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2010 Supreme(Mad) 1900
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLAH & THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM
S. Elangovan & Others
Versus
S. Sembian & Others
A.S.No.473/1998 & Cross Objection.No.37 of 2000
Decided On : 23-04-2010
For the Appellant :M. Venkatachalapathy Senior Advocate Assisted by S. Chimbaranathan & M. Sriram, Advocate.
For the Respondents:R1 - K.V. Ananthakrishnan, R2 - G. Rajan, Advocates.
Headnote:
Suit for partition and allotment of 5/12th share in the suit property and mesne profits. Plaintiff and defendants 1 to 3 are the children of late Thiru. R. Sowrirajan. Plaintiff came to Madras during 1960 and the other family members came to Madras during 1963. Plaintiff was an Assistant, under a building contractor from May 1963 to October 1966 and later, he joined the Tamil Nadu Civil Supplies Department as Clerk on 17.11.1966 and worked upto 19.02.1970, and thereafter, he joined as clerk in Tamil Nadu Co-operative State Land Development Bank, Madras on 20.02.1970 and was working as Superintendent till the filing of the suit. Plaintiffs wife Tmt. Leelavathy was working as a teacher, since 1972, when the plaintiffs father Thiru. R. Sowrirajan and the other members of the family came to Madras. It is stated that Thiru. R. Sowrirajan was a LIC agent and was earning only a meager income, considerable portion of the earnings of the plaintiffs and his wife were utilized for the joint family expenditure and they shared the family financial burden. During 1963, the first defendant secured an employment and the family expenditure was shared by the plaintiff, his wife and first defendant with Thiru. R. Sowrirajan and were all living as joint family. The plaintiff, defendants 1 & 2, Thiru. R. Sowrirajan and his wife were living as a joint family from 1963 to 1970 at Shenoy Nagar, Madras from 1970 to 1973 at Kilpauk, from 1973 to 1976 at Triplicane, from 1976 to 1977 at Mylapore, and from July 1977 to May 1981 at Teynampet. It is further submitted that on 06.01.1966, the Tamil Nadu Housing Board allotted the suit property to Mr. R. Sowrirajan and he paid the cost of the plot by installments from and out of the earnings and savings of the joint family income.
Fact of the Case:
Plaintiff and defendants 1 to 3 are the children of late Thiru. R. Sowrirajan. Plaintiff came to Madras during 1960 and the other family members came to Madras during 1963. Plaintiff was an Assistant, under a building contractor from May 1963 to October 1966 and later, he joined the Tamil Nadu Civil Supplies Department as Clerk on 17.11.1966 and worked upto 19.02.1970, and thereafter, he joined as clerk in Tamil Nadu Co-operative State Land Development Bank, Madras on 20.02.1970 and was working as Superintendent till the filing of the suit. Plaintiffs wife Tmt. Leelavathy was working as a teacher, since 1972, when the plaintiffs father Thiru. R. Sowrirajan and the other members of the family came to Madras. It is stated that Thiru. R. Sowrirajan was a LIC agent and was earning only a meager income, considerable portion of the earnings of the plaintiffs and his wife were utilized for the joint family expenditure and they shared the family financial burden. During 1963, the first defendant secured an employment and the family expenditure was shared by the plaintiff, his wife and first defendant with Thiru. R. Sowrirajan and were all living as joint family. The plaintiff, defendants 1 & 2, Thiru. R. Sowrirajan and his wife were living as a joint family from 1963 to 1970 at Shenoy Nagar, Madras from 1970 to 1973 at Kilpauk, from 1973 to 1976 at Triplicane, from 1976 to 1977 at Mylapore, and from July 1977 to May 1981 at Teynampet. It is further submitted that on 06.01.1966, the Tamil Nadu Housing Board allotted the suit property to Mr. R. Sowrirajan and he paid the cost of the plot by installments from and out of the earnings and savings of the joint family income.
Finding of the Court:
The plaintiff has not been able to satisfactorily prove the theory that his income along with the income of the 1st Defendant and the earnings of their father were pooled together, and income derived out of the joint exertion, after meeting the family expenses, the residual amount was utilized for the purchase of the suit plot. The theory as propounded by the Plaintiff remains only as his contention not supported by valid documentary evidence or corroborated by the acceptable oral testimony. It is noteworthy to reiterate that the onus is on the plaintiff to show that the property standing in the name of the 1st Defendant is property purchased out of a joint family nucleus or on account of joint exertion and unless the same is proved with acceptable oral and documentary evidence, the onus does not shift on the 1st Defendant who claims the suit property to be his individual property.
Issues: 1) Whether the plaintiff is entitled to preliminary decree for partition of his 5/12th share in the plaint schedule property? 2) Whether the plaintiff is entitled to Rs.30,000/- towards past mesne profits? 3) Whether the second defendant is entitled to 5/16th share in the suit property. 4) What are the shares of the parties? V) To what relief if any the plaintiff is entitled?
Ratio Decidendi: A party alleging that property held by an individual member of a joint Hindu family is family property must show that the family was possessed of some property with the aid of which the property in question could have been acquired. It is only after that is shown that the onus shifts to the party alleging self acquisition to affirmatively make out that the property was acquired without any aid from the family estate. Mere 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 any one asserting that any item of the property is joint to establish the fact.
Final Decision: A.S. No. 473 of 1998 is allowed as prayed for. Cross objection 37 of 2000 is dismissed and the consequently judgment and decree in O.S. No. 2187 of 1996, dated 21.11.1997 on the file of the V Additional City Civil Judge, Chennai is set aside and the suit stands dismissed. However, considering the facts and circumstances of the case, there will be no order as to costs. All C.M.Ps closed.
T.S. SIVAGNANAM, J.
This appeal has been preferred against the Judgment and decree in C.S.No.707 of 1994 dated 21.11.1997. The first defendant is the appellant. The suit is for partition and the suit schedule property is the land and building in plot No.31, R.S.No.4 part, Perikudai village, bearing No.31, B block, 12th street, Anna Nagar East, Madras – 600 102, measuring an extent of one ground and 0875 sq. ft. For the sake of convenience the parties shall be referred to as described in the suit.
2. Suit Prayer:
For a Judgment and decree against the defendants granting a preliminary decree of partition of the suit property and allot 5/12 share to the plaintiff, to direct the first defendant to pay a sum of Rs.30,000/- as past mesne profits and to pay the future mesne profit as determined by Court and the cost of the suit.
3. Relationship of parties (Not disputed):-
Plaintiff and defendants 1 & 2 are the sons of late Thiru. R.Sowrirajan and the third defendant is his daughter. During the pendency of the above appeal, the plaintiff died and his wife Tmt.Leelavathy, son Mr.S.Azhagarasan and minor S.Karthik were brought on record as legal representatives. As S.Azhagarasan died pending appeal, a memo was filed and Tmt.Leelavathy and brother S.Karthick have been recorded as legal heirs for the deceased third respondent.
4. Case of the Plaintiff:-
That the plaintiff and the defendants are the children of the late Thiru.R.Sowrirajan and the plaintiff came to Madras during 1960 and the other family members came to Madras during 1963. The plaintiff was an Assistant, under a building contractor from May 1963 to October 1966 and later, he joined the Tamil Nadu Civil Supplies Department as Clerk on 17.11.1966 and worked upto 19.02.1970, and thereafter, he joined as clerk in Tamil Nadu Co-operative State Land Development Bank, Madras on 20.02.1970 and was working as Superintendent till the filing of the suit. The plaintiffs wife Tmt.P.Leelavathy was working as a teacher, since 1972, when the plaintiffs father Thiru. R.Sowrirajan and the other members of the family came to Madras. It is stated that Thiru.R.Sowrirajan was a LIC agent and was earning only a meager income, considerable portion of the earnings of the plaintiffs and his wife were utilized for the joint family expenditure and they shared the family financial burden. During 1963, the first defendant secured an employment and the family expenditure was shared by the plaintiff, his wife and first defendant with Thiru.R.Sowrirajan and were all living as joint family. The plaintiff, defendants 1 & 2, Thiru.R.Sowrirajan and his wife were living as a joint family from 1963 to 1970 at Shenoy Nagar, Madras from 1970 to 1973 at Kilpauk, from 1973 to 1976 at Triplicane, from 1976 to 1977 at Mylapore, and from July 1977 to May 1981 at Teynampet. It is further submitted that on 06.01.1966, the Tamil Nadu Housing Board allotted the suit property to Mr.R.Sowrirajan and he paid the cost of the plot by installments from and out of the earnings and savings of the joint family income.
Mr.R.Sowrirajan constructed a building upto roof level, which was also from the joint family income and could not complete, further construction as he had become old and was not getting regular income and was unable to secure housing loan and therefore Thiru.R.Sowrirajan decided to obtain loan in the name of the first defendant, the eldest son. It is the further case of the plaintiff that it was decided to avail a housing loan in the name of the first defendant, this decision was taken with the specific understanding that the house would be constructed after obtaining loan in the name of first defendant, the constructed house to be let out and the rent should be used to discharge the loan and the remaining portion of the rent to be utilized for joint family expenses. Therefore, it is contended that since major portion of the cost of construction was paid from and out of the joint family income, the proper
