1980 INSC 0275 Kochadai Naidu and Others Vs Ayyalu Naidu and Others Nagayaswami Naidu and Others Vs Kochadai Naidu and Others Civil Appeals Nos. 2261 (N) and 2308 (N) of 1968 (A. C. Gupta, E. S. Venkataramiah JJ) 28.07.1980 JUDGMENT GUPTA, J. ­ 1. These are two appeals which arise out of a suit for partition filed in the Court of the Subordinate Judge of Dindigul, Tamil Nadu on September 17, 1958. Plaintiffs are the appellants in C.A. No. 2261 of 1968; in the other appeal C.A. No. 2308 of 1968, the appellants are defendants 2, 3, 4 and 5. 2. Plaintiffs case as made in the plaint is as follows : The two plaintiffs and the five defendants constitute a joint Hindu family. The plaintiffs are the sons of the first defendant, Aryyalu Naidu. Defendants 1 and 2 are the sons of one Alagar Naicker. The third defendant is second defendant's son. The fourth defendant is third defendant's wife and defendants 5 is their daughter. In 1941 Alagar Naicker was allotted the properties mentioned in Schedule 'A' of the plaint on oral partition between himself and his agnates. Alagar Naicker died in 1942 and 'A' Schedule properties devolved upon the plaintiffs and defendants 1 to 3 by survivorship. The second defendant being the elder member of the family after Alagar Naicker's death used on manage the joint family properties. Algar Naicker had a paternal uncle whose name was Kochadai Naicker. Kochadai Naicker had no male issue. According to the plaintiffs the second defendants in whom he had reposed great confidence used to manage all his affairs. The plaintiffs allege that in 1944 when Kochadai Naicker had become old and infirm, defendants 1 and 2 "had come to an understanding to divide the properties of Kochadai Naicker between themselves depriving his widow and daughters. Kochadai Naicker who married twice had four daughters by his first wife and two daughters by the second. In pursuance of that plot the second defendant on December 27, 1944 had a document executed by Kochadai Naicker which was described as a deed of adoption (Ex. B-7). In this document there is a recital that Kachadai Naicker had taken the first defendant in adoption about 30 years ago. The plaintiffs assert that as a matter of fact Kochadai Naicker had not taken the first defendant in adoption at any time. According to the plaintiffs, defendants 1 and 2 acting in league brought into existence a number of documents after 1944 in which the first defendant was described at son of Kochadai Naicker; in none of the documents relating to Kochadai Naicker's properties executed prior to 1944 the first defendant had been described as such. The plaintiffs version is that in the matter of bringing into existence the aforesaid documents after 1944, the first defendant, who was their father, was only a tool in the bands of the second defendant who was his elder brother and manage of their joint family. Kochadai Naicker died on February 16, 1946 leaving behind him two wives Kamakshi and Alagammal, and six daughters Kamakshi died in 1953; two of her daughters died before the suit was instituted. 3. According to the plaintiffs some time in 1947 a tentative arrangement was agreed upon by the first and the second defendant for convenient enjoyment of the ancestral properties left by Alagar Naicker under which the first defendant had possession of Item 29, 32, 33, 35 and 40 and half of Item 25, 28, 30, 31, 37, 38 and 39 of properties mentioned to Schedule 'A' to the plaint, while the second defendant continued to be in possession and enjoyment of the other properties described in that Schedule. In 1954 the two brother, defendants 1 and 2, appear to have fallen out when the first defendant while asserting his half share in the properties of their father Alagar Naicker refused to part with any of Kochadai Naicker's properties of which he was in possession in favour of the second defendant. The second defendant resented what he thought was ungrateful conduct on the part of the first defendant after what the second defendant had done for securing Kochandai's properties for him. 4. The plaintiffs seek partition and separate possession of the properties described in Schedules 'A', 'A-1', 'B', 'C', 'D' and 'E' of the plaint. The properties mentioned in Schedules 'A' and 'A-1' were left by Alagar Naicker. According to the plaintiffs, the second defendant purchased out of the surplus income of the joint family properties the 'B' Schedule properties in his own name, and the properties of Schedules 'C', 'D' and 'E' respectively in the names of the third, fourth and the fifth defendants. In paragraph 31 of the plaint, the plaintiffs state : The suit is filed for converting the joint possession of the plaintiffs along with defendants 1 to 3, in respect of the suit properties into separate possession of their 2/6 share in the same and on such severance allot a 2/6 share in the plaint properties and for taking an account of the income from the joint family properties for the period of management of the 2nd defendant and to recover their share of what a found due to the plaintiffs on the taking of accounts. But the plaintiffs give up the amounts due to them for all years. Except for one year i.e., from September 18, 1957 to September 17, 1958. 5. The second defendant's version in his written statement is that the first defendant since his adoption by Kochadai Naicker had ceased to be a member of Alagar Naicker's family. He denies what he had over come to any understanding with the first defendant to grab Kochadai's property after his death and divide it between themselves. According to the second defendant he had no reason to entertain any such idea because the first defendant's adoption by Kochadai Naicker was true. Kochadai's wife Kamakshi Ammal had signed the deed, Ex. B-7, which had been registered. This document executed in 1944 sought to confirm the adoptions which was said to have been made about 30 years earlier. Explaining why the fact of adoption was not recorded in writing when it was made, the second defendant says that "the parties very probably thought then that there was no need for any such writing", but "when moneys had to be borrowed from Chetty families for proposes of agriculture, money-lending Chettiars in view of the absence of a deed of adoption insisted that the first defendant should be described as the natural son" of his father. Therefore, the "parties had no option but to executes the said deed" in 1944. The second defendant denies that he brought into existence documents to support the first defendant's claim to Kochadai's extent at adopted son against Kochadai's widow Kamakshi Ammal. The story of a tentative arrangement in 1947 for convenient enjoyment of the ancestral property left by Alagar Naicker mentioned in Paragraph 20 of the plaint is described by the second defendant as "imaginary" and "false". He denies that the properties mentioned in Schedules 'B', 'C', 'D' and 'E' were acquired out of the surplus income of the ancestral properties. The second defendant also contends that is it is true that Kochadai's properties were obtained by the first defendant as a result of a pact between him and the second defendant for their common benefit, Kochadai's properties also should be made available for division according to the alleged pact. 6. The third defendant who is the second defendant's son adopts his father's written statement and adds that Items 1 and 3 to 8 of Schedule 'C' properties were purchased with his own funds and that he obtained a mortgage in respect of Item 9 by advancing loan also from his own funds. The origin of his funds is stated to be the properties given to him by his mother who, in her turn, got them as 'Stridhan' from her father's family. At regards Item 2 of that Schedule, which also stands in the name of the third defendant, it is stated that he is only a name lender and the property belongs to one. Chinnathayammal and that none of the parties to the suit has any manner of right or title to it. 7. The case of fourth defendant, wife of the third defendant, is that properties of 'D' and 'E' Schedules have been purchased with the income of her own 'Stridhan' properties. 8. The first defendant who is the father of the plaintiffs admits the allegations is the plaint. He adds that for "convenient enjoyment" a tentative arrangement was agreed upon by and between him and the second defendant in 1947 under which the first defendant was in exclusive enjoyment of certain items of property of 'A' Schedule and the second defendant was "allowed to be in enjoyment" of a major portion of the properties of that Schedule because by that time the first defendant "had managed to secure possession of some of the properties of Kochadai Naicker". The case of the defendant is that after Kochadai Naicker's death, his widow Kamakshi Ammal and Kochadai's daughters opposed the first defendant's claim to the stage of Kochadai Naicker. There were proceedings under Section 144 of the Code of Criminal Procedure between Kamakshi Ammal and the first defendant. Kamakshi Ammal died in 1953. Thereafter the second defendant claimed a share in the properties secured by the first defendant in Kochadai Naicker's estate which the first defendant declined to surrender. Being disappointed the second defendant out of malice induced Angammal, a daughter of Kachadai Naicker, to file a suit in 1957 in forma pauperis for partition and separate possession claiming one-third share in Kochadai Naicker's properties. In this suit the first defendant and the other daughters of Kochadai Naicker were impleaded as defendants. During the pendency of the proceedings the parties agreed to settle their dispute and the petition for leave to sue in forma pauperis which was them pending was allowed to be dismissed for default. This was followed by a family arrangement evidenced by a registered deed dated October 22, 1957 (Ex. A- 27). 9. The trial Court found on a consideration of the evidence that the document dated December 27, 1944 described as the adoption deed (Ex. B-7), though Kochadai Naicker had executed it, had been brought into existence fraudulently by defendants 1 and 2 together taking advantage of the age and inability of Kochadai Naicker to take care of his own affairs. The trail Court found that prior to this "adoption deed" there was not a single document in which the first defendant had been described as Kochadai Naicker's adopted son, and the documents executed subsequent to the deed in which the first defendant has been described as such were all created "in pursuance of a scheme of fraud" for the purpose of laying a claim to Kochadai Naicker's estate. The trial Court also disbelieved the oral evidence adduced in support of the case of adoption. The trial Court decreed the suit as follows : In the result, the suit is decreed for partition of the immovable properties described in Schedules 'A', 'B', 'C', 'D' and 'E' of the plaint into six shares and the possession of two such shares to the plaintiffs' and one such share to the first defendant. The plaintiffs are entitled to a partition of the moveables admitted to be in existence by the second defendant in the written statement filed by him into six shares and possession of two such shares. The first defendant is entitled to a one-sixth share in them. The second defendant will render an account of the income from the properties of the joint family for the period from September 18, 1957 to September 17, 1958 as claimed in the plaint para 31. If any surplus from out of the income of the joint family properties is found to be with the second defendant on taking such accounts, the plaintiffs would be entitled to a 2/6th share in the same and the first defendant to a one-sixth share. Defendants 2 to 5 will pay the costs of the plaintiffs in this suit. 10. The High Court on appeal preferred by defendants 2 to 5 also held that the contesting defendants had failed to establish that the first defendant was given in adoption to Kochadai Naicker, that "the evidence adduced about the factum of adoption" was "simply worthless". The High Court also rejected a contention raised on behalf of the contesting defendants that the estate of Kochadai Naicker in the possession of first defendants 1 and 2 acquired by them by their joint labour and exertion. The High Court pointed out from the relevant paragraphs of the plaint and the written statement of the first defendant that whatever defendants 1 and 2 did was all for and on behalf of the first defendant for his benefit and that it was impossible to read into the pleadings a case of joint acquisitions by joint labour. In any event, it is clear from what the trial Court and the High Court have found that the first defendant's right, if any, in Kochadai Naicker's estate rested on the family arrangement deed (Ex. A-27) dated October 22, 1957. The High Court however held disagreeing with the trial Court that the plaintiffs and the first defendant were not entitled to any share in the properties of 'B' Schedule except Item 2 and the 'C', 'D' and 'E' Schedules properties. The High Court did not also allow the plaintiff's prayer for a direction on the second defendant to render accounts saying : .... if second defendant is called upon to render an account .... equally the first defendant would be liable to render an account of the income from the properties which were left in his possession. In such cases, where several members of the family are put in possession of separate items of properties for convenient enjoyment, the only relief that could be awarded is the relief of partition by metes and bounds .... The High Court came to the following conclusions : (1) the first defendant Ayyalu is still a member of the joint family of the contesting defendants and it is hereby declared that the plaintiffs 1 and 2 are entitled each to 1/6th share and the first defendant another 1/6th share in the 'A' Schedule properties and the moveables as per the lower court decree. (2) The 'B' Schedule properties (except Item 2) and the 'C', 'D' and 'E' Schedules properties are not partible properties and the plaintiffs and first defendant are not entitled to any share therein and (3) The plaintiffs and the first defendant are not entitled to the relief of accounting of the income from the properties. 11. In this appeal defendants 2 to 5 question the correctness of the finding that they had failed to establish that the first defendant was given in adoption to Kochadai Naicker. The trial Court and the High Court have concurrently found that the story of adoption was not true, and this is a finding of fact. The finding is based on a consideration of the relevant material on record. We do not find any justification for interfering with this finding on the evidence before us. This appeal must therefore be dismissed. Civil Appeal No. 2261 of 1968 12. This appeal relates to the properties set out in 'B', 'C', 'D' and 'E' Schedules of the plaint. It has already been stated that the High Court reversing the decision of the trial Court held that these properties except Item 2 of 'B' Schedule were not partible properties and that the plaintiffs and the first defendant were not entitled to any share therein. The question is whether the High Court was right in reversing the findings of the trial Court in respect of those properties. 13. The properties of 'B' Schedule may be taken up first for consideration. There are four items of property in 'B' Schedule. It is not necessary to refer Item 2 which has been concurrently found to be joint family property. Items 1 and 4 stand in the name of the second defendant who was examined as DW 6. In paragraph 31 of his written statement the second defendant says that "Item 1 and 4 of 'B' Schedule properties" were "purchased by this defendant from out of the income of the joint family properties belonging to his family. Neither the plaintiffs nor the first defendant has any right or title to the same". It is not clearly stated what the second defendant meant by "his family". Probably the reference was to the alleged joint family consisting of himself and his son, and this would be consistent with the case he sought to make that the first defendant had been adopted into another family and ceased to be a member of the original joint family. There is however no evidence what were these properties belonging to "his family" and what was the income out of them. It has been found by both courts that the plaintiffs and the first defendant continued to be members of a joint Hindu family with the second and third defendants. The High Court however came to the conclusion that Items 1 and 4 of 'B' Schedule were not joint family properties on the view that "in this case, till 1941 there were three branches and the second defendant was only a grandson of the latest of the three branches. There is no evidence at all that the second defendant has any access to the family properties or enjoyment of the family properties". It is difficult to see how this could be a valid consideration in negativing the finding of the trial Court when the fact remains that there was the joint family and these two items had been purchased in the name of the second defendant. The High Court also thought that because these two items of property were purchased for comparatively small sums, "it cannot be postulated that the second defendant would not have acquired the properties himself." But this is only a sunrise and there is convincing evidence that the second defendant purchased these properties with his own money. The property mentioned in Item 3 also stands in the name of the second defendant. According to the second defendant the money for purchasing this property was given to him by his wife and that he was a benamidar. His case is that his wife at the time was improved and from out of the same" the sale price of the property was paid by her. The trial Court disbelieved the story. This is what the trial Court said on the second defendant's claim : "He says that his wife was given money about forty years ago when he married her but that she did not invest that money in any bank and did not lend that money of her own. It is seen from his evidence that her brother owns only about three acres of land worth about Rs. 7000 or so now. He admits that her father had no money-lending transactions of his own and did not sell any property before this witness (second defendant) married his daughter." We think the High Court had no valid ground for reversing the well considered finding of the trial Court on this point. We are, therefore, of opinion that so far as properties of 'B' Schedule are concerned the decision of the trial Court was correct and this was wrongly reversed by the High Court. 14. 'C' Schedule consists of nine items of property. All these properties which include two mortgages are in the name of the third defendant. As regards the property mentioned as Item 2 of 'C' Schedule the third defendant says that this was purchased with the money and for the benefit of one Chinnathayammal and that he was only a benamidar. The trial Court refused to accept the story because Chinnathayammal had not been examined. As regards Items 1 and 3 to 9 the trial Court disbelieved the third defendant's case that these properties were acquired from the sum of Rs. 3000 and jewels weighing 15 sovereigns. The High Court however found it believable that these properties were acquired out of the third defendant's inheritance from his mother. We are inclined to agree with the High Court that 'C' Schedule properties were acquired out of the third defendant's inheritance from his mother. The High Court points out that all these properties were acquired between 1952 and 1957 when, according to the statement made in paragraph 20 of the plaint, pursuant to a tentative arrangement for convenient enjoyment of the ancestral properties the parties had been in separate possession and enjoyment of some of the joint family properties. The findings is that these properties were acquired following the aforesaid arrangement out of the income of the properties of which the second defendant was then in separate possession of certain properties in pursuance of a tentative arrangement entered into in 1947. The High Court observes: The very idea of allotment for convenient enjoyment, though reserving a right to effect a final partition by metes and bounds carries with it necessary implication that the two branches were entitled to deal with the income accruing from the properties allotted to them in any manner they liked, and either branch will have no claim as against the other in respect of properties purchased out of such income .... It will be meaningless and frustrate the very object of the arrangement, if we import into this arrangement any liability to render account inter between the brothers for the income. The only logical and rational basis on which this arrangement could be understood and worked out is that the income from the properties allotted to the two branches will belong to the respective branches. We agree with the view taken by the High Court, and in this view Item 2 of 'C' Schedule would also not be a partible property having been acquired within the aforesaid period, if the benami story is not believable. 15. 'D' and 'E' Schedules properties stand in the name of the fourth defendant who is the wife of the third defendant. The trial Court did not accept a claim made by the third defendant that these properties were purchased from the funds given to the fourth defendant by her mother and held that when a joint family is found to be in possession of sufficient nucleus to make the impugned acquisitions, then a presumption arises that the acquisition are joint family properties. The High Court however was of the view that no such presumption arises when the property stands in the name of a member of the family who is not a coparcener. The correctness of this proposition has been disputed on behalf of the appellant. We do not find it necessary to go into this question. All these properties were acquired between 1955 and 1956 when the aforesaid arrangement for convenient possession between the first and the second defendant was subsisting. On the ground on which the 'C' Schedule properties have been found to be non-partible, the properties of 'D' and 'E' Schedules also cannot be treated as joint family properties. It is pointed out in the judgment of the High Court that between 1953 and 1956 properties were purchased in the name of the first defendant as evidenced by Exs. B-12, B-14, B-17, B-18 and B-19 and also in the name of the first plaintiff, but these properties have not been brought into the hotchpotch. The High Court concludes : "Having regard to the fact that properties were purchased in the individual names of the members of the family ... it has to be held that the intention of the parties is to hold these properties as their own ..." Considering the circumstances of the case we agree with the High Court that 'D' and 'E' Schedules properties are not partible. 16. In the result Civil Appeal 2308 is dismissed. Civil Appeal 2261 is allowed to the extent that insofar as 'B' Schedule properties are concerned the decree of the High Court is set aside and that of the trial Court in respect of these properties is restored; the decree of the High Court is affirmed in respect of 'C', 'D' and 'E' Schedules properties. There will be no order as to costs in either of the appeals.