Intention of father to waive his separate right over his self acquired.

This second appeal is by the decree-holder in O.S. No.435 of 1979, on the file of the District Munsif s Court, Tiruvannamalai.

2. A decree was passed against the second respondent herein on 8. 1979. Execution petition was filed on 12. 1980. The property, which is the subject-matter of the suit, was attached on 212. 1980. At that time, the present Execution Application No.621 of 1981 was filed by the first respondent herein that the property is not liable to be attached, he having purchased the same as per sale deed dated 13. 1991. According to him, the second respondent, who is none other than his own son, has no right over the property purchased by him on 13. 1961, the same being his self-acquisition. He also contended that he purchased the property for a sum of Rs.4,000 and that he is in enjoyment of the same as absolute owner. Ex.A-1 is the sale deed. Ex.A-2 is the house-tax demand notice. Exs.A-3 and A-4 are house-tax receipts. Ex.A-5 is the electricity bill and Ex.A-6 is a bank receipt.

3. The decree-holder, i.e., the appellant herein contended that the property is not the self-acquisition of the first respondent herein, and that the defendant in the suit, who is the second respondent herein, is also entitled to a right over the property. He contended that after the purchase, the claimant himself has mortgaged the property in favour of a stranger for a sum of Rs.5,000 stating that the property belonged to them jointly. That mortgage was redeemed, and subsequently another mortgage was also executed, making the second respondent herein also as a party to the same. Therefore, according to the appellant, the property in question is a joint family property over which the second respondent herein is also entitled to a share, and the same is liable to be attached and sold.

4. In execution application the claimant examined himself as P.W.I, and on behalf of the decree-holder a witness was examined as R.W.1. On behalf of the claimant, Exs. A-1 to A-6 were marked, and on behalf of the decree-holder, Exs.B-1 and B-2 were marked.

5. The executing court dismissed the claim application relying mainly on the statements in Exs.B-1 and B-2, which are admittedly mortgage deeds executed by the claimant along with his son (judgment-debtor), wherein it is stated that the property belong to them jointly. In view of the said statement, the executing court held that the contention put forward by the claimant that the property belonged to him absolutely cannot be accepted, and accordingly it dismissed the claim petition.

6. Against the said order, the claimant filed CM.A. No.3 of 1982, on the file of the Subordinate Judge’s Court, Tiruvannamalai. The lower appellate court held that as per sale deed dated 13. 1961 (Ex.A-1), the claimant is entitled to absolute title. It also held that so long as the decree-holder has no case that the property was acquired with joint family funds or that the property had been thrown into the common hotchpot of the joint family, it cannot be treated as a joint family property. It also held that even if the property is held to be a joint family property, the claim should not have been dismissed. The lower appellate court set aside all the findings of the executing court and allowed the appeal. Consequently,the claim petition was allowed. It is against the conflicting decisions, this second appeal has been filed.

7. The following substantial questions of law have been raised for consideration in this second appeal:

“(1) Whether the lower appellate court is right in accepting the oral evidence, which is inconsistent with the contents of the documentary evidence found in Exs.B-1 and B-2? and

(2) Whether the contents in Ex B-1 and Ex.B-2

denote joint ownership or not?”

8. The main ground urged on behalf of the appellant/ decree-holder is that Exs.B-1 and B-2 are against the claim put forward by the first respondent wherein there is an admission that the property belongs to the joint family. So long as t