S KANDASAMY NAICKER Vs. AKKAMMAL

JUDGEMENT

(1.) 1.1st defendant in O.S. No.227 of 1989 on the file of Sub Court, Srivilliputhur is the appellant.

(2.) THE suit is one for partition.

(3.) THE lower appellate court found in para 18 of the judgment that the entire A schedule properties belonged to deceased Subba Naicker, as his self-acquisition. It is seriously opposed by learned counsel for the appellant. According to him, at the time when Ex.A-1 was obtained, their father was the manager. Long before Ex.A-1, their father had come into possession of vast items of properties belonged to the family, evidenced by Ex.B-21 partition. It is his case that when the Manager acquires properties, the legal presumption is that the properties purchased by him, go to the benefit of the family. It cannot be treated as his self-acquisition. According to me, the said contention is to be accepted. In the decision reported in Achuthan Nair v. Chinnammu Amma, A.I.R. 1966 S.C. 411, the Honourable Supreme Court has considered this point and it has been held therein thus:'Under Hindu Law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to be undivided member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. But the principle is not applied to acquisition of properties in the name of a junior member of a tarwad (anandravan) under the Marumakkathayam Law. THEre is no presumption either way and the question has to be decided on the facts of each case. In the case of the property acquired in the name of the karnavan, however, there is a strong presumption that it is a tarwad property and the presumption holds good unless and until it is rebutted by acceptable evidence. '[Italics supplied] In para 10 of that judgment, their Lordships further held that a person in management is in the position of trustee and is in a fiduciary position. In that capacity also, when he acquires properties, it goes to the benefit of the family. In view of this legal presumption, the finding of the lower appellate court that Ex.A-1 properties are the self-acquisition, cannot be accepted. THE properties acquired by the father under a partition and purchased by him are all family properties. If that be so, the 1st defendant and the 2nd plaintiff will be entitled to a right by birth and their father Subba Naicker was also entitled to an equal share. THE three male members will be entitled to one-third each in the plaint A schedule properties. One-third share belonging to Subba Naicker, on his death, got devolved upon his widow and children under Secs.6 and 8 of the Hindu Succession Act. THEy will be having shares equally. THErefore, the share of the 1st plaintiff as found by the lower appellate court will have to be reduced as l/12th and not l/6fh, as found by the lower appellate court. THE share of the 2nd plaintiff will be 1/3+1/12 = 5/12.