D KRISHNAMURTHY Vs. A SUBRAMANIA MUDALIAR

JUDGEMENT

(1.) THE fifth defendant in O.S.No.238 of 1983, who is the second respondent in the execution proceedings filed in O.S.No.726 of 1985, has filed the second appeal and the Civil Miscellaneous Appeal respectively. One Munusamy/the first respondent herein, the brother of the appellant filed the above suit for declaration and recovery of possession. According to him, the suit property was purchased by him for valuable consideration under a registered sale deed Ex-A10, dated 3.3.1978. THE property purchased under Ex-A10, was for an extent of 1.25 cents. Out of this, he sold the eastern 62 1/2 cents to Vanajakshi Ammal, under Ex-A3 dated 25.9.1981. THE purchaser is the wife of the sixth defendant who was later transposed as the second plaintiff and is now the second respondent herein. THE remaining western 62 1/2 cents was with the first respondent/plaintiff. His father, now dead, who was the first defendant had attested Ex-A3. THErefore, his brothers including the appellant cannot question his right and title of the suit property. THE first defendant executed a simple mortgage deed in favour of the second respondent and one Thayarammal in 1981. THE first respondent leased out the suit property to the fourth defendant under an oral lease agreement in August, 1982. Since the first respondent received a legal notice from the appellant's Advocate claiming joint ownership, he filed the suit for the aforesaid reliefs. Subsequently, the plaint was amended transporting the second respondent as the second plaintiff and including certain averments that the said Thayarammal had filed the suit O.S.No.726 of 1987 and had obtained a preliminary decree and that, final decree on the foot of the mortgage deed and that, she had brought the suit property to sale and that, the second respondent had purchased the suit property in the Court auction sale held on 15.4.1989, which was duly confirmed and that the sale certificate was also issued. When the second respondent went to take delivery of the suit property the appellant and the fourth defendant, who is the fourth respondent raised obstruction. THE suit was decreed and delivery was ordered. Against that an appeal and C.M.A. were filed, and they failed. THErefore, the present two appeals have been filed.

(2.) MR.Viswanathan, learned counsel for the appellant would submit that the property was never intended to be the exclusive property of the first respondent. Valuable property had deliberately been sold by the first respondent to the second respondent herein to defeat the rights of the co-owners. Both the Courts had totally failed to appreciate the evidence of the respondents. It is the case of the first respondent in the plaintiff that was originally filed, that the appellant was in possession as a cultivating tenant. The court below had rejected that there was a tenancy agreement. While doing so, it failed to render a correct finding regarding the nature of possession of the appellant. It was not the first respondent's case that the appellant was an encroacher. If the appellant's possession is neither illegal nor traceable to a tenancy agreement, then it follows his possession is as a co-owner. The explanation given by the appellant for the attestation of the sale deeds were wrongly rejected by the Court below. The parties are poor agriculturists, and may not have formal proof of their possession. He would also submit that Ex-B3 notice would show that the case of the respondents is that the appellant is a cultivating tenant. Therefore, according to the learned counsel, if he is a cultivating tenant, then he can only be evicted in accordance with the provisions of Act 25 of 1955. But if they are not cultivating tenants then they are co-owners and suit cannot be decreed. The learned counsel would therefore, pray that the judgment and decree of the Court below be set aside.

(3.) THE question whether the property is joint family property has been discussed in detail by both the Courts below. THE Courts below have appreciated the evidence and found that the appellants have not given any evidence with regard to either ancestral nucleus or existence of joint family funds for purchase of the suit property. THE evidence of P.W.3 is that there was no property belonging to their grandfather and that their father had not purchased any land, that, there was no house in the name of their father and there was no income from door No.12 and so on. THErefore, on a total reading of the evidence of D.w.1 and D.W.3, the correct conclusion is that there were no joint funds for purchase of the suit property. Though the witnesses would say that their father was cultivating land as a tenant they would admit that there was no record for the same. Further the evidence of D.W.1 is that, after Ex-A10, the sale deed, it was the first respondent who received the title deeds. If it was intended to be a joint family property either the father, who was the first defendant or the appellant herein, the elder brother would have received the title deeds. It is also relevant to note that D.W.3 is the first son of the first respondent. THE first respondent is only the junior son. THEre are materials to show that he was in the Army and therefore, he was a mechanic. In fact, in the plaint it is stated that because he was working as a mechanic he could not cultivate the property directly. Another circumstance, which supports the case that the property is the self-acquired property of the first respondent is the fact that the first defendant had attested Ex-A3, the sale deed in favour of Vanajakshi Ammal, the wife of the respondent. Ex-A5 shows that the chita extract is in the name of the first respondent. Ex-A6 is the Adangal extract for fasli 1397. Ex-A7, is the mortgage deed executed by the first respondent to the 2nd respondent herein. THErefore, it is clear from this that the first respondent had been treating the suit property as his own by alienating a portion thereof and by creating encumbrance of the property. No objection has been raised by the appellant to Ex-A3. If the property purchased under Ex-A10, was truly a joint family property, the co-owners would have taken steps to set aside this transaction. It is well-settled that there is no presumption that a joint family possesses joint property and if a party claims a particular property to be joint family property the burden of proving that it is so rests on him.