JAYARAMA CHANDRA LYER Vs. THULASI AMMAL

JUDGEMENT

(1.) THE plaintiff in O.S. No. 36 of 1968 on the file of the Court of the Subordinate Judge, Chidambaram, is the appellant herein. The suit was instituted by him for partition and separate possession of his half share in the suit properties which consist of five items and for recovery of his share of income from items 4 and 5 of plaint A schedule properties. Since the plaintiff' has been granted a decree in respect of items 2 to 5, the appeal is confined only to item 1, a residential house in Vridhachalam. There were two brothers, Krishnaswami Iyer and Kuppuswami Iyer, Krishnaswami Iyer, in his turn, had two sons, the appellant herein and one Dandapani Iyer, who died on 18 -10 -1963, whose widow is the first respondent, whose sons are respondents 2 and 6, whose daughters are respondents 3, 4, 5 and 7 and whose grandson through a predeceased daughter is the 8th respondent. Respondents 9 and 10 are strangers claiming some interest in the property. As far as item 1 of the A schedule property is concerned, the case of the plaintiff was that Dandapani Iyer and Krishnaswami Iyer constituted a joint family, that under the original of Ex. A.4, dated 15 -5 -1963 certain lands belonging to the joint family were sold for Rs. 3,000, and out of the sale proceeds a house was purchased under Ex. B.1 dated 20 -6 -1963, for a consideration of Rs. 1,600 and that consequently the plaintiff (appellant) representing Krishnaswami Iyer's branch was entitled to a half share in the property. Certain other facts, have to be set out with reference to this claim of the appellant. The original of Ex. A -4 dated 15 -5 -1963 was executed by Dandapani Iyer himself and his two sons, Ganesan and Krishnamurthi as well as by the appellant in favour of one Pachamuthu Odayar. On the date of the document Dandapani Iyer received Rs. 200 by way of advance. The document itself was registered only on 17 -6 -1963. The case of the appellant was that the balance of consideration for the sale deed under Ex. A.4, viz., Rs. 2,800 was received only on 19 -6 -1963 i.e., even after the registration of Ex. A.4 itself. The next day the suit item was purchased under Ex. B.1, dated 20 -6 -1963, after paying Rs. 1,600 to Ratnasabapathi Pillai, the vendor. Ratnasabapathi Pillai is no other than the son of one Rangasami Pillai, an advocate under whom Dandapani Iyer was working as a clerk. It is on the basis that the sale proceeds under Ex. A.4 were utilised for the purchase of the property under Ex. B.1, that the appellant claimed a half share in the suit property.

(2.) THIS claim was resisted by the defendants 1 to 8 putting forward the contention that the property under Ex. B.1, was not purchased out of the sale proceeds under Ex. A.4, but from separate moneys belonging to Dandapani Iyer and his wife as well as Dandapani Iyer's son, who was working. It must be pointed out that the sale deed, Ex. B. 1. itself stands only in the name of Dandapani Iyer, and the sale deed has been attested by the appellant himself. Having regard to the fact that the sale deed stands in the name of Dandapani Iyer, the burden was on the appellant to prove that, notwithstanding the sale deed standing in the name of Dandapani Iyer, the property was purchased for the benefit of both the brothers, viz. Dandapani Iyer and the appellant herein. In support of this case, the only witness who has given evidence is the appellant himself, as P. W. 1. Having gone through the entire evidence of the appellant, I am clearly of the opinion that the appellant has not discharged the burden of proving that the property purchased under Ex. B.1, was for the benefit of both Dandapani Iyer and the appellant, and not for the exclusive benefit of Dandapani Iyer. There are certain circumstances which are clinching in this behalf. The first is that the appellant hosstated in his evidence that the balance of consideration for the sale of the property under Ex. A.4 was received only on 19 -6 -1963, even though the document itself was registered on 17 -6 -1963. It must be pointed out that the vendee under Ex. A.4 is not any person who was closely connected with the vendor, but a stranger, and how the money was received after the registration of the sale deed passes one's comprehension. It is, therefore, clear that the appellant has put forward the case that the balance of consideration under Ex. A.4, was received only on 19 -6 -1963, for the purpose of connecting the same with the purchase of the suit house under Ex. B.1. Apart from the ipse dixit of the appellant, there is no independent evidence also in this case. Neither the vendee under Ex. A.4 nor the vendor under Ex. B.1 has been examined to show that the balance of consideration under Ex. A.4 was received only on 19 -6 -1963 and that the consideration for the purchase of the property under Ex. B.1 was paid to the vendor under Ex. B.1 under the circumstances stated by the appellant herein.

(3.) THE third circumstance is that the appellant has admittedly attested Ex. B.1. It is again admitted by P. W. 1. that Dandapani Iyer asked him to attest the document and that therefore he attested it. Here again, the only explanation offered by the appellant is that his brother asked him to attest the document and that therefore he simply attested it. It is not possible to accept this explanation at all. Dandapani Iyer would not have asked the appellant to attest the document without a purpose for the same. It is not as if there was nobody else available to attest the document, the only person available was the document, the only person available was the appellant himself and therefore Dandapani Iyer asked the appellant to attest the document. It is clear that Dandapani Iyer asked the appellant to attest the document only with a view to bind him with regard to the purchase of the property in his name.