, the 3rd defendant was also shown as joint family member liable to discharge the debt. Therefore, she is entitled for 2/9th share in the suit schedule property.
11. Defendants 4 to 7 who were added as legal representatives of 2nd defendant in IA No. 847 of 1997 dated 17-10-1997, defendants 4, 6 and 7 remained ex-parte.
12. The 5th defendant filed a written statement disputing the facts stated in the plaint
13. It is stated that he continued to be the member of the joint family until 15-2-1966 consisting of the 1st plaintiff, 2nd defendant, 3rd defendant Prabhakar Gupta including himself While so on 15-2-1966 having received Rs. 2,500/- he relinquished his rights in the joint family properties in favour of the 1st plaintiff, defendants 2 and 3 and Prabhakar Gupta and executed a registered relinquishment deed. Thereafter, the 1st plaintiff, 2nd defendant, 3rd defendant and Prabhakar Gupta continued to be the members of the joint family and the 1st plaintiff was the manager of the family.
14. It is stated that the 1st plaintiff as a manager of the family had purchased 2/3rd share in the plaint schedule property and made construction with the joint family funds and therefore, the 2nd defendant became entitled to 1/4th of 2/3rd that is 1/6th share in the plaint schedule property. Hence, the plaintiffs are not entitled for 2/3rd share.
15. It is stated that the 2nd defendant until two years prior to her death was living with the plaintiffs enjoying her 1/6th share in the plaint schedule property. It is stated that after demise of 2nd defendant, himself, 1st plaintiff, 1st defendant, 3rd defendant, 4th defendant, the defendants 6 and 7 have become entitled to 1/6th share of the 2nd defendant and that they are entitled to 1/36th share. Hence he is entitled for 1/36th share.
16. The 1st defendant has filed additional written statement stating that after the death of 2nd defendant he become entitled to 1/36th share in addition to his 1/3rd share.
17. Basing on the respective pleadings, the following issues were framed for trial:
1. Whether the plaintiffs share is correct;
2. Whether the defendants 2 and 3 are entitled to 1/3rd share each in 2/3rd share of the plaintiffs; and
3. To what relief?
An additional issue framed was to the following effect:
4. Whether the 5th defendant is entitled for any share ?
18. On behalf of the plaintiffs, PWs.1 to 3 were examined and Exs.A-1 to 19, 19 (a) 20 and 20 (a), 21 and 21(a), 22, 22 (a) and 22 (b) and Exs.A23 to 30. On behalf of the defendants, DWs.1 to 4 were examined and Exs.B-1 to B-6 were marked. Exs.C-1 and C-2 were marked through PW-3.
19. The trial Court after considering the evidence adduced both oral and documentary by the impugned judgment and decreed the suit as prayed for in the following terms:
"1. That the plaintiffs be and are entitled for 2/3rd share in the suit schedule property after division of plaint schedule property by metes and bounds:
2. That the plaintiffs be and are hereby at liberty to file a separate petition for passing a final decree; and
3. That the defendants 1, 3 to 7 do pay the plaintiffs a sum of Rs. 13,902-50 towards the costs of this suit"
20. Aggrieved by the same, this appeal is preferred by the 3rd defendant alone in the suit.
21. Learned Counsel for the appellant-defendant No. 3 mainly contended that inasmuch as it has come in the evidence of the defendants 3 to 5 that Ex.A-1 site and the subsequent construction of the lodge was made from the joint family funds consisting the 1st plaintiff and the defendants, the trial Court erred in decreeing the suit in favour of the plaintiffs to the extent of 2/3rd share in the plaint schedule property. Learned Counsel also contended that the trial Court failed to consider the discrepancies in the evidences of PWs.1 and 2. It was pointed out that inasmuch as the 2nd plaintiff who was examined as PW-2, was only three years old as on the date of Ex.A-1 sale deed dated 5-5-1966, he could not have acquired any wealth to purchase the property in question, but his name was deliberately included in the sale deed Ex.A-1 dated 5-5-1966 only to defeat the rights of the other co-sharers. Learned Counsel further contended that the trial Court failed to see that the lodge in question was constructed with the joint funds of the family consisting of both the plaintiffs and the defendants.
22. Learned Counsel for the plaintiffs-respondents 1 and 2, on the other hand, contended that the plaintiffs and the 1st defendant having purchased the site in question and having decided to develop the same into a lodge and do business approached the Vysya Bank at Madanapalli for taking loan in the year 1969-70 and if really there was joint family funds, as alleged by the defendants, there was no necessity for them to take loan from Vysya Bank. Learned Counsel further stated that the fact they have raised amounts from the Vysya Bank itself shows that there was no joint family funds and they intend to do business independently with their own sources. Learned Counsel also stated that the other brothers i.e., defendants 3 to 5 since they have nothing to gain or loose in the venture of construction and doing business in lodging have confirmed through their affidavits dated 29-12-1969 to the Vysya Bank, marked as Exs.C-1 and C-2, that the property covered by Ex.A-1 is the self acquired property of the 1st plaintiff and the 1st defendant alone and thus considering all these aspects of the matter the trial Court rightly allowed the suit decreeing 2/3rd share in favour of the plaintiffs and 1/3rd share in favour of the 1st defendant. It is, therefore, stated that there are no merits in the appeal and the same is liable to be dismissed.
23. Having heard the learned Counsel for the parties and having perused the relevant material on record, the only point that arise for consideration in this appeal is whether the plaint schedule property is the separate property of the plaintiffs and the 1st defendant or joint family property, as alleged by other defendants, liable for partition among all beneficiaries.
24. It is on record that the 1st plaintiff having separated from the joint family, as along back as in the year 1960, is stated to have started provisions store in wholesale and retail at Madanapalle Town with effect from 27-6-1960, which is borne out from Exs.A-27 and 28, which are copy of the certificate of registration issued under the Central Sales Tax (Registration and Turnover) Rules, 1957, and the receipt of payment of general sales tax amount, respectively. The 1st defendant has not filed his written statement resisting the suit claim made by the plaintiffs. He only sought for 1/36th share of his deceased mother-defendant No. 2 in addition to his 1/3rd share. It has been stated in the written statement filed by the 2nd defendant (since deceased) adopted by 3rd defendant-appellant herein, that as long back in the year 1952 itself the 1st defendant had relinquished his right under a registered Relinquishment Deed dated 24-11-1952 and got separated from the family.
25. It is not in dispute that the plaint schedule property under Ex.A-1, dated 5-5-1966 is registered in the name of the 1st plaintiff, his son the 2nd plaintiff and his brother 1st defendant by paying a valid consideration of Rs. 26,400/- to the legal heirs of Kolar Ananthayyar. The crucial aspect is plaintiffs are claiming partition and separate possession of the property being co-vendees under Ex.A-1, but not by way of inheritance- Under those circumstances, it is to be considered whether the property under Ex.A-1 was purchased by augmenting their own sources or from the joint family funds. It is settled proposition of law that there is no presumption that any property, whether movable or immovable, held by the members of a joint Hindu family, is the joint family property. The burden lies upon the person who assert that a particular property is joint family property to establish that fact. It is also to be noted that if the party who asserts it to be the joint family property and proves that there was sufficient joint family funds from and out of which the said property could have acquired, then the burden shifts on to the member of the family who set up the claim that it is his personal property and has been acquired without any assistance from the joint family property/funds.
26. It shall have to be seen whether the defendants 3 to 5 brothers and defendants 6 and 7 sisters, of the 1st plaintiff and the 1st defendant, have discharged this initial burden of proving that the plaint schedule property was acquired from and out of the joint family funds or not.
27. The law on this aspect of the case, namely the nature of the property in the name of a member of the joint family, is well settled. The sum and substances of the various decisions relied on by the learned Counsel on both sides, right from the classic decision rendered way back in 1947 in the case of Appalaswamy v. Suryanarayanamurti, AIR 1947 PC 189, is consistent. The relevant observation in the said decisions is as follows:
"Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established 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 burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."
In Rukhmabai v. Laxminarayan, , the Apex Court at Para (5) of the judgment held thus:
"There is a presumption in Hindu Law that a family is joint. There can be a division is status among the members of a joint Hindu family by definement of shares which is technically called "division of status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need not receive any share in the joint estate but may renounce his interest therein; his renunciation merely extinguishes his interest in the estate but does not affect that status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property whether movable or immovable held by a member of a joint Hindu family is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property."
The Apex Court in a decision rendered in Mudigowda Godappa Sanka v. Ramchandra Revgowda Sankh (dead) by his LRs., ,
following the rule laid down in the above Privy Council case (supra), observed thus:
"The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possession any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as co-parcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate."
In Ranganayaki Ammal v. S.R. Srinivasan, 1978 (1) MLJ P.56 (DB), the Division Bench of Madras High Court at Para 5 of the judgment held thus:
"...the person who comes to Court to establish that the properties standing in the name of the other co-parceners or members are joint family properties which stemmed from the joint family nucleus. While considering the term nucleus it should always be borne in mind that such nucleus has to be established as a matter of fact and the existence of such nucleus cannot normally be presumed or assumed on probabilities. The extent of the property, the income from the property, the normal liability with which such income would be charged and the net available surplus of such joint family property do all enter into computation for the purpose of assessing the content of the reservoir of such a nucleus from which alone it could, with reasonable certainty, be said that the other joint family properties have been purchased unless a strong link of nexus is established between the available surplus income and the alleged joint family properties. The person who comes to Court with such bare allegations without any substantial proof to back it up should fail."
In Gurmukh Ram Madan v. Bhagwan Das Madan, AIR 1988 SC 2776, the Apex Court at Para 6 observed thus :
"The contentions put forth before us are identical to those which are urged in the trial Court and the High Court There is no material to show that the property was joint or the family possessed joint funds. There was no nucleus to augment or add by way of accretion to the same. There is no material to show that the property was joint or the family possessed joint funds. There was no nucleus to augment or add by way of accretion to the same. There is no material to show that the appellant had contributed any sums of money in the purchase of the house or any contribution thereof. Evidence on record out weight the proof sought to be placed by the appellant to prove that he had any separate income so as to acquire. Item No. 1 property. In the absence of evidence either way which party would succeed and which fail is the question. The legal position is well settled as we will presently notice."
"18. 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 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 could be 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 available."
In V. Srisailam v. V. Krishna Murthy, , this Court dealing with a similar issue observed thus:
"Hindu Law-Joint family-There is no presumption that a Hindu joint family at all times possess joint family properties. Even a member having undivided share in the joint family property may acquire separate and individual items, while still sharing the common mess or common worship, unless it is proved that there is a co-parcenary property, there cannot be any blending or self acquired property into common hotch pot."
"Hindu Law-Joint Family Properties-Plaintiff asserting that the suit properties are joint family properties has to prove the same. When the plaintiff did not examine a person who is admittedly well acquainted with the facts, adverse inference can be drawn against the plaintiff. In the case of defendants whose defences are common, if one of them who is well acquainted with the facts is examined, no adverse inference can be drawn on the ground that other defendants are not examined."
28. This appeal is filed by the 3rd defendant only and as such the judgment and decree has become final and binding in respect of other defendants i.e. defendants 1, 4 to 7. The 2nd defendant is no more alive.
29. The 1st defendant was examined himself as DW-1, the 3rd defendant was examined as DW-2 and the 5th defendant was examined as DW-3 are all brothers. Admittedly, PW-2, DWs.1 to 3 have relinquished their rights in the joint family properties in favour of other members even prior to the date of Ex.A-1 sale deed. It has come in the evidence of the 1st plaintiff who was examined himself as PW-1 that after separating from the joint family himself and DW-1 did business for sometime and later got separated and they were doing business independently by the date of purchase of the suit site under Ex.A-1 along with DW-1 and they have purchased the suit property from out of their own funds. PW-2 is who the brother of PW-1 and DWs.1 to 3 also deposed that the suit property is the self acquired property of the 1st plaintiff and 1st defendant and neither he nor any of his other brothers have a share in the suit property. The 1st defendant who was examined as DW-1 in his deposition admitted that the plaintiffs are entitled to 2/3rd share in the suit property. DW-2 who is the 3rd defendant-appellant herein stated that himself, 1st plaintiff, and another brother by name Prabhakar Gupta (since deceased) and their mother-2nd defendant remained as joint family till the year 1970 and certain lands were there in his name and in name of the 2nd defendant and by selling those lands, the 1st plaintiff made use of the sale proceeds for the purpose of construction of the lodge over the suit schedule land. Thus, even according to the 3rd defendant-appellant they were residing jointly till the year 1970. Though it is asserted that PW-1 remained in the joint family till the purchase of the suit property under Ex.A-1 and the construction of the lodge over it, no evidence has been placed by the defendants 3 to 5 to show that PW-1 continued in the joint family. Even if it is presumed that PW-1 was continued to be in the joint family as on the date of purchase of Ex.A-1, there is no material whatsoever adduced by the defendants to infer that the property under Ex.A-1 was purchased from and out of the joint family nucleus, except the self serving oral evidence of the defendants. Even if proof of joint family exists, that does not lead to the presumption that the property held by a member of the family to be joint unless anyone asserting that any item of the property is joint and establish the same by acceptable evidence. Further it is the admitted fact that the plaintiffs and the 1st defendant separated from the joint family and set up their own businesses deriving independent income from known sources. In the instant case, no evidence much less any surrounding circumstances is neither produced nor pointed out so as to inspire the confidence of the Court that the suit schedule property was acquired with the aid of the joint family nucleus.
30. It is also to be noted that the plaint scheduled property was subject-matter in insolvency proceedings in IP Nos. 6 and 9 of 1972 and the 3rd defendant-appellant herein was party to the said proceedings. In the affidavit filed by the 3rd defendant in the said proceedings, marked as Ex.B-106, on the file of Sub-Court, Madanapalle, at Para (3) it was stated thus:
"(3) It is also further submitted that the properties covered by the sale deed dated 5-5-1966 in favour of P.N. Ratnamiah and Venkatramaniah are their self acquired properties and out of which I am not having any right, title or interest whatsoever."
31. The statement submitted by the defendants 3 to 5 marked as Ex.A17 to the General Manager Vysya Bank, is also to the same effect that they have no right and title to the property covered by the registered sale deed dated 5-5-1966 and the vendees under the said sale deed acquired the said property through their own earnings and acquisition. However, in spite of this communication, the Vysya Bank desired to have sworn affidavits from them. The affidavit submitted by the 3rd defendant-appellant was marked as Ex.C-1 dated 29-12-1969. Similar affidavit was also submitted by the 4th defendant which was marked as Ex.C-2 dated 29-12-1969 and they have not denied the execution of these sworn affidavits. It is true that under Section 54 of the Transfer of Property Act, 1882 any transfer of immovable property can only be made by means of a registered document and mere admission on the part of the owner of the property does not convey any transfer of the property from him to others.
32. From this it follows that since the other brothers have nothing to gain or loose in the business of plaintiffs and the 1st defendant, they have affirmed through affidavits that the property covered by Ex.A-1 is the self acquired property of the 1st plaintiff and the 1st defendant only.
33. In the background of this evidence, it emerges that the suit property under Ex.A-1 was acquired by the plaintiffs and the 1st defendant from out of their own funds but cannot be said to be from the joint family nucleus. The mother of defendants though was alive during the course of evidence, she was not examined to prove that the suit property was purchased from out of the amount derived from selling the lands at Vempalle, Chandramakulapalle and also the jewellary. Even if it is accepted that the 2nd defendant could not lead evidence due to old age or ill-health, none of the witnesses examined on behalf of the defendants testified the contents made by the 2nd defendant in the written statement. No details whatsoever are forth coming as to how amount was contributed from out of the alleged sale of the jewellary belonging to the 2nd defendant for purchasing the suit property and when it was contributed by whom to whom.
34. It is true that as on the date of acquiring the property under Ex.A-1 the 2nd plaintiff was stated be a minor of three years old, inasmuch as there is any law prohibiting him to admitting to the benefits and in the absence any legal disabilities pointing out, a minor can acquire the property during his minority. The fact that the 1st defendant allowed the 2nd plaintiff to be one of the vendee to the suit property itself indicates that his father 1st plaintiffs contribution might have been major including to cover the amounts towards 1/3rd share of the 2nd plaintiff. It has come in the evidence of DW-1 that he objected to the inclusion of the name of the 2nd plaintiff and insisted to include the name of their mother defendant No. 2 as one of the vendees under Ex.A-1 sale deed, but he is stated to have given up this demand as his 1/3rd share was protected under Ex.A-1. In any case, in view of the categorically admission made by the 1st defendant in his evidence to the effect that the plaintiffs have got 2/3rd share in the suit property and he has no objection for partitioning as such, it is otiose to go into that issue.
35. It is nobody's case that the 1st plaintiff was neither the eldest son of the family nor acted as Kartha of the joint family. There is no evidence that he had control or managed the affairs of the funds at any point of time. From Ex.A-27 it is clear that 1st plaintiff has established his business at Madanapalle on his own and the 1st defendant also established his own business having left the joint family by executing a registered relinquishment deed dated 24-11-1952.
36. On the above analysis, this Court is of the considered view that the findings of the trial Court in decreeing the suit are based on evidence and there are no grounds whatsoever to interfere with the same. The appeal is, therefore, dismissed. There shall be no order as to costs.