MUNIAPPA NACIKER Vs. BALAKRISHNA NAICKER

JUDGEMENT

(1.) DEFENDANT in O.S.No.476 of 1974, on the file of District Munsif's Court, Kallakkurichi, is the appellant.

(2.) PLAINTIFF and defendant are brothers, and they are the sons of Thulasi Naicker. It is the case of the plaintiff that he acquired the plaint schedule properties under Exx.A.1 to A.25, between the period 1943 to 1967 and the defendant is interfering with his possession. It is also the plaintiff's case that all the properties are his self -acquisitions, and his father died only about ten years prior to the institution of the suit and he was managing the family. It is his further case that he is doing business even from his young age, in paddy, groundnut, gingelly and jaggery, and out of the income earned from the business, he was in a position to acquire all these items. None of these items are family properties, nor were they purchased from out of the family income, nor was he the manager at that time. The family had only two items of properties, i.e., Ac. 1 -43 cents of punja land and Ac.0.74 cents of nanja lands. The income from the joint family properties was hardly sufficient for the maintenance of the family. There was no surplus income. PLAINTIFF did not purchase the suit properties out of the ancestral nucleus. After the death of the father, defendant is interfering with the plaintiff's possession of the suit properties. Hence the suit was filed. In fact, a notice (copy marked as Ex.A -44) was issued by the plaintiff himself asking the defendant not to interfere with his possession, and Ex.A.45 reply was sent by the defendant, contending that the plaint properties are the family properties, and also claiming one half share in those items.

(3.) AGGRIEVED by the judgment, plaintiff preferred A.S. No.275 of 1976, on the file of Subordinate Judge's Court, Cuddalore. The lower appellate court reconsidered the entire evidence and finally came to the conclusion that the decision of the trial court is wrong and, therefore, requires interference. The lower appellate court held that the burden is entirely on the defendant to prove that there was sufficient nucleus to purchase the other properties, and evidence in that regard is lacking. It also took into consideration that plaintiff was only a junior member in that family and his father was alive when most of the properties were acquired. Therefore, there cannot be any question of presumption of acquisition on behalf of the family. It also found that the father was never prevented from managing the affairs of the family and he himself was dealing the properties which stood in his name, or which belonged to the family. It also came to the conclusion that the properties covered by Ex.A -1, i.e., more than 4 acres of land, was purchased by plaintiff with funds provided by the mother and, therefore, under no circumstance the same could be treated as family property. It also came to the conclusion that there was no appreciable income from the family properties, and the income from the family properties would not have been sufficient even to meet the day -to -day maintenance of the family. It further held that income could be derived from the family properties only if there was rain. Apart from plaintiff and defendant, deceased Thulasi Naicker had to maintain his wife, and conduct marriage of his three daughters. So, there would not have been any surplus income from out of the family properties which could have been made use of for acquiring the properties under Exs.A -1 to A - 25. The appeal was, therefore, allowed, and consequently a decree as prayed for by respondent/plaintiff was granted.