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TMI Blog2023 (8) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... r partition, separate possession and rendition of accounts in respect of six items of immovable properties described in Schedule 1 and eleven items of movable properties described as Schedule 2. The plaintiff, who is the son of T.S.Ramasamy Chettiar and Sowdammal, who died on 21.01.1968 and 12.12.2001 respectively claimed 9/24th share in the suit properties on the premise that all the suit properties belonged to the joint family, of which, T.S.Ramasamy Chettiar was Karta. Claiming that T.S.Ramasamy Chettiar died leaving behind two sons and five daughters, the plaintiff / R.Balakrishnan would seek a share as a Coparcener and a share out of the share of Ramasamy Chettiar as Clause-1 heir. The other son and daughters of Ramasamy Chettiar, who are six in number and certain alienees as well as the wife of the 2nd defendant were the original defendants. One of the daughers of Ramasamy Chettiar, R.Sarojini died and her husband, son and daughter were impleaded as defendants 11 to 13. Basis on which, the plaintiff sought for partition is as follows:- 2.1. Ramasamy Chettiar and his children constituted a joint Hindu family. Ramasamy Chettiar was doing cloth business at Coimbatore and earned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1995 executed by her mother-in-law, Sowdammal is valid and binding and for a permanent injunction restraining the defendant from in any manner interfering with the enjoyment of the borewell by installing a motor pumpset. There was also a prayer for possession of the "B" schedule property and for damages at Rs. 1,000/- per month. The averments in the written statement of the 2nd defendant in O.S.No.307 of 2004 were substantially the averments in the plaint in O.S.No.841 of 2007. Similarly, the defence to O.S.No.841 of 2007 was the plaint averments in O.S.No.307 of 2004, apart from denial of the Will said to have been executed by Sowdammal on 05.06.1995. 5. On the basis of the pleadings, the following issues were framed in O.S.No.307 of 2004:- "1. Whether the plaintiff is entitled for 1/7th share in the suit property? 2. Whether the plaintiff is entitled for accounts as prayed for ? 3. Whether the Will dated 05.06.1995 is genuine or not? 4. To what other relief?" 6. In the Trial Court, the following issues were framed in O.S.No.841 of 2007:- "i) Whether the plaintiff is entitled for recovery of possession in respect of "B" schedule property ? ii) Whether the Will date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve come up with A.S.No.841 & 842 of 2013, while the plaintiff in O.S.No.307 of 2004 has come up with A.S.Nos.516 & 517 of 2013. 10. We have heard Mr.R.Krishnan, learned counsel for the appellants in A.S.Nos.481 & 482 of 2013 and for respondents 2, 9 and 13 in A.S.No.516 of 2013 and respondents 2 to 4 in A.S.No.517 of 2013, Mr.C.R.Prasannan for the sole respondent in A.S.No.481 of 2013, for the 1st respondent in A.S.No.482 of 2013 and the appellant in A.S.Nos.516 & 517 of 2013, Mr.R.Subramanian, learned counsel for respondents 2 to 5 and 8 to 10 in A.S.No.482 of 2013 and Mr.R.Subramanian for G.Indira for the respondents 1, 3 to 5 and 10 to 12 in A.S.No.481 of 2013. 11. Mr.R.Krishnan, learned counsel appearing for the appellants in A.S.Nos. 481 & 482 of 2013 namely, the 1st son, his wife and daughter of Ramasamy chettiar would vehemently contend that the Trial Court grievously erred in coming to conclusion that Items 1 to 3 were purchased by Ramasamy Chettiar in the name of his wife, Sowdammal out of his own funds and the presumption under Section 3(2) of Benami Transaction (Prohibition), Act as it stood prior to the amendment, stood rebutted. 12. Drawing our attention to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person claiming that a particular property was ancestral or it belonged to the joint family, the burden of proving the same lies on him. He must show initially that there was sufficient nucleus. A presumption that a property in the hands of an individual coparcener was joint family property can be drawn only if it is shown that there was a nucleus of the joint family property, from which it might fairly be said to have grown. If such nucleus is proved by sufficient evidence or admitted by the opposite party, only then, the onus of proving separate acquisition on the coparcener alleging the same would arise. In the instant case, a careful analysis of the evidence, both oral and documentary would reveal that the plaintiffs have not discharged the burden of proof, showing that the suit properties were ancestral properties." 15.2. The judgment of this Court in Muniappa Naicker Vs. Balakrishna Naicker reported in 1998 (2) LW 259, wherein it was held as follows:- "On the basis of the law declared in the various Texts as well as case-laws, the following propositions emerge : (1) A Hindu Family is presumed to be joint. But at the same time, there is no presumption that the joint famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned counsel would point out that the said properties were purchased on 26.04.1990 and 10.08.1990 under Exs.A16 and A17, after coming into force of the Benami Act and as such the exceptions available under Section 4 will not be available for the said purchase. Adverting to the Will dated 05.06.1995, the learned counsel would contend that it is a registered Will, which has been executed in terms of Section 63 of the Indian Succession Act and the same has been proved in accordance with Section 68 of the Evidence Act by examining the attestor to the said instrument. It is also pointed out that nothing has been brought about to discredit the evidence of the attestor regarding the execution of the Will. 17. In so far as the disinheritance of the other heirs of the Sowdammal, the learned counsel would submit, the daughters have gone out of the family after marriage and the plaintiff in O.S.No.307 of 2004, who is the other son was not taking care of the mother, and it was the 2nd defendant who was looking after her. This impelled the mother to execute a will in favour of her daughter-in-law/wife of the 2nd defendant. The learned counsel would also rely upon the judgment in Valsa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written as if they are signatures of Sowdammal by someone else. He would also point out that the attesting witness namely, D.W.4, Mohammed Haneefa had admitted that he had worked with the 2nd defendant for more than eight years. 21. According to Mr.C.R.Prasannan, the very fact that Sowdammal, who was the mother of at least seven children had chosen to exclude all of them without assigning any reason and had preferred her daughter-in-law by itself would be a suspicious circumstance and no attempt has been made by the 9th defendant, the legatee to dispel the said suspicion except her own oral evidence that she had blamed the others for not caring for the mother. Mr.R.Subramanian, learned counsel for the other defendants / respondents adopts the arguments on the above contentions of Mr.C.R.Prasannan. 22. On the above contentions of the learned counsel appearing for the parties, the following points arises for consideration in the appeals:- i) Whether the Trial Court was right in concluding that Items 1 to 3 of suit properties were belonged to Ramasamy Chettiar, though the sale deeds dated 27.10.1948 stood in the name of Sowdammal? ii) Whether the ancestral nucleus found to be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t therefore, we will have to examine only the evidence regarding the presumption, in order to see whether it would be sufficient to rebutt the statutory presumption created under Section 3(2) of the Benami Transaction (Prohibition) Act. The plaintiffs have produced the income tax returns of Ramasamy Chettiar for the period during 1958-1959, 1959-1960, 1967-1968, which would go to show that Items 1 to 3 of the 1st schedule were always shown to be the properties of Ramasamy Chettiar. 26. We find force in the contention of the learned counsel for the respondents in A.S.No.481 & 482 of 2013 to the effect that Ramasamy Chettiar, who was the head of the joint family having seven children would not have intended to benefit his wife alone. The fact that he was forced to sell away the property in 1961 to get the 1st defendant married is projected as a pointer. When we look at the totality of the circumstance and evidence of the D.W.1, the eldest daughter of Ramasamy Chettiar and Sowdammal, we find that we have to agree with the Trial Court in its conclusion that the property was purchased by Ramasamy Chettiar out of his own funds and he was intend benefit Sowdammal / his wife through the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them were made only by Sowdammal. We are unable to persuade ourselves to agree with the contention of the learned counsel for the defendants 2, 9 and 10 in O.S.No.307 of 2004 regarding execution of the Will. Despite being a registered instrument, the Court is not precluded from examining the suspicious circumstances. 30. As rightly pointed out by the learned counsel for the plaintiff in O.S.No.307 of 2004, Sowdammal, who was the mother of at least seven children would not have, but for very strong reason, executed a Will excluding six of her children from inheriting her property. We do not find any explanation either in the Will or in the evidence of D.W.2 and D.W.3. 31. Per contra, D.W.1, the eldest daughter has deposed that Sowdammal treated all her children equally. In the absence of any explanation, these circumstances would weigh down the Will. The differences in the signatures as admitted by the witnesses also lead us to believe that the Will emanates out of very suspicious circumstances and it will be dangerous to uphold the same. 32. As pointed out by the learned counsel for the plaintiff in O.S.No.307 of 2004, one Tamil letter 'l' is missing in the signatures ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt family does not entail the same presumption as purchase in the name of the Karta. Therefore, person claiming the property to be joint family property will have to establish by cogent and convincing evidence that the purchase was made out of the funds from the joint family properties. 35. We also find that the nucleus that was available was only a house property, which would not have generated so much of income to enable purchase of Item 4 in the name of the 2nd defendant. Apart from the above, the 2nd defendant has also produced evidence in the form of sales tax returns Ex.B15 and assessment orders under Exs.B18, 19, 20 and 21 to show he has been doing some business at that time. We are therefore, inclined to accept the finding of the Trial Court regarding the character of Item 4 of the suit schedule properties. 36. Point No.3:- This relates to Item No.6, the 6th item of the suit schedule properties was purchased under two sale deeds dated 26.04.1990 and 10.08.1990 marked as Exs.A16 and A17. They stand in the name of the 9th defendant / wife of the 2nd defendant. The purchase is after 17.05.1988 i.e., coming into force of the Benami Transaction (Prohibition), Act. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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