TMI Blog1976 (8) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... admasani Ammal died and since then, he was with his maternal grand father for the purpose of education. He, however, admits that his father Ramaswami Iyengar spent for his maintenance and education and even for his upanayanam and marriage. The plaintiff retired after entering Government service in the year 1959. His father Ramaswami Iyengar died in 1964 leaving considerable joint family properties. He would concede that Ramaswami Iyengar executed several wills bequeathing properties to him and to defendants 1 to 5 and such wills are inoperative in the eye of law, as all the properties, which were the subject-matter of the wills, were to be deemed and held to be joint family properties. He therefore, ignores the said wills and he claims a 6/15th share in the totality of the suit properties. He also seeks for mesne profits in respect of his share and accounting regarding the same as against the defendants and for a further direction as against defendants 9 to 12 to deposit the amounts lying to the credit of T.S. Ramaswami Iyengar into Court and for costs. In the course of the pleadings, he would refer to an alleged sham legal proceedings in the year 1898 between T.S. Ramaswami Iyenga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt family properties. The case of blending is pleaded. On the foot of this alternative plea, it is said that Ramaswami Iyengar had always intended to treat the properties acquired by him though as self-acquired properties, for the benefit of the entire family, and that therefore, the Suit properties should be treated and held as joint family properties in which the plaintiff is entitled to his legitimate share. 2. The appellants as defendants would contend that the compromise decree in O.S. No. 65/1898 on the file of the Court of the District Munsif, Valangaiman at Kumbakonam cannot give the impression and much less the reasonable impression that it was a make-belief affair invented by the father and the two sons and that in fact Ramaswami Iyengar did not take at the time when he compromised the partition action and came forward from his family any share in the joint family properties. The enumeration of the various advances as if made by Ramaswami Iyengar either in his own name or in the name of his second wife and her children are fictitious and at no time Ramaswami Iyengar did receive any benefit from the joint family either in the shape of secreting the income therefrom or u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undue influence and pressure? 7. Whether the Wills, settlements and dispositions of monies, etc. are valid and binding on plaintiff and 2nd defendant? 8. Whether the plaintiff and 2nd defendant are estopped from questioning the wills and dispositions? 9. Whether the plaintiff and 2nd defendant are entitled to the share of 6/15 or any other share in suit properties and monies? 10. Whether plaintiff is not in joint possession? 11. Whether the 2nd defendant is liable to render an account in respect of C schedule and any and what moneys? 12. Whether there are amounts in deposits in the Banks (defendants 9 to 12) and whether they are bound to put the same into Court? 13. Whether the claim is barred by time? 14. Whether the suit is bad for nonjoinder of parties? 15. Whether the valuation and Court-fees paid are correct? 16. What are the moveables, jewels cash, Bank deposits, etc., which are liable to division? 17. Whether defendants 1 and 3 also are not liable to render account as claimed? 18. What provision is to be made for charities? 19. Whether plaintiff is entitled to charge? 20. To what reliefs are the respective parties entitled? 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of female members are properties of the joint family. It is by now well established that properties standing in the names of the female members are their own, unless there is definite, clinching proof to the contrary by the challenging member. It is not for the female member to prove how she acquired the same. In ordinary cases also where a plea of benami is set up it is for the person who comes to Court to establish that the properties standing in the name of the other co-parceners or members are really joint family, properties which stemmed from the joint family nucleus. While considering the term nucleus it should always be remembered that such nucleus has to be established as a matter of fact and. the existence of such a nucleus cannot normally be presumed or assumed on probabilities. The extent of the property, the income from the property, the normal liability with which such income would be charged and the net available surplus of such joint family properties do all enter into computation for the purpose of assessing the content of the reservoir of such nucleus from which alone it could with reasonable certainty be said that the other joint family properties have been pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the written statement of Srinivasa Iyengar to the effect that there has been such misappropriation would by itself be sufficient to give the impression that Ramaswami Iyengar secreted the family funds to his advantage. His argument is that the compromise decree and Exhibits A-1 to A-4 which relate to the suit O.S. No 65 of 1898 do give the impression that Srinivasa Iyengar and Rajagopala Iyengar gave up their right to the said sum of ₹ 5,000 misappropriated by Ramaswami Iyengar and in lieu thereof Ramaswami Iyengar gave up his right over the joint family properties. This is a very tall suggestion. This will be made clear from the conduct of the parties after the compromise decree and how the family properties were dealt with and that possibly could have been the income from the properties even assuming that Ramaswami Iyengar was for sometime in sole management of it. An accent is made on (referred to in Exhibit A-1. This is the compromise decree. If really the intentions of the parties were that there is such a misappropriation or appropriation of a sum of ₹ 5,000 by Ramaswami Iyengar, nothing prevented the parties from making a reference to it in the compromise memo. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be put on record. It is also not impossible to conceive that a coparcener, who was able to stand on his own and who was able to earn by his own efforts would give up his rights in the joint family totally and would prefer to come out of it rather than be in it taking no benefit under it, but only liabilities. That Ramaswami Iyengar was having money-lending business is admitted by Srinivasa Iyengar in Exhibit A-4. Exhibit A-93 is yet another document which shows that Ramaswami Iyengar was doing business of his own. It is the common case of all parties that Ramaswami Iyengar was the karnam of the village. This happened at a time when Srinivasa Iyengar was absent from the village. As the office of karnam was hereditary in those days, Ramaswami Iyengar was appointed to that office. Srinivasa Iyengar did not have the authority to transfer that office to Ramaswami Iyengar. On account of the fortuitous circumstances resulting from the absence of Srinivasa Iyengar from the village, the appropriate authority should have thought fit to appoint Ramaswami Iyengar as the karnam, as he was the son of the last holder of the office. The trial Judge himself concedes that Ramaswami Iyengar should h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cents were sold for ₹ 165. Under Exhibit B-162, three acres and 63 cents were sold for ₹ 1,000 to clear off antecedent debts. After selling away a sizable portion of the family properties taken over by them, the balance thereof were divided under Exhibit B-63 between Srinivasa Iyengar and Rajagopala Iyengar. A reading of this document shows that what was divided amongst them were very small extents of land. It is, therefore, fairly clear that in order to discharge very small debts, Srinivasa Iyengar and Rajagopala Iyengar had to sell away the corpus of the family. If really there was considerable income from the family properties taken over by Srinivasa Iyengar and Rajagopala Iyengar, then there was no necessity at all, for the sales under Exhibits B-160, B-161 and B-162. Apart from the bare suggestion made by the plaintiff, who was not in the know of things at the appropriate time, there is no evidence to show that during the time when Ramaswami Iyengar managed the joint family properties, there was such considerable income and necessarily surplus income, which could form the nucleus for the investments made by Ramaswami Iyengar. when he was managing the family during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9. There are also certain statements made by the plaintiff himself which are against his interest and which also would throw light upon the fact that there was no joint family nucleus. In Exhibit B-37 the plaintiff asked for funds for his further education. There is no whisper about the existence of joint family property. On the other hand, for a paltry sum of ₹ 204 he would request his father to earn it and send it to him. If really the family was possessed of considerable income the plaintiff would not have written such a letter. A suit filed by the husband of one of the daughters of Ramaswami Iyengar against Ramaswami Iyengar and the plaintiff and the second defendant was settled out of Court and the plaintiff and the second defendant were not made liable to the suit claim. This was obviously because there was no joint family property in the hands of Ramaswami Iyengar, which could be proceeded against. In that suit, a written statement which was adopted by the plaintiff herein filed by the second defendant herein, is very significant The plaintiff would admit that the properties in the possession of Ramaswami Iyengar are his own self-acquisitions and defendants 2 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that at no time the plaintiff felt that there were joint family properties and. income from such properties which could be availed of by him at a later stage. 12. We have already touched upon the fact that the family properties of an extent of 9 acres odd could not have yielded so much income so as to leave a surplus in the hands of the manager for him to utilise the same for the benefit of the members of the family. 13. Mr. Chellaswami, would contend that they were fertile lands and that Ramaswami Iyengar was in management of the family properties for a period of seven years and, therefore he must have retained with him sufficient surplus income of the joint family. Reference is made to Exhibits B-40 and B-41. He would urge that Ramaswami gave up his claim in the family properties because it was advantageous to him. No doubt, he would also advance the argument that the earnings of Ramaswami Iyengar as a karnam should be deemed to be joint family income. All these contentions found favour with the trial Court. But we are unable to agree with them. The family had to sell almost the entirety of the family properties to discharge paltry debts. There is nothing compelling in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he joint stock with the intention of abandoning all separate claims to it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred from acts which may have been done from kindness or affection. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. Such intention can be discovered only from his words or from his acts and conduct. It, therefore follows that until there is clinching proof of relinquishment or abandonment of separate claims over the separate property of a member of a Hindu joint family and until it is shown that as a consequence of such abandonment, he has mixed up the said prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arily distinguish self-acquired property from joint family property are very well-known. The property should have been acquired by the member, may be the father by his own exertions and such acquisitions should be without any reference to or with the aid of family funds and lastly, such properties were not mixed up with the family property with the intention of bringing it to the hotchpot of the joint family. In our case, we find that every indicia to badge the suit properties as the self-acquired properties of Ramaswami Iyengar is available. Ramaswami Iyengar was by himself a very capable person. As a karnam, he ought to have earned by himself. This is also clear from Exhibit A-93. He was convicted under Section 406, Indian Penal Code, for having converted pledged goods. This was in the year 1900. We are referring to this exhibit only to show that as early as 1900 Ramaswami Iyengar was lending money and held himself out as a money lender. After going to Kumbakonam, he was employed in a flourishing concern and it is not in dispute that although he was employed as a clerk, he was independently exercising a vocation of money lending. He used to borrow monies at a smaller rate of inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
