In view of the above submissions made on either side, the only question that has to be decided in this appeal is whether the suit C to E schedule properties could be considered as joint family properties to seek for partition by the plaintiffs?
- It is the case of the plaintiffs that the suit C & D schedule properties were purchased out of the income earned by their father. Their father was earning income by doing real-estate business and also by raising flowers and casuarina saplings in the suit B schedule property. It is further case of the plaintiffs that the plaintiffs and the 1st defendant were also doing business along with their father Vadivelu and out of the income earned by their father along with them, the suit properties were purchased in the name of their mother-3rd defendant, for the benefit of the joint family. It is further submitted by the learned counsel for the appellants/plaintiffs that though it is the case of the defendants that the 3rd defendant had purchased the properties from the funds provided by her parents, she has not produced any tangible evidence before the Court to prove the same. Therefore, on the basis of the ipse dixit of the defendants, the Trial Court ought not to have dismissed the suit.
- But, We are of the opinion that the initial burden only lies on the shoulders of the plaintiffs to establish that their father had multiple avocations and that apart from maintaining the family consisting of his wife and four children, he had surplus income and out of the said surplus income, the suit C to E schedule properties were purchased in the name of the mother-3rd defendant for the benefit of the joint family. Though it is submitted that the appellants/plaintiffs were doing business along with their father and earning income, We find that the suit C schedule property was purchased in the year 1978 through Ex. A.1 dated 29.05.1978 and the suit D schedule property was purchased under Ex. A.2, dated 21.03.1981 and the suit E schedule property was settled in favour of the 3rd defendant under Ex. B.4 dated 30.12.1992. According to P.W. 1, he was born in the year 1975. Therefore, as contended by the learned senior counsel for the respondents, he was only three years in the year 1978 and 6 years in the year 1981 and 17 years in the year 1992. Therefore, the case projected by the plaintiffs that they are helping their father in his business and earning income, is totally unbelievable and the same cannot be accepted.
- Further, except the oral evidence of P.W. 1, No other tangible evidence was produced on the side of the plaintiffs to show that the properties were purchased out of the income earned by the plaintiffs and the 1st defendant along with their father and they are treating the properties as joint family properties. Though the plaintiffs have examined some independent witnesses as P.W. 2 to P.W. 4, their evidence are also not helpful in any way to sustain the case of the plaintiffs. In fact, P.W. 2 stated in his evidence that he was not in talking terms with the 3rd defendant. Therefore, the submission made by the learned counsel for the respondents that P.W. 2 has motive to give evidence against the 3rd defendant, is acceptable one. Further, P.W. 3 & P.W. 4 in their evidence deposed that the plaintiffs’ father was doing flower business and earning income and purchased the properties. But, these evidences are not sufficient to come to the conclusion that the properties were purchased only from the income of the father Vadivelu, when admittedly all the documents are standing in the name of the 3rd defendant-mother. Therefore, We are of the opinion that the plaintiffs have miserably failed to discharge their initial burden to establish that the properties were purchased from the income of the father and sons.
- It is well settled legal principal that initially burden lies upon the member who alleges that a particular property is a joint family property to the extent that the alleged joint family nucleus must have left sufficient surplus income and by utilising the same, the property in question could have been acquired. If the initial burden as referred to above is proved, then the burden shifts to the member of the joint family setting up claim that it is his/her personal property and the same has been acquired without any assistance from the joint family property. On the failure to prove the existence of nucleus, the inevitable presumption is that the acquisition in question is nothing but self acquisition. Mere fact of existence of a joint family does not lead to the presumption that a property held by any of its members is joint family property unless the above aspects are proved. If the property acquired is standing in the name the of the female member of a joint family, she need not prove as to how she acquired it.
IN THE HIGH COURT OF MADRAS
A.S. No. 593 of 2016 and C.M.P. No. 15815 of 2016
Decided On: 27.04.2017
Sadasivam and Ors. Vs. Sankar and Ors.
R. Subbiah and M.S. Ramesh, JJ.
Citation: AIR 2017 Madras 175