2007 Supreme(SC) 222

2007(3) Supreme 209
SUPREME COURT OF INDIA
(From Madras High Court)
S.B. Sinha and Markandey Katju, JJ.
Chinthamani Ammal—Appellant
versus
Nandagopal Gounder & Anr.—Respondents
Civil Appeal No. 6198 of 2000
Decided on 20-2-2007
Counsel for the Parties :
For the Appellant : K. Ram Kumar, Advocate.
For the Respondents : K.K. Mani and Mayur R. Shah, Advocates.

IMPORTANT POINT
In law there exists a presumption in regard to the continuance of a joint family. The party who raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition.

Headnote:HINDU LAW—Hindu Succession Act, 1956—Section 14(1)—Hindu Women’s Right to Property Act, 1937—Joint family property—Presumption in regard to continuance of joint family—Party who raises a plea of partition is to prove the same—Appellant’s father ‘K’ and respondent 1 were brothers, members of a joint family—‘K’ died in year 1943—Mother of appellant and the appellant were admittedly looked after by respondents—However, mother of appellant left the family in or about 1945 and married another person—Appellant after her marriage claimed a share in the property—As possession of respondents was sought to be disturbed, they filed a suit for declaration and injunction against—Appellant’s case that her father ‘K’ had made an unequivocal declaration before his death that he intended to separate himself from his brother—However, no evidence was brought on record to establish this declaration on the part of ‘K’ to separate himself from the joint family —Trial Court held that ‘K’ died in year 1943 as a member of undivided joint family and thus, appellant had derived no right, title and interest in the said property by succession or otherwise—However, first Appellate Court held that father of appellant died as a divided member of the joint family, therefore, appellant became entitled to claim half share—In second appeal, High Court disallowed appellant’s claim—Whether appellant could claim any right, title and interest whether in terms of the provisions of the Hindu Women’s Right to Property Act or as a successor of her father—(No)—Civil Procedure Code, 1908—Section 100—Second Appeal.

       Held : The legal position that the appellant herein could not claim any right, title and interest whether in terms of the provisions of the Hindu Women’s Right to Property Act, 1937 or as a successor of the said Kesava Gounder, if the joint status was not severed, is not in dispute. The Hindu Women’s Right to Property Act was not applicable in relation to agricultural land. The State of Madras made an amendment in that behalf in the year 1947 whereafter, only a widow became entitled to claim limited ownership in the share of her husband. The mother of the appellant i.e. wife of the said Kesava Gounder, thus, did not derive any right, title and interest in the property of her husband in the year 1943, when he expired. Furthermore, admittedly, she left the family and married another person in the year 1945 and thus the question of her deriving any benefit in terms of the 1947 amendment also did not arise.(Para 12)

       Before the learned Trial Judge, the parties adduced their respective evidences. The learned Trial Judge had an occasion to look to the demeanour of the witnesses. He came to the conclusion that the properties in suit had all along been held as a joint family property opining that the father of the appellant did not have any divided status as alleged or at all.(Para 13)

       The first Appellate Court reversed the said finding relying only on or on the basis of the statement made by DW-2 - the aunt of the appellant which has been noticed by us hereinbefore. The said statement by itself does not prove that the said Kesava Gounder made an unequivocal declaration that he intended to separate himself from his brother or the same was duly communicated to the other co-sharers. DW-2 did not say when such a declaration was made in presence of all coparceners. It was not stated that at the time of making such purported declaration, the respondents were present.(Para 14)

       If such a declaration had been made and the respondents herein accepted the same, ordinarily, not only the respondents would be asked to divide the property by partition by meets and bounds but also to look after the said property which fell in the share of the appellant. Allegedly, Respondent No. 1 was requested to look after his family and not their property. The property, admittedly, continued to be possessed as a joint property. It was never partitioned by meets and bounds. Appellant never paid any rent separately. No revenue record was prepared in her name.(Para 15)

       If having regard to the nature of oral evidences adduced before it, the learned Trial Judge came to the conclusion that the appellant had failed to prove her case, the first Appellate Court, in our opinion, as has rightly been held by the High Court, could not have reversed the said finding without assigning sufficient and cogent reason therefor.(Para 16)

       In law there exists a presumption in regard to the continuance of a joint family. The party who raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefor. (Para 17)