KANDASAMI GOUNDER Vs. CHETIYANNAN ALIAS CHETTIYA GOUNDER

JUDGEMENT

(1.) THESE appeals have been preferred against the common Judgment passed in O.S.No.240 & 403 of 1988 on the file of the Subordinate Court, Namakkal. The plaintiff-Kandasamy Gounder in O.S.No.240/1988 is the appellant in A.S.No.137/1992. The first Defendant-Kandasamy Gounder in O.S.No.403/1988 is the appellant in A.S.No.765/1995.

(2.) THE averments in the plaint in O.S.No.240/1988 are as follows: 2(a) THE suit has been filed by the plaintiff for partition of his one half share in the plaint schedule property and for permanent injunction. THE first Defendant is the eldest brother of the plaintiff. THE second Defendant is the wife of the plaintiff. THE first Defendant and his father along with the plaintiff constituted a Hindu Joint Family. THE plaintiff, the first Defendant and their father had executed sale deeds dated 9.9.1964, 12.03.1965, 2.5.1966 in respect of the family properties to purchase other properties. THE plaintiff's father expired in the year 1966. THE first Defendant was lookingafter the joint family affairs as the kartha of the family. THE plaintiff got married some 25 years back. THE first Defendant got married only 10 years back. Till the marriage the plaintiff was residing in the joint family. Out of the sale proceeds of the joint family properties, plaint schedule Item No.1 and 2 were purchased. 2(b) At the time of the purchase of the first item of the plaint schedule property viz. Cheman-kuli-kadu, there was no well or shed in it. Electricity motor service connection was obtained only in the name of the plaintiff. From the joint family income motor pump set was also installed in the said property. Item No.1 of the plaint schedule property was purchased from the father-in-law of the plaintiff. By improving Item No.1 of the plaint schedule property out of all the joint efforts and income item No.3 of the plaint schedule property was also purchased in the name of the first Defendant. THE name of Item No.3 property is Karung-kadu. After the marriage of the first Defendant, he was residing in Item No.2 property and plaintiff is residing in item No.1 property. Both the plaintiff and the first Defendant were enjoying the family properties jointly. 2(c) Some eight years back the first Defendant informed that the joint family properties can be partitioned by meates and bounds and till then plaintiff is living in Item No.1 (Cheman-Kuli-kadu) property and cultivate three acres of land by paying the kist and electricity consumption charges for the motor pump set and that the plaintiff also agreed to reside in the remaining portion of Item No.1 and also in Item No.2 (Karung kadu) properties and to reside in the house, which is situated at Village Natham. In the plaint schedule property Item No.1 to 3 properties plaintiff and the first Defendant are each entitled to one half share. 2(d) On 09.05.1988 plaintiff issued notice. But without giving any reply the first Defendant had filed O.S.No.262/1988 on the file of the District Munsif Court, Rasipuram and also obtained ad-interim injunction. THE first Defendant is entitled to one half share in the plaint schedule property and the second Defendant is entitled to a right in Item No.3 schedule property including the well and pump set. Hence the plaintiff has filed the suit for partition.

(3.) THE point:- 7(a) Admittedly the plaintiff in O.S.No.240/1988 viz. Kandasamy Gounder, the first Defendant(Chettiya Gounder) are brothers. THEy had family properties and along with their father, the plaintiff and the first Defendant have executed Ex.A.1 to 3, sale deeds, in the year 1964 and 1966 respectively. It is the case of the plaintiff in O.S.No.240/1988 that only out of the joint family income, the first Defendant (Chettiya Gounder) had purchased Ex.B.1 and 2 properties, as Kartha, being the eldest son of the joint Hindu family. THE only defence of the first Defendant before the trial Court is that Ex.B.1 and B.2, sale deeds in respect of the plaint item No.1 to 3 properties were taken by the first Defendant out of his personal income derived from the business he had conducted. 7(b) THE learned trial Judge has forgotten for a moment that the first Defendant, the plaintiff along with their father constituted a Hindu joint family and the plaint schedule item No.1 to 3 properties were purchased in the name of the first Defendant under Ex.B.1 and B.2, sale deeds, as kartha of the family. THE first Defendant would contend that Ex.B.1 and B.2 were purchased out of the income derived from his business. Now the burden his heavily on the first Defendant to prove that only from his separate income Ex.B.1 and B.2, sale deeds, were taken by him. 7(c) At paragraph 19 of the Judgment, the learned trial judge relying on the evidence of P.W.2 has come to a conclusion that plaint item No.1 and 2 were purchased out of the income of the first defendant. P.W.2 has deposed to the fact that the first Defendant had indulged in ground nut business, sugar trade and cereals business. But to show that the first Defendant had indulged in ground nut business, sugar trade and cereal business, the first Defendant has not produced any documentary evidence in support of his claim. Unless the first Defendant proves that the plaint schedule item No.1 and 2 properties are purchased from out of his separate income, it cannot be said that Ex.B.1 and B.2, sale deeds, were taken from out of his own income. 7(d) In Hindu Law by N.R.Raghavachari, 9th edition, at page 229, it has been enumerated as follows: "Presumptions in respect of joint family and self acquired property: THEre is a presumption of jointness in a Hindu family and that jointness subsists till a partition is proved (Marjadi Devi Vs. Jagannath Singh, A.I.R. 1983 Pat. 129), See (Sambandam Vs. Chokalingam, (1994) 2 MLJ 582). Where a certain property is claimed by a corparcener as his own self-acquired property and the other coparceners of his family claim it as the joint family property, the question arises as to the burden of proof in respect of these rival allegations (See Murugesa Naicker Vs. Sadaiyappa naicker, (1996) 2 MLJ 229). THE joint family is the normal condition of Hindu society and every such family is ordinarily joint not only in estate, but in food and worship. Hence a Hindu family must be presumed to remain joint and the burden of proving sepration is upon the person alleging it (Raghunada Vs. Brozo, ILR 1 Mad 69 : LR 3 IA 154 Beer Narain Singh Vs. Teen Couree Nundee, 1 W.R 316 Neelkisto Vs. Beerchunder, 12 MIA 523 Mt.Cheetha V. Baboo Mihen Lal, 11 MIA 369 Naragunty Vs. Vengama, 9 MIA 66 Nageshar Baksh Singh Vs. Ganesha, ILR 42 All. 368 : LR 47 IA 57 : 13 LW 622 : 18 ALJ 532 : 22 Bom. Legal representative 596 : 38 MLJ 521: AIR 1920 PC 46. See also Ponnuswamy Vs. Meenakshi Ammal, (1988) 2 MLJ 507. But this presumption is weakened as one goes further from the founder of the family M.THANIKACHALAM. Inderr Kuer Vs. Mt.Pithipal Kuer, 58 LW 421 State of Travancore Vs. A.K.Panikar, AIR 1971 SC 996 Indiranarayan Vs. Roop Narain, (1971) 1 SC Wr 764 {Presumption is strong in the case of father and son) Muchhu Rana Vs. Netrananda, (1974) 40 Cut. L.T.1319: Sant Ram Vs. Paramanand, (1977) 79 PLR 605 Kaushal Kishore Vs. Dharam Kishore, (1977) 79 PLR 749]. THE presumption of union is the greatest in the case of fathr and sons [Malakchand Vs. Hirlal, (1936) ILR 11 Luck 449: 157 IC 945]. Brothers are for the most part presumed to be undivided, second cousins generally separated [Moro Viswanath Vs. Ganesh, (1873) 10 Bom. H.C.444 463. See also Bharat Singh Vs. Bhagirathi, (1966) 2 SCJ 53. "THE presumption of union is stronger in the case of brothers than in the case of cousins and the further you go from the founder of the famly, the presumption becomes weaker and weaker" [Yellappa Vs. Tippanna, (1929) 56 IA 13 : ILR 53 Bom. 213 (PC) : 29 LW 231 : 33 CWN 238 : 56 MLJ 287 : 1929 ALJ 4 : 31 Bom LR 249 : AIR 1929 PC 8]. THE presumption of jointness however continues until the contrary is shown [Chandreshwar Singh Vs. Ramachandra Singh, AIR 1973 Pat 215]. It is not open to one member of the joint family to separate himself from only one other memebr and remain joint with the others. He cannot be joint with some and separate from others [Inder Narayana Vs. Roop Narayan, (1971) 1 SCWR 764] Revenue entries as to the status of the family are evidence of its being joint or divided [Smt.Murtu Vs. Smt. Giari, 1973 SLJ 209]. Where it is shown that the property in question has been possessed by one of the lines of a family for several generations, there is a presumption that line has become separated from the other lines which subsequently lay claim to the proeprty [Yellappa Vs Tippanna, supra Cf., Shiam Sunder Gautam Vs. Tara Chand, 1978 HP 24]. But there is no presumption that because a family is joint, it possesses my joint property." 7(e) THEre is absolutely no evidence on record to show that there was a partition between the plaintiff and the first Defendant in respect of the joint family property and that they are living separately having separate food and separate residence. Further it is pertinent to note from Ex.B.11, a document produced by the first Defendant, Chettiya Gounder, that even in form No.34/A produced before the income tax authorities under column 2 the status of the first Defendant has been shown as Hindu undivided family (HUF). So it is clear that even on 6.1.1983 i.e, on the date of Ex.B.11, the plaintiff and the first Defendant constituted a Hindu joint family. Since the first Defendant has failed to establish that Ex.B.1 and B.2, sale deeds, were taken from out of his self earned income from the business alleged to have been run by him, it cannot be said that Ex.B.1 and B.2 properties are the self acquired properties of the first Defendant-Chettiya Gounder. Under such circumstances, the unrebutted presumption will be that Ex.B.1 and B.2 properties i.e. Item No.1 to 3 of the plaint schedule properties were purchased by the first Defendant-Chettiya Gounder from out of the joint family income in the name of the first Defendant being the kartha of the Hindu Joint Family. Under such circumstances, this Court has necessarily to interfere with the findings of the learned Sub-Judge, Namakkal, in O.S.No.240/1988 and 403/1988. THE point is answered accordingly.