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2023 Supreme(Mad) 2455
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K. KUMARESH BABU, J.
Kalaiyarasi & Others – Appellants
Versus
M. Mathesu & Others – Respondents
A.S. No. 653 of 2016
Decided On : 09-08-2023
For the Appellant:B.S. Mitraneshaa for M/s. V. Srimathi, Advocates. For the Respondents:R1 & R2, T.S. Vijaya Ragavan, for R3, M. Suresh Kumar, Advocates.
The central legal point established in the judgment is the determination of joint family property and the burden of proof in establishing the same.
Headnote:
Joint Family Property - Partition - [O.S.No.318 of 2016] - [Summary of Acts and Sections: CPC Order 41 Rule 1, Srinivas Krishnarao Kango vs. Narayan Devjis Kango & Ors. (1954 SC 379), D.S.Lakshmaiah & Anr., vs. L.Balasubramanyam & Anr. (2003 10 SCC 310), G.Mohandoss & Ors., vs. G.Shanmugham & Ors. (2014 (4) LW 695)] - The Court analyzed the claim of joint family property, the evidence of business continuity, and the contributions of the family members to the joint family nucleus. The Court found that the suit schedule properties were not joint family properties and were independent properties of the appellants, leading to the decision to set aside the judgment and decree of the Court below.
Fact of the Case:
The suit involved a claim for partition of ancestral property by the second son of Marappa Goundar, alleging the existence of a joint family and seeking a 1/5th share. The defendants contested the claim, asserting that the properties were independently acquired by them.
Finding of the Court:
The Court found that the suit schedule properties were not joint family properties and were independent properties of the appellants, leading to the decision to set aside the judgment and decree of the Court below.
Issues: The issues included whether the suit schedule properties were joint family properties, the entitlement of the plaintiff to a share, and the grant of a decree of partition and permanent injunction.
Ratio Decidendi: The Court held that the suit schedule properties were not joint family properties and were independently acquired by the appellants, leading to the decision to set aside the judgment and decree of the Court below.
Final Decision: The Appeal Suit was allowed, and the judgment and decree of the Court below in O.S.No.318 of 2016 on the file of the II Additional District Judge, Salem, were set aside. No costs were awarded.
JUDGMENT
(Prayer: Appeal filed under Section 96 read with Order 41 Rule 1 of CPC against the judgment and decree dated 30.08.2016, in O.S.No.318 of 2016 on the file of the II Additional District Judge, Salem.)
1. The instant appeal had been filed as being aggrieved against the judgment and decree of the Court below in granting a decree of partition and also a consequential injunction restraining the defendants 1 to 5 from alienating and encumbering the suit property.
2. The brief facts of the case is that one Late Marappa Goundar had inherited an ancestral property which he had sold in the year 1964 and out of the sale proceeds he had established a Tobacco business and due to his success in the business, he was popularly known as Tobacco Marappa Goundar. He died in the year 1969 and thereafter the sons of the Marappa Goundar had been carrying on the said business. The properties purchased pursuant to the death of Marappa Goundar were either from the sale proceeds that were retained by Marappa Goundar or from the profits of the business that was started by Marappa Goundar. Apart from the above, the earnings of the plaintiff who is one of the son of Marappa Goundar and other sons were also infused into the joint family corpus and purchases had been made. After the death of elder brother Gandeeban, disputes arose and therefore, a Suit had been initiated by the second son of Marappa Goundar seeking for a division of the suit schedule properties and to allot him 1/5th share. The suit was resisted by the defendants 1 to 5 claiming that the allegations in the plaint as regards the existence of the joint family is false and that there were no proceeds left by the Marappa Goundar from the sale of the property in the year 1964 and all the suit properties which were purchased either by late Gandeeban first son of the Marappa Goundar and Aravindan, 3rd son of the Marappa Goundar, were all from the independent earnings of them as they were beneficially employed.
3. The trial court has framed three issues for consideration which are as follows:
a) whether the plaintiff is entitled for 1/5th share in the suit schedule property?
b) whether the 4 and 5 defendants are entitled for the relief of permanent injunction not to create encumbrance over the suit property in any way?
c) what are the other reliefs?
4. The Court below after considering the pleadings and evidences allowed the Suit, as being aggrieved against the same, the legal heirs of the first son and the 3rd son of Marappa Goundar are before this Court.
5. Heard Ms.B.S.Mitraneshaa learned counsel for Ms.V.Srimathi, learned counsel appearing for the appellants, Mr.T.S.Vijaya Ragavan learned counsel appearing for the respondents 1 and 2 and Mr.M.Suresh Kumar learned counsel appearing for the third respondent.
6. Ms.B.S.Mitraneshaa learned counsel appearing on behalf of the appellants would at the outset submit that the issues as framed by the Court below itself is wholly erroneous. The issues have been framed based on the prayers made in the suit and not on the pleadings in the suit. She would submit that the claim for partition is based upon the claim of the plaintiff/first respondent that the properties would have to be treated as a joint family properties. When that be so, the Court below would have to necessarily frame an issue whether the suit schedule properties were originally a joint family property and should have given a finding to that effect. Only thereafter, the Court below ought to have proceeded with the Suit to decide the right of the first respondent/plaintiff. She would further contend that admittedly under Ex.A.15, the father Marappa Goundar had sold the property on 09.07.1964. She would take this Court to the recitals of the said document wherein she would further submit that as per the recitals of the said document, the late Marappa Goundar had sold the property to close a loan that he had taken and also for family expenditure
