P. Sathasivam, J.
1. First defendant in O.S.No. 1985 of 1977 on the file of First Assistant Judge, City Civil Court, Madras is the appellant. First respondent/ plaintiff in the said suit filed the same for partition and separate possession of his l/4th share in the suit properties. The court below passed a preliminary decree for partition and separate possession of 5/ 16th share in the property mentioned in Ex.B-4 and l/3rd share of other properties in favour of the plaintiffs and 2nd defendant. Aggrieved by the said decree, the first defendant has filed the present appeal.
2. The case of the plaintiff is briefly stated hereunder: The plaintiff and 2nd defendant are the sons of deceased Arumuga Naicker through his second wife, namely, the third defendant. The first defendant is the son of the said Arumuga Naicker through his deceased first wife. The above said Arumuga Naicker married the third defendant in the year 1938 after demise of his first wife in 1935. The father of the plaintiff died intestate in the year 1943 leaving his 3 sons and his widow. After the demise of the said Arumugha Naicker in 1943, the first defendant being his eldest son was incharge of the intestate estate namely Nanja lands of 28 cents in R.S.No. 295/ 2 and 32 cents in R.S.No. 295/3 and Punja lands of 74 cents in R.S.No. 152/3 and 88 cents in R.S.No. 1/ 7 of Kolathur Village, Sriperumpudur Taluk, Chingleput district. It is further contended that in the year 1950, the first defendant along with the plaintiff and the other defendants came to Madras and started milk vending business with the help of jewels and cash and agricultural income belonging to the family. Till 1950, all the family members were living together at Kolathur Village. The first defendant was not having and independent means of his own. With the nucleus left by the father, a small milk business was started in Madras in 1950 by vending milk. Later on in the year 1954, two heads of cattle and in 1955, four heads of cattle and in 1955, another two heads of cattle and in 1957 another two heads of cattle were purchased. The milk business was in progress. The milk business gradually developed and became profitable. In 1969, there were as many as 30 heads of cattle both cows and buffaloes. With the profits and earning from the milk business, a taxi MSX.3152 was purchased by the first defendant in his name in 1957 and another tax MSX.8283 was purchased and in 1960 another taxi MSX.8174 was purchased. In the year 1965, one taxi was purchased by the first defendant in the name of his wife. In the year 1963, he purchased a taxi MSX.8345 in the name of the second defendant and a taxi was purchased in the name of a friend of first defendant by name P. Selvaraj. In 1957, another taxi was purchased by the first defendant in the name of the plaintiff. Four other taxis were purchased from out of the earnings of the milk business. Though the abovesaid taxis were under on hire purchase, the instalments were completely paid from the income from the milk business and from the taxis. When the taxi business became lucrative, the heads of cattle were sold closing the milk business. Though the taxis were standing in the name of the different persons, the first defendant enjoyed the entire income from the taxi business. The plaintiff was not given any share in the income from the taxi business or from the milk business. Subsequently, the first defendant performed the marriage of the plaintiff and the second defendant in the year 1967. Till then, they were all together with a common mess at Door No. 21, Mulla Shaib Street, Madras. After the marriage, the plaintiff and the second defendant are living in two rooms each. The plaintiff and the defendants are in joint possession of the suit properties. The first defendant purchased the house in 21, Mulla Shaib Street in his name by a sale deed dated 1.9.1955 from out of the earnings of the milk and taxi business started from the nucleus left by the father. The first defendant is collecting rent from the house appropriating the same for himself without giving any share to the plaintiff or to the other defendants. The first defendant purchased lands in Kolathur Village to an extent of 7 acres and 23 cents from the joint family nucleus left by the father. He also purchased lands in Vilambakkam village to an extent of 2 acres and 90 cents from the joint family nucleus. The first defendant has been promising to effect partition so far, but with ulterior motive, he has been evading to do so in spite of notice dated 10.5.1976 which necessitated the plaintiff to file the present suit.
3. Third defendant did not contest the suit and remained ex parte.
4. Second defendant filed a written statement supporting the plaintiff's case.
5. The contesting party, namely, first defendant has filed a written statement, wherein it is contended that though his father died intestate, he did not possess or own any property much less Nanja lands and Punja lands as mentioned in the plaint either in Kolathur or other village. He owned a small extent of land, but he has sold the same even during his life time. The first defendant came to Madras in the year 1943 itself. He was doing his own business in Madras living separately. Immediately after the marriage of the third defendant with his father, the first defendant left the family and has been living independently. He has started his own business with his own hard labour and money. As his father did not leave any property, the question of joint family nucleus does not arise. The first defendant was able to save considerable amount with his own efforts and purchased cattle from his own earnings. He was able to acquire properties from his own earnings. He purchased one taxi. He denied the allegation that he was owning more number of taxis. He also denied the statement that he performed the marriage of the plaintiff and the second defendant. Their marriages were performed with the funds saved by them. The first defendant has purchased the house mentioned in the plaint from his own funds. He did not purchased the same with the full of the alleged joint family funds. The plaintiff and other defendants have no manner of right, title and interest in the suit properties. The plaintiff and the other defendants have no manner of right, title and interest in the properties mentioned in para 12 of the plaint. The first defendant was living with his father till the demise of his mother and thereafter for 2 years. Trouble started by the entry of the third defendant into the family. With the result of this the first defendant has left the family and taken to live separately in the same village, by putting his own hut and living in it. When he came to Madras, he had a job under one Velu Naicker, who gave this defendant the necessary protection. The said Velu Naicker celebrated the marriage of the first defendant and helped him to start his own business in vending milk. With his own efforts and hard work the first defendant was able to save some money and with the money saved by him, he has developed his business. Subsequently he started a tea shop. Thereafter, he wanted to try his luck in running a taxi business. In taxi business he suffered heavy loss. From his own funds, he purchased a small extent of land in his village. From his own efforts, he has purchased premises in Door No. 21, Mulla Sahib Street. He has discharged the mortgage over the said house. The properties owned by the first defendant are his absolute properties. The plaintiff and the other defendants have no right over the same. Taking pity on the helplessness of the plaintiff and the other defendants, he allowed them to occupy one room each in the premises belonging to the first defendant. The plaintiff and the other defendants are living in the said premises as licensees. Recently, the first defendant wanted them to surrender possession. The result of which is the present suit. The plaintiff and the other defendants cannot have any right over the suit properties.
6. Plaintiff himself examined as P. W. 1 and he has examined 5 more witnesses as P.Ws.2 to 6 and marked Exs.A-1 to A-28 in support of his claim. On the other hand, the first defendant himself was examined as D.W.1 and he has also examined one Kanaku and M. Velu Naicker as D.Ws.2 and 3 respectively apart from marking Exs.B-1 to B-30 in support of his defence. Exs.C-1 to C-3 were marked through court. The learned First Assistant Judge, City Civil Court, in the light of the above pleadings, after framing necessary issues, passed a preliminary decree for partition and separate possession of 5/ 16th share in the property mentioned in Ex.B-4 and l/3rd share of other properties in favour of the plaintiff and the second defendant. Aggrieved by the said decree, the first defendant has filed the present appeal as stated above.
7. I have heard Mr. V. Narayanaswamy, learned Counsel for the appellant, Mr. Viswanathan learned Counsel for first respondent.
8. Learned counsel for the appellant after taking me through the pleadings and the entire evidence, submitted that in view of Ex.B-4 dated 24.3.1942, his father Arumugha Naicker was not possessed any property and in the absence of any joint family nucleus, the court below committed an error in granting preliminary decree if the entire suit properties are joint family properties. He also submitted that after marriage, the 1st defendant settled at Madras even in the year 1943 and by his own efforts and earnings, he started milk business, purchased taxis and from and out of the said business and earnings, he purchased lands at Kolathur village as well as properties at Madras. Inasmuch as all the above factual position have been placed before the court by the first defendant, the Court below ought to have dismissed the suit.
9. On the other hand, learned Counsel for first respondent/plaintiff submitted that inasmuch as there was no sale under Ex.B-4 in favour of P.W.3 since the said document was executed benami in order to avoid from the creditors of the father, Arumugha Naicker, the joint family possessed several nucleus in the form of agricultural lands. He also submitted that the plaintiff as well as defendants came to Madras in the year 1950 and started milk vending business by purchasing cows. By their joint efforts and earnings, they also purchased taxis. From the joint earnings only the first defendant purchased lands at Kolathur village and house property at Madras in his name. In such circumstance, according to him, the court below rightly granted preliminary decree for partition in favour of the plaintiff and the second defendant. Hence, according to him, there is no merit in the appeal which deserves for dismissal. 1 have carefully considered the rival submissions.
10. There is no dispute with regard to the relationship of the parties. The first defendant is the son of Arumugha Naicker through his first wife. The plaintiff and second defendant are the sons of the said Arumugha Naicker through his second wife-Alamelu, who is also impleaded as third defendant. The said Arumugha Naicker married the 3rd defendant as his second wife in 1938 after the demise of his first wife in 1935. There is also no dispute that the plaintiff's father died instestate in the year 1943 leaving his three sons, namely, the plaintiff and defendants 1 and 2 and his widow, the third defendant as his heirs to succeed his estate. It is the definite case of the plaintiff that his father had left sufficient nucleus in the form of agricultural lands both Nanja and Punja in Kolathur Village, Sriperunpudhur Taluk. From the said joint family nucleus, according to the plaintiff, all the family members settled at Madras in the year 1950 and started milk vending business with the help of money obtained from the jewels, cash as well as agricultural income belonging to their father. It is also his definite case that from the milk vending business, they purchased several taxis in the name of first defendant, his wife, plaintiff and second defendant. With the income from the milk vending business, earnings from the taxis, according to the plaintiff, the first defendant purchased lands at Kolathur and house property at Madras in his name. Since there was misunderstanding, the plaintiff demanded for partition of his l/4th share in the properties, which was not conceded by the first defendant. On the other hand, it is the case of the contesting first defendant/appellant herein that even during the lifetime of his father, the entire agricultural lands in Kolathur Village had been sold in favour of one Velu Naicker under Ex.B-4 sale deed dated 24.3.1942. In view of the disposal of the entire agricultural lands in favour of the said Velu Naicker, their father had not left any property for them. It is also his case that after the marriage of the third defendant by his father, he left separately and he was earning with the assistance of Velu Naicker. After his marriage, he came to Madras even in the year 1943 and from his earnings, he started milk vending business by purchasing cows. From the income of milk vending business and by his efforts, he purchased taxis. His wife also purchased one taxi in her name. From and out of the earnings of milk vending business, taxis and by his own efforts, he purchased lands at Kolathur Village and house property at Madras. In other words, according to him inasmuch as his father had left no joint family nucleus and by his own business, efforts and earnings, he purchased the suit properties, hence neither the plaintiff nor the other defendants are entitled to any share. In such circumstance, the point for consideration in this appeal is whether Arumugha Naicker had left any joint family nucleus and whether the suit properties were purchased by the joint effort of the plaintiff and defendants or they were self-acquired properties of the first defendant.
11. In order to substantiate the claim of the plaintiff, he has pleaded in the plaint that after the death of Arumugha Naicker in 1943, the first defendant, eldest son of the family, was incharge of the intestate properties, namely, Nanja lands of 0.28 cents in R.S.No. 295/2 and 0.32 cents in R.S.No. 295/3 and Punja Lands of 74 cents in R.S.No. 295/3 and Punja lands of 74 cents in R.S.No. 152/3 and 88 cents in R.S.No. 1/7 in Kolathur village, Sriperumpudur Taluk. The above particulars are furnished in para 4 of the plaint. In the further paragraphs the plaintiff has referred to the joint milk business started at Madras by selling jewels, cash and agricultural income from the lands belonging to his father, purchase of taxis in the name of first defendant, plaintiff and second defendant as well as purchase of lands at Kolathur and house property at Madras. In the written statement filed by the contesting first defendant, he has disputed the extent and survey numbers mentioned in para 4 of the plaint. According to him, only a small extent was owned by his father Arumugha Naicker and even the same was sold during his lifetime. He has specifically averred in the written statement that even in the year 1943, he came to Madras and was doing his own business and was living separately. In categorical terms he has averred that "he had never had any benefit from the so called joint family properties and the father of this defendant never had any property to be left behind him and which could have formed the nucleus for this defendant to start his business. Third defendant with his own efforts was able to save considerable amount and has purchased cattle and with the help of his earnings from his business he was able to acquire properties."
12. A careful perusal of the pleadings of both parties, more particularly the specific plea taken by the first defendant would show that their father Arumugha Naicker was not possessed of any property since even during his lifetime he had sold the said agricultural lands in favour of Velu Naicker under Ex.B-4.
13. Eventhough in para 4 of the plaint it is pleaded that their father Arumugha Naicker had left Nanja and Punja lands in Kolathur village, for the reasons best known to the plaintiff, some of the survey numbers were not shown in the schedule of properties. Further the plaintiff has very much relied on Ex.A-2 which is undated. A reading of Ex.A-2 shows that the last four items mentioned therein are not found in the plaint schedule. Likewise, the plaintiff as P.W. 1 in cross-examination has admitted that survey No. 295/2 belongs to Varadappa Naicker, who is his maternal grand-father. In this regard, he deposed thus.
Likewise, he has not mentioned some of the survey numbers in his evidence as pleaded. A perusal of para 4 of the plaint averment, Schedule to the plaint, Ex.A-2 coupled with the oral evidence of P.W.1 would go to clearly show that the claim made by the plaintiff in para 4 of the plaint is wrong and unacceptable. In this regard, the first defendant has very much relied on Ex.B-4. It is a registration copy of the sale deed dated 24.3.1942 executed by Arumugha Naicker in favour of Velu Naicker. By virtue of the said sale deed almost the entire properties of Arumugha Naicker had been sold to Velu Naicker. Further, the survey numbers, namely, 301 and 302 mentioned in Ex.A-2 are not found place in the plaint. D.W.1 has also deposed that there is no signature of his father in Ex.A-2. He says.
In the light of the discrepancies and in the absence of the signature of Arumugha Naicker in Ex.A-2, which is an application for transfer of patta, as rightly pointed out by the learned Counsel for the appellant, Ex.A-2 is prepared for this case and it is a fabricated document; hence no reliance need be given to Ex.A-2.
14. Now I shall consider the two important documents in this case, namely, Exs.B-4 and A-26.1 have already mentioned that under Ex.B-4, Arumugha Naicker has sold his entire properties in favour of Velu Naicker on 24.3.1942. It is the specific case of the first defendant that after Ex.B-4 absolutely there is no joint family nucleus since their father had not possessed any other property except few cents of agricultural lands. In this regard, it is worthwhile to mention that the plaintiff has not mentioned anything regarding Ex.B-4 even though it is a registered sale deed executed by Arumugha Naicker in favour of Velu Naicker. Only in evidence the plaintiff and other witnesses examined on his side deposed that Ex.B-4 is a benami transaction and the same was executed in order to avoid from the creditors of their father. As stated earlier, absolutely there is no whisper with regard to benami transaction under Ex.B-4 in the plaint. For the first time in the evidence the plaintiff as P.W.1 has deposed thus.
It is also stated that within three days the said lands have been re-conveyed under Ex.A-26 in favour of Arumugha Naicker by Velu Naicker. The said deed is an un-registered agreement dated 27.3.1942. In this regard, P.W.1 has deposed thus.
P.W.2, third defendant herein has deposed as follows.
The fact that after Ex.B-4 Velu Naicker was not possessed any land. P.W.2, his wife has deposed thus.
Velu Naicker was also examined as P.W.3. In Chief-Examination, he deposed thus.
Regarding the fact that Arumugha Naicker has not left any other property other than that mentioned in Ex.B-4, he admitted that
As stated earlier, the plea of benami was not taken in the pleadings. That was the reason for not framing a separate issue on this aspect. Only in the evidence they contended that the sale under Ex.B-4 is a benami in order to avoid re-payment of debts of their grand father. It is settled law that in the absence of specific plea it is not open to the parties to lead evidence and it is not safe to rely upon the oral evidence. Likewise Ex.A-26 which is also an unregistered agreement and it cannot be acted upon. Since it deals with an immovable property which is more than Rs. 100 as per Section 54 of the Transfer of Property Act, the said document cannot be relied upon for want of registration. In this regard, the learned Counsel for the first respondent/plaintiff very much relied on the oral evidence with regard to benami transaction. It is clear from Sections 91 and 92 of the Evidence Act that when there is an express document in this case, namely, Ex.B-4 registered sale deed, it is not open to the parties to adduce oral evidence contrary to the registered document. The Court below on the basis that Velu Naicker, who is one of the parties under Ex.B-4, deposed that the said document was a benami, accepted his evidence and passed a preliminary decree in favour of the plaintiff. The entire approach and conclusion of the court below in this regard is erroneous and the same cannot be sustained. In this regard, the decision of K.S. Palaniswamy, J., reported in The Melur Co-operative Marketing Society v. Salia Mariam (1972) 2 M.L.J. 406 is very much pressed into service. In our case, it is the oral evidence of the witnesses examined on the side of the plaintiff that non-money was paid by the said Velu Naicker and according to them, mere registration would not validate the said document. The very same question was considered by the learned .Judge in the said decision. In an identical circumstance the learned Judge has observed into following manner.
...Payment of the price is not necessarily a sine qua non to the completion of the sale. If the intention is that the property should pass on registration, the sale is complete as soon as the deed is registered, whether the price has been paid or not. Then the purchaser is entitled to sue for possession, although he has not paid the price. This would fellow from the words of Section 54 "price paid or promised or part paid or part-promised." If the price is not paid, the seller on that account cannot repudiate the sale and his only remedy is to sue for the price or the balance of the price unpaid.
The learned Judge has also observed that when the terms of the same deed are clear, it is not permissible to go beyond the terms thereof to find out the intention of the parties. In our case the recitals of Ex.B-4 are very clear and it is not advisable to accept the oral evidence of P.W.3 which is contrary to Ex.B-4. He himself has admitted that patta has been changed after the execution of Ex.B-4 Even though the plaintiff very much relied on Ex.A-26, which is an agreement of re-conveyance of the properties covered under Ex.B-4 in favour of Arumugha Naicker, inasmuch as the same has not been registered, the same cannot be relied upon as per Section 54 of the Transfer of Property Act. In Mathura Mohan Saha v. Ram Kumar Saha and Chittagong District Board I.L.R. 43 Mad. 790, is held that Section 54 of the Transfer of Property Act provides that a sale of tangible immovable property of the value of Rs. 100 and upwards can be made only by a registered instrument and that title to land, therefore, cannot pass by a mere admission when the statute requires a deed. Further, admittedly Ex.B-4 is a registered instrument. P.W.3 even though has stated that he had not gone to the registrar's Office at Sriperumpudur, the same cannot be accepted in view of the fact that the said document (Ex.B-4) is a registered one. He has also admitted that after getting his signature in the application form, patta has been changed. In cross-examination he deposed that
P.W.3 having signed in the presence of an Officer of the Registration Department, it is not open to him to depose differently. In this regard, Subramani, J. in a decision reported in Ramasami v. Krishnasami alias Krishnan and Ors. , has observed as follows.
Section 58(1)(c) of the Indian Registration Act says that any payment of money or delivery of goods made in the presence of the registering officer in reference the execution of the document and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution shall be endorsed the Registrar. Section 60(2) further provides that the endorsement of Sub-Registrar shall be admissible in evidence for proving that the facts mentioned in such endorsement occurred as mentioned therein. In such circumstances the onus lies in the person to prove that no consideration passed if he denies receipt of consideration.
As stated earlier, neither the plaintiff nor P.W.3 satisfactorily explained or proved the alleged benami transaction.
15. In Raghunath v. Kedarnath , their Lordships of the Supreme Court have held in the following manner.
...By the enactment of Act 21 of 1929 which by inserting in Section 49 of the Registration Act the words "or by any provision of the Transfer of Property Act, 1882" has, made it clear that the documents in the supplemental list i.e., the document of which registration is necessary under the Transfer of Property Act but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immovable property comprised therein, and so not affect any such immovable property.
In the light of the above proposition, it is not open to the plaintiff to rely upon Ex.A-26 which is an unregistered agreement.
16. In S. Venkappa v. Rangu , it is observed thus.
It is well-settled that the decision of a case cannot be based on grounds outside the plea of the parties, and that it is the case pleaded which has to be found.
In our case I have already pointed out that the case of benami has not been pleaded in the plaint; hence it is not open to the court below to adjudicate the plea of benami merely on the basis of the oral evidence of plaintiff and his witnesses.
17. No doubt the learned Counsel for the first respondent by relying upon a decision of the Supreme Court in Union of India v. Moksh Builders and Financiers , contended that the admission of P.W.3 proves the case of benami as contended by the plaintiff. As observed by him earlier, in view of Ex.B-4 which is a registered document, the oral evidence of P.W.3 in the witness box, more particularly in the absence of any plea in the plaint cannot be accepted; hence the said decision is not helpful to him.
18. The learned Counsel for the first respondent has also cited a decision of the Supreme Court in Kali Prasad v. Bharat Coking Coal Ltd. A.I.R. 1989 S.C. 1530. Relying on the said decision he contended that the first defendant was aware of the benami nature of Ex.B-4 and in such circumstance, even in the absence of any plea, one evidence of P.W.3 has to be accepted. In that decision their Lordships have held as follows.
Where the parties went to trial knowing fully well what they were required to prove and they had adduced evidence of their choice in support of the respective claims and that evidence was considered by both courts below, they could not be allowed to run round and say that the evidence should not be looked into.
There is absolutely no such situation arise in our case; hence the said decision is also not helpful to him. Hence, in view of the fact that there is no plea with regard to benami transaction, in view of specific recitals in Ex.B-4 and of the fact that Ex.A-26 cannot be relied upon and inadmissible in evidence, I hold that after Ex.B-4 the family of Arumugha Naicker was not possessed sufficient property or sufficient nucleus as contended by the plaintiff. The contrary conclusion arrived at by the court below is erroneous and cannot be sustained.
19. Now I shall consider the other aspects, namely, whether the first defendant had purchased the properties from his earnings or from the joint earnings of the plaintiff and the second defendant. The first defendant in para 3 of the written statement has categorically stated that he come to Madras even in the year 1943 and was having his own business and was living separately, In para 3 he has averred as follows.
This defendant emphatically denied the allegations in para 5 of the plaint and states that this defendant has come to Madras even in the year 1943 and was having his own business and was living separately. As a matter of fact the plaintiff and the other defendants have been living in the village. This defendant has immediately after the marriage of the 3rd defendant with this defendant's father left the family and has been living independently. He had nothing to do with his father or his to her sons and wife. It is a fact that this defendant left the house without any property and he has started with his own hard and money.
In para 8 he further stated as follows.
This defendant states that he is the first wife's son of his father and this defendant was living with his father till the life time of his father and thereafter for 2 years. The trouble has started by the entry of the 3rd defendant into the family with the result this defendant had to leave his father and live separately in the same village. He has put up his own hut and living unit. Here after he had to seek his livelihood and hence he left for. Madras and he got a job under one Mr. Velu Naicker.
In the evidence he deposed thus.
He also deposed that from and out of the earnings from the milk vending business he purchased the lands in his village. On the other hand, it is the case of the plaintiff that he and the first defendant as well as other defendants came to Madras in the year 1950 and started milk vending business with the help of jewels, cash and income from the agricultural lands belonging to their father. The plaintiff as P.W.1 has also deposed in chief-examination thus.
P.W.1 in cross-examination has admitted that first defendant alone came to Madras at first instance and thereafter they also jointed with him. In this regard, he deposed in cross examination as follows.
P.W.2 also deposed in chief examination thus.
P.W.6 has also deposed in chief examination thus.
In this regard, the learned Counsel for the first respondent relying on the evidence of D.W.3, submitted that the first defendant has started his milk business only after his marriage. The marriage took place in the year 1947. An analysis of the evidence on either side in this regard would falsify the contention of the first respondent herein. Accordingly, I hold that the first defendant had come to Madras well in advance in 1947 itself and started milk vending business at the first instance which was profitable and yielded adequate income for him to acquire properties in the year 1950 and 1951. The conclusion arrived at by the court below is contrary to the evidence placed by the parties.
20. With regard to joint exertion, there is no documentary evidence filed by the plaintiff. Except the oral evidence, the plaintiff has not substantiated his plea regarding joint labour and exertion. In Puthiavinayagam, Pillai v. Sivasankaran Pillai (1997) 1 M.L.J. 199 : (1997) 1 L.W. 482, this Court has held that when in a suit for partition, a party claims that any particular item or property is joint family property, the burden of proving that it is so rests on the party asserting it. Raju, J., in that decision has referred to two Division Bench judgments which lay down law on this aspect, and the same reads as follows.
Division Bench of this Court consisting of their Lordship S. Mohan, as the learned judge then was and S. Swamikkannu, J. elaborately reviewed the entire case law on the subject and held as hereunder.
(30) It is a well-established principle of law that when in a suit a party claims that any particular item of the property is joint family property, the burden of providing that it is so rests on the party asserting it. 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 affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help 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 help the property to be joint could have been acquired. A family house in the occupation of the members and yielding no income could not be a nucleus out of which acquisitions could be, made even though it might be of considerable value.
5. In Ponnnuswamy v. Meenakshi Ammal and Ors. , a
Division Bench of this Court consisting of Sathiadev, J. and Sivasubramaniam, J also had an occasion to deal with similar issue relating to the joint family and disputed claims between members of the joint family to a property as to whether such property was joint family property or self-acquired property of any member of the joint family. Sivasubramaniam, J. who spoke for the Division Bench reiterated the well-settled principles in this regard often found declared or reiterated in one or the other of the decisions of this Court as also the Apex Court in the following terms.
(9) In so far as the presumption in respect of joint family are concerned, the law is well-settled now. There is no presumption that a family, because it is joint possesses joint property or any property. When in a suit for partition, a party claims that any particular item or property is joint family property, the burden of providing that it is so rests on the party asserting it. According to the judicial pronouncements, to prove that a particular property is 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 presumption could be drawn that all the property possessed by the family is joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is matter of legal presumption. It is to be noted that in cases 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 affirmatively that the property was acquired without the aid of the joint family....
(10) In order to give rise to the presumption, the nucleus must be such that with its help the property claimed to be joint could have been acquired. Whether the evidence adduced by party is sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made, is one of fact depending on the nature and extent of the nucleus. 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. It is to be noted that this question of presumption differs from case to case and there cannot be a principle which will apply to all the cases. Even though the initial burden is on the plaintiff in case to prove that the house property, which is the subject matter of the present appeal, was purchased out of the joint family nucleus, when there is intrinsic evidence in the case to show that there was sufficient income from the admitted joint family properties, an inference can be drawn that the said property was purchased out of the joint family funds....
In the light of the principles enunciated in the above decision, let me consider whether there was any joint family nucleus and (sic)ether the suit properties were purchased by first defendant out of joint exertion and labour of the plaintiff and defendants 1 and 2 or purchased out of self earnings of first defendant alone. I have already concluded that except the oral evidence of P.W.1 and the witnesses examined on his side, there is no concrete evidence in the form of documents to substantiate joint exertion. On the other hand, the plaintiff who came to Madras even in the year 1947 started milk business with the assistance of one Velu Naicker and from and out of the income from the said milk business he purchased various properties during the year 1950 and 1951. The first defendant was assessed to income-tax and all notices and orders were sent only to the first defendant. Exs.B-15 to B-22 support the case of the first defendant. Even P. W. 1 admitted in his evidence that,
P.W.2 in her evidence has deposed thus.
A perusal of the above evidence clearly shows that neither the plaintiff nor the second defendant did raise any objection or produce any evidence with regard to the acquisition of properties by the first defendant. Hence I hold that there is no evidence to show that the suit properties were purchased by the first-defendant from the joint exertion of the plaintiff and defendants 1 and 2.
21. Regarding milk business I have already concluded that the plaintiff came to Madras even in the year 1947 and started milk business. Even according to P.W.1. he was born on 29.12.1942. If that is so, in the year 1947 he was five years old boy and in the year 1950 eight years old. P.W. 1 in his evidence has deposed that "1950
Inasmuch as even according to him, he was born in 1942, it is highly impossible to accept that even at the age of 8 (in the year 1950), he was doing milk vending business. In this context, he himself has admitted in cross-examination that
P.W.2 has also admitted that
Further, P.W.5 has deposed that
The above evidence clearly disproves the case of the plaintiff that he was doing milk vending business even in the year 1950 along with the first defendant. The contra conclusion arrived at by the court below in this regard is unsustainable.
22. Regarding jewels, cash, income from lands, it is the case of the plaintiff that in the year 1950 the first defendant along with the plaintiff and the other defendants came to Madras and started milk vending business with the help of jewels, cash and income from the agricultural lands belonging to the father. In the evidence, P.W.1 has not whispered anything regarding jewels. He has mentioned only about income from agricultural lands, and milk vending business. He deposed that
In cross-examination, he further deposed thus.
The evidence of P.W.2 falsifies the case of P.W.1, P.W.2 in her cross-examination has admitted that"
In view of the above evidence of P.W.2, the evidence of P.W.1 that P.W.2 had handed over her jewels to first defendant is not acceptable. Likewise, absolutely there is no detail by P. W. 1 regarding cash in hand for the purchase of the properties in the name of first defendant as contended by him. He has not furnished any information in his evidence as P.W.1. The other witness have also not spoken to regarding the cash in hand for starting milk vending business at Madras. Regarding income from the agricultural lands, the evidence of P.W.1 is unacceptable since he has not furnished the details regarding his agricultural income and expenses. As a matter of fact, I have already concluded that after Ex.B-4 absolutely there is no income from the agricultural lands. P.W.2 has also admitted that
P.W.6 also admitted that
The first defendant has also denied the suggestion that there was sufficient income from the agricultural lands.
23. Regarding purchase of taxis P. W. 1 has deposed thus.
Even the evidence of P.W.1 shows that he had also purchased a taxi in his name. Likewise, 2nd defendant had also purchased a taxi in his name. The first defendant's wife also purchased a taxi in her name. All the taxis were purchased by the plaintiff, defendants 1 and 2 and the wife of the first defendant during the period from 1958 to 1972. The above particulars would go to show that each one of them by their own earnings have purchased taxis in their names. Apart from this the first defendant by exercising his right has mortgaged his property, in that his wife and son joined in execution of the mortgage deed. A perusal of Exs.B-26 and B-28 shows that second defendant had also purchased some properties separately within his earnings. The business regarding running of taxis in the name of plaintiff and first defendant, his wife and in the name of second defendant clearly shows that each one of them has purchased taxis from their earnings and the claim of the plaintiff that taxi business was run by the joint family cannot be accepted.
24. As discussed earlier, the case of the plaintiff narrated in para 4 of the plaint regarding nucleus has not been proved. The plaintiff relied on Ex.A-2 in respect of other survey numbers which are not included in the said para 4 excepting survey number 295. Even otherwise Ex.A-2 has not been duly proved in evidence. The witnesses examined on the side, of the plaintiff admitted that nucleus of the joint family property consisted only of all the four items sold under Exs.B-4 to P.W.3. Though in the written statement it is made clear that all the nucleus had been sold away by Arumugha Naicker, no attempt is made by the plaintiff to explain the circumstances of Ex.B-4 sale as they did not file a rejoinder statement when there is specific averment in written statement. Further, there is no pleading of benami in the plaint, but a new case of benami was spoken to by P. Ws. 1 to 3 which is accepted by the trial court wit' out even framing an issue. Without a pleading the plaintiff wants to introduce a new case of Ex.B-4 being sham and nominal and it is well established that no new case can be developed either in the evidence or thereafter in the appeal, if it is not taken already in the pleading. The recitals of Ex.B-4 is very clear regarding the consideration in the form of specific debts being recited to be discharged by P.W.3. Even P.W.3 does not say that the said debts are not fictitious and the facts whether he has discharged the said debts is not relevant to decide whether title passed under the registered sale deed Ex.B-4. It is admitted by P.W.3 that pattas were transferred in his name and which should in his name for about 10 to 12 years even after the death of Arumugha Naicker and that thereafter he transferred the patta to D.W.1 and the circumstances in which he transferred the patta to D.W.1 is not at all explained satisfactorily by P.W.3. In this regard, I have already concluded that Ex.A-26 has not been property proved and it is also not admissible in evidence. Once title passed to P.W.3 under Ex.B-4, the fact that the possession was re-transferred by P.W.3 to D.W.1 is not relevant because in any event, it cannot be converted into a joint family nucleus by the mere fact admission of P.W.3 that title was not intended to pass under Ex.B-4. In the absence of a registered sale deed by P.W.3 to Arumugha Naicker, title and ownership of the property till date vests in law only in P.W.3 and not in the plaintiff's family. Therefore, the oral evidence adduced by P.W.3 regarding the income and surplus from Ex.B-4 items, is irrelevant and it cannot be construed to arise out of the joint family nucleus property which has gone out of the family under Ex.B-4, it cannot regain its character as a nucleus by the mere fact of P.W.3 's evidence and that it is in possession of P.W.1. Further the original title deed had been only with P.W.3 and that probably was the reason why it was not filed by the plaintiff in the trial court. The plaintiff's case that all the members of the joint family came to Madras together and started milk business is diluted in the oral evidence of P.Ws.1 to 3, which made it clear that first defendant had come to Madras well in advance of the others in 1947 itself and that he started milk business in the first instance which was profitable and yielded adequate income from him to acquire properties in 1950 and 1951. As stated earlier, there is no documentary evidence filed on the plaintiff's side to prove joint exertion of plaintiff and defendants 2 and 3 to constitute a joint family property. It is admitted that first defendant had been assessed as an individual by the Income-tax Department to the knowledge of the plaintiff and defendants 2 and 3 and that first defendant and his family members had been mortgaging and selling the properties to the knowledge of plaintiff and defendants 2 and 3. They had not protested at any point of time before 1976 when the disputes arose. Likewise, no acceptable evidence is given by P.Ws.1 and 2 that jewels, cash and income from the lands were utilised by the first defendant to acquire the properties. On the other hand, P.W.6 admits that there could have been no surplus income from the one acre and odd of land sold to P.W.3 which was the nucleus of the Joint family before the death of Arumugha Naicker. As it is admitted by P.W.3 that milk trade was done by P.W. 1 and D. W. 1 independently and that the milk trade was profitable, it is sufficient evidence to show the source of funds of D. W. 1 from which he acquired the properties in 1950 and 1951. Likewise, the plaintiff's case regarding taxis is irrelevant, since it is admitted that the taxis were acquired and run by the individuals and not as a family business. Further, they were acquired only in 1958 long after the properties were acquired by the first defendant in 1950 and 1951. One admitted fact that P.W.1 could not have to be joint exertion in the milk business is that he was nine years old when he came to Madras in 1950 or 1951. Further, the plaintiff and defendants 2 and 3 have failed to discharge the burden of proof to show that there was nucleus of the joint family property and that the income were utilised by first defendant by acquiring properties in 1950 and 1951 and therefore, the onus of proof does not shift to the first defendant to show that he had acquired properties from his own funds. On the other hand, the first defendant has proved his case by acceptable oral and documentary evidence.
25. In the light of what is stated above, the conclusion arrived at by the court below cannot be accepted, accordingly the suit filed by the plaintiff is dismissed and appeal is allowed. In view of the relationship of the parties, others shall be no order as to costs.
26. In view of the reasons mentioned above, C.M.P.Nos. 9533 of 1990 and 9842 of 1990 filed by first respondent are dismissed. C.M.P.Nos. 8412 of 1995 filed by the appellant is dismissed as unnecessary C.M.P.No. 13915 of 1995 and C.M.P.No. 14043 of 1995 are not opposed by other side; hence petitioners are ordered.