Presentation as to property standing in the name of H.U.F. as joint family property.

Plaintiffs are the appellants in this second appeal. They lost in both the courts below. The suit is for declaration of plaintiffs’ title and consequential injunction in respect of the suit property or in the alternative for possession thereof. Though in the plaint schedule, initially the suit property is stated to be comprised in S.No. 124/2, Rettakulam Village, measuring 2.42 acres, later in the said schedule, it is mentioned as follows: “P.S. Present enquiry on the part of the plaintiffs reveal that the suit property is included in S.No. 124/2 as well as 124/3 as a result of some recent measurements”.

2. Regarding the relationship between the parties, there is no dispute. One Veeran had two sons, Kathan and Semban. Kathan’s son is the 1st plaintiff and Kathan’s daughter is 3rd plaintiff, 2nd plaintiff is the son of the 1st plaintiff. Semban’s son is Thannah. Thannah’s wife is Kalli (D.W.2), Thannah’s sons are Sivankali and Kathan (junior). Among these, all but Kalli, Kathan (junior) and the plaintiffs, are dead.

3. According to the defendant, he is the purchaser of the suit property under Ex.B-1 dated 110. 1975 from the abovesaid Kathan (junior). The plaint is dated 26. 1976.

4. According to the plaintiffs, the suit property was purchased under Ex.A-1 dated 30.5.1944 for Rs.500 by Kathan as his exclusive property, and it devolved on the plaintiffs on his death. But, according to the defendant, the said Kathan so purchased in his name for the joint family of his branch and the branch of the defendant’s vendor Kathan (junior) since even then Semban and Thennah were dead, and Kathan, as the senior male member, was managing the entire family. Further, according to the defendant, there was a partition in the said family, whereby the present S.No.124/2, measuring 1.29 acres was allotted to Semban’s branch, while the present S.No. 124/3 lying just east of present S.No. 124/2 was allotted to Kathan’s branch and then under Ex.B-1, the property allotted to Semban’s branch was sold to the defendant.

5. Thus, the defendant concedes that the present S.No.124/3 is that of the plaintiffs. The dispute, therefore, is only with reference to the present S.No.124/2 measuring 1.29 acres.

6. The Courts below have accepted the case of the defendant and granted decree for declaration and injunction only in respect of the present S.No. 124/ 3 and dismissed the suit in respect of the present S.No.124/2.

7. So, the only two questions argued before me are, (1) whether the properties under Ex.A-1 (viz. the alleged old S.No.124/2, measuring 2.42 acres) was purchased by Kathan as his self-acquired property, or, as the property of joint family of Kathan and Semban’s branches, and (2) whether subsequently there was a partition between the said two branches.

8. I have considered the rival submissions. First of all, admittedly the property purchased under Ex.A-1 was in the name of Kathan. So, even assuming that there was a joint family of the abovesaid both the branches, it is for the defendant to plead and prove that the abovesaid purchase under Ex.A-1 was for the family of the said two branches. In other words, even assuming that Kathan remained a member of the said family, there is no presumption in law that Ex.A-1 property purchased exclusively in Kathan’s name was only purchased by the family of the said two branches. It is settled law that there is no presumption that any property standing in the name of the Kartha or a member of the family is a joint family property. The person who wants to set up the case that the property purchased in the name of a coparcener is that of the family, must plead and prove the existence of a joint family nucleus with sufficient surplus income on the date of purchase. (Vide: Kannika Parameswari Devasthanam v. Sadasivam Chettiar, (1980)2 M.L.J. 435 (D.B.), Kanadaswami Chettiar v. Gopal Chettiar, (1975)2 M.LJ. 184 (D.B.) and Mudigowda v. Ramachandra, A.I.R. 1969 S.C 1076: (1969)2 S.C.R. 245:1970 Mah.L.J. 3