SUPPANNA KAVUNDAR Vs. SUBBULAKSHMI (ALIAS) PAPATHI AND ANR.

JUDGEMENT

(1.) THE second appeal arises from a suit for partition. The first defendant is the appellant, whose daughter -in -law claimed a sixth share in the joint family properties. The first defendant had two wives. By the first of them, he had a son, the second defendant, and a daughter. The third defendant is the second wife, by when he had a son, who died leaving his widow, the plaintiff. Right from March, 1930, the first defendant and his two brothers and father, who were each entitled to a fourth share, sold the family properties, the proceeds of which they shared between themselves. The plaintiff claimed that the suit properties were acquired by the first defendant out of the nucleus, consisting of the sale proceeds allotted to his share. The suit was resisted on the ground that there was no such nucleus, that the properties were the self -acquisitions of the appellant and the plaintiff was not entitled to a share. Both the Courts below have held that except items 41 and 42 of the plaint -schedule, the rest of them were joint family properties in which the plaintiff was entitled to a sixth share. They have found that the nucleus, after discharging the liability, would be about Rs. 25,000 in 1930, which was adequate for the purchase the suit properties over the period from 1934 to 1958. As a matter of fact, the lower appellate Court has found that within 15 months after the family properties had been sold and proceeds divided among the appellants, his two brothers and father of the appellant advanced by way of mortgages loans about Rs. 4,500. The appellant, while denying the nucleus, claimed that some of the properties had been purchased out of moneys gifted to him by his mother -in -law, at the time of his second marriage; but specifically, both the Courts below have found against such a claim; that the nucleus was invested in money -lending by the appellant, and the income out of the nucleus should have according to the Courts below, been the source of purchase money for acquisition of the suit properties. They have also found that the appellant had not shown that he was in possession of any other means. He, no doubt, claimed to have carried on some trade, but the Courts below have not given any importance to this. They have accordingly concurred in decreeing the suit for a sixth share for the plaintiff, except in the two items we have already mentioned.

(2.) THE second appeal by the first defendant comes before us because of the value of the one -sixth share in dispute. The appellant's Counsel, Mr. Gopalaswamy lyengar, contends that the Courts below had not, in arriving at their respective findings kept in view the correct law, namely, that not only should there be nucleus, but there should be adequate income therefrom, in order that with the aid of it the properties in dispute could have been purchased for the joint family, As for the proposition of law, there is no difficulty, Srinivas Krishnarao. Kanungo v. Narayan Devji Kanungo and Ors. : 1954 S.C.J. 408 : [1955] 1 SCR 1 held that the proof of the existence of a joint family did not lead to the presumption that property held by any member of the family was joint, but where it was established that the family possessed some family properties, which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden would then shift to the party alleging self -acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. It Was also pointed out in that case that the question would eventually depend upon the facts in each case. The same thing was reiterated in Mudigowda Gowdappa Sankh v. Ramachandra Ravgoda Sankha : [1969] 3 SCR 245. A Division Bench of this Court in C.V. Vythianatha Iyer v. VC.V. Varadaraja Iyer I.L.R. : AIR 1938 Mad 841 laid down: