S. Palanivelu, J.@mdashThe brief averments found in the suit plaint are as follows:
The plaint schedule property belongs to the plaintiff''s mother Thanji ammal, who got the property by way of family arrangement from her parents and she was in exclusive possession and enjoyment of the schedule property. 1st defendant is the only son of the Thanji ammal. The plaintiff and defendants 2 to 6 are daughters of the said Thanji ammal. Thanji animal''s husband died about 25 years back. Hence, she has sought the help of the 1st defendant to lookafter the schedule property and also the said Thanji ammal. About 10 years back the said Thanji ammal put up a lathe workshop in the schedule property. The 1st defendant managed the said workshop. Later, she has closed the workshop and sold out the machineries and installed flour mill in the schedule property, which was also looked after by the 1st defendant on her behalf and hence the entire suit properties are the separate self acquired properties of Thanji ammal. Thanji ammal died intestate on 30.12.1998, leaving the plaintiff and the defendants as her legal heirs. Hence, the plaintiff and defendants are entitled to 1/7th share each in the schedule properties. Apart form this, the said Thnaji ammal was having a leasehold right in one of the municipal shop building. The said shop was let out to one Munusamy, who is running a rental rice shop paying a monthly rent of Rs. 600/- to Thanji ammal. The said Thanji Ammal used to pay the said amount of Rs. 600/- to the plaintiff only. She also made family arrangement to the effect that the plaintiff alone should receive the rent from the said Munusamy. Now the 1st defendant has instructed the said Munusamy not to pay the rent to the plaintiff. Hence, the plaintiff is taking separate action against the said Munusamy for the recovery of the rental arrears and a lawyer''s notice was sent to 1st defendant on 25.1.1999 calling upon him to divide the suit properties into 7 equal share and allot on such share to the plaintiff. The 1st defendant has sent a reply notice containing false allegation. Hence the plaintiff is constrained to file suit for partition and separate possession of her 1/7th share in the suit properties. The plaintiff is in joint and constructive possession of the suit properties.
In the written statement submitted by the 1st defendant, the following are averred:
The suit property does not belong to Thanji ammal and it was not enjoyed by her as the self-acquired property. It is not correct to state that the 1st defendant was managing the property belonging to Thanji ammal. The 1st item of the suit property is a poramboke site, which belongs to the 1st defendant and the plaintiff has not entitled for any share. It is not correct to state that the said Thanji ammal had let out the Municipal shop in her name. The suit 1st item belongs to this 1st defendant exclusively. There is no 3rd item of schedule property i.e., jewels at the time of death of Thanji ammal. Regarding 4th item which are brass vessels, it is in possession of 3rd defendant and hence the plaintiff cannot claim partition of the same. The 1st defendant is not in possession of suit 3rd and 4th items and hence on the ground that the suit 1st and 2nd items are exclusively owned and enjoyed by 1st defendant, the suit has to be dismissed with costs.
2. On the plaintiff''s side plaintiff 4 witnesses were examined and 7 documents were marked and on the side of the defendant, defendant alone examined as D.W. 1 and 6 documents were exhibited. After perused the oral testimony and documents of both sides, the trial Court has decreed the suit with regard to 1st and 2nd items of the suit schedule properties in favour of the plaintiff and dismissed in respect of 3rd and 4th items of the suit schedule property. In the appeal preferred by the 1st defendant the learned Sub-Judge, Ami, has dismissed the appeal and confirmed the Judgment and decree of the trial Court. Aggrieved against that order the 1st defendant preferred this Second Appeal. In this Second Appeal the following substantial questions of law have arisen for consideration:
1. When the plaintiff was unable to prove that suit item No. 1 was capable of generating funds sufficient to purchase the suit item 2, whether the Courts below are right in directing partition in respect of suit item 2 as well?
2. Whether the poromboke land could be a subject matter of partition?
3. Both parties are daughters and son of one Thanji Ammal. She was in possession of suit 1st item property poromboke land 2nd item, the machineries of flour mill in item No. 1. She died on 8.2.1999. She appointed 1st defendant to manage the flour mill on her behalf. It is pleaded in the plaint that she got the properties by way of family arrangement, that she has paid the payment for ''B'' Memo, which is evident from Ex. A.5 receipt particulars for the Fasli 1400 to 1409. Ex. A.6 is extract of the property tax demand register for the years 1990-91 to 1995-96 and 1996-97 to 1999-2000. The trial Court has thoroughly appreciated the oral evidence on record of the parties and concluded the suit in favour of the plaintiff that the property belongs to Thanji ammal by virtue of family arrangement. But the property got by Thanji Ammal by family arrangement are poromboke lands. The learned counsel for the 1st defendant says that the property cannot be treated as family asset.
4. In
14. In regard to item No. 10 the only reason for dismissing the suit was that the family is not having title to the property. Under Ex. A.2 it is found that the family is in possession. It could be a Government land. The possessory right continues in the family. Any arrangement between the members of the family may not bind the Government, But as between them, it has to be treated as a family asset and available for partition. A Preliminary decree also will have to be passed with regard to item No. 10.
In view of the above said legal position, even though Thanji Ammal was in possession of poromboke property, the plaintiff is entitled for partition.
5. It is the contention of the learned counsel for the 1st defendant that the suit property was a poromboke land occupied by his elder brother Kanagasabai by paying "B" Memo charges, after his death the 1st defendant and his mother was in enjoyment and paid "B" Memo charges for the land. But he has not produced any document to show that he had paid "B" Memo Charges to the Court.
6. Insofar as 2nd item of the suit property are the machineries available in 1st item. It is pleaded by the 1st defendant that he purchased the same out of his own funds, but it is not proved. The learned trial Court Judge has observed that Thanji ammal was getting income from her small scale provision shop. Hence, in the absence of any evidence on the part of the first defendant, his contention that he purchased the second item is unproved.
7. In view of the above it is established that opinion of the Court below that the plaintiff is entitled for 1/7th share in the suit 1st and 2nd item properties. The learned counsel for the Appellant placed reliance upon a decision of the Honourable Supreme Court in
17. In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from Item 2 property and no other nucleus was claimed, the burden remained on the respondents to establish that Item 1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents'' claim of Item 1 to be joint family property would fail as rightly held by the first appellate court.
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
8. In
20. Since the High Court has misplaced the burden of proof, it clearly vitiated its own judgments as also of the courts below since it is well-established dictum of the Evidence Act that misplacing burden of proof would vitiate the judgment. It is also equally and undoubtedly true that the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it has happened in the instant matter. This position stands reinforced by several authorities including the one delivered in Koppula Koteshwara Rao v. Koppula Hemantha Rao, 2002 AIHC 4950 (AP).
21. It has been further held by the Supreme Court in State of J. & K. v. Hindustan Forest Co., (2006) 12 SCC 198, wherein it was held that the onus is on the plaintiff to positively establish its case on the basis of the material available and it cannot rely on the weakness or absence of defence to discharge the onus.
Even though the 1st defendant has come forward with certain defence about the 2nd item is concerned, he cannot take recourse to the above said judgments.
9. The suit has been dismissed insofar as 3rd and 4th items of suit properties are concerned, there is no appeal by the plaintiff. In view of the above, the judgment and decrees of the Courts below deserve to be confirmed and they are accordingly confirmed. The substantial questions of law are answered as indicated above. In fine the second appeal is dismissed with costs.
