Judgment:
S.S. Subramani, J.
1. Plaintiff in O.S. No. 1433 of 1980, on the file of Principal Subordinate Judge, Coimbatore, filed the Second Appeal. Subsequently he died, and his legal representatives, viz., appellants 2 to 7 have further prosecuted the second appeal.
2. Plaintiff filed the suit claiming half share in the plaint items which are described as B, C and D Schedules. A preliminary decree was passed only in respect of B Schedule. Regarding C and D Schedule items, the suit was dismissed. The matter was taken in appeal but without success. The concurrent judgments of both the courts below are challenged in this second appeal.
3. Plaintiff Kasthuri Naidu, first defendant's father Narayanaswami Naidu and one Ramasami Naidu are the sons of one Sama Naidu. They constituted a Joint Hindu Family. Ramasami died issueless. His wife also pre-deceased him. That is why the plaintiff claims half share.
4. Under Ex.A-1, a settlement deed was executed by the uncle of Sama Naidu. He obtained the plaint B Schedule and Item No. 1 in C Schedule. Item No. 2 of C schedule is a property purchased in a court auction sale dated 17.8.1932, evidenced by Ex.A-2. The auction purchaser is late Narayanaswami, father of the first defendant. D schedule property was also purchased by Narayanaswami under Ex.A-7 in the year 1945. It is said that in that D Schedule property, Narayanaswami put up a construction in 1960. These Items are now claimed as family properties by the plaintiff.
5. first defendant contended that his father Narayanaswami was a businessman even from 1925. Even Sama Naidu did not have any family property of his own, and the only property he obtained was on the basis of settlement deed Ex.A-1. Plaintiff being the son of Sama Naidu, cannot consider those properties as family properties. It was further contended that Sama Naidu and Narayanaswami jointly executed a mortgage in respect of C Schedule Item No. 1, C Schedule Item No. 2, along with some other properties to P.W.2 in this case. They raised a loan of Rs. 1,000 on the security of those properties. Before the mortgage could be redeemed, Sama Naidu died and thereafter under Ex.A-4, Narayanaswami alone executed a document whereby the mortgagee was treated as owner of the property and the entire mortgage debt was also wiped out. There was a provision in Ex.A-4 that in case the amount covered by Ex. A-4 is paid within a period of three years to P.W.2, the property will be reconveyed. Within a period of three years, the amount could not be paid, and time was also being extended from time to time, and finally in the year 1945, P.W.2 reconveyed the C Schedule Items 1 and 2 and other properties back to Narayanaswami. The other property which was also the subject matter of reconveyance, was sold by Narayanaswami to a stranger. The reconveyance deed is Ex.A-5. It is, therefore, contended by the first defendant that none of the items can be treated as family properties over which the plaintiff can claim a share.
6. The trial court, after taking elaborate evidence, i.e., Ex.A-1 to A-23 on the side of the plaintiff and Ex. B-1 to B-213 on the side of the first defendant, came to the conclusion that except for B schedule Item, the plaintiff is not entitled to any right. The trial court also relied on the oral evidence of P. Ws. 1 to 3 and D. Ws. 1 to 4, for the said purpose. Aggrieved by the judgment, plaintiff preferred A.S. No. 50 of 1982, on the file of District Judge, Coimbatore. The lower appellate court did not find any reason to differ from the findings entered by the trial court. The appeal was dismissed with costs. The concurrent judgments of both the courts below are assailed in this second appeal.
7. The following substantial question of law was raised for consideration in this second appeal:
Whether on the facts and circumstances of the case, the finding that the property is not the joint family property is sustainable in law?
8. Plaintiff has miserably failed to prove that there was any family property. Only if mere is sufficient nucleus, the question of acquiring property on that basis would arise. It is seen from the evidence that there was no sufficient nucleus, nor was there any nucleus at all.
9. From the evidence that has been let in, the only property which Sama Naidu had or acquired was under Ex.A-1, The property was acquired by him not on the basis of any partition or inheritance from his forefathers but on the basis of settlement deed executed by his uncle. If that be so, that was his self-acquisition. Plaintiff, who is the son of Sama Naidu, cannot treat the property as family property. In Ex.A-1, the plaint B Schedule Item is also included. That is why the plaintiff has been given a share in the B Schedule as son of Sama Naidu and not as family property.
10. Item 1 of C Schedule is also one of the items included in Ex.A-1. After acquisition under Ex.A-1, and while the father was alive, Narayanaswami acquired C Schedule Item 2. in court auction. Ex.A-2 proves the same. Being an acquisition by a coparcener, law presumes that it is his self-acquisition. Further, it is a court auction purchase. Law does not take congnizance of a plea that a court auction purchase is benami. Section 66 of the Code of Civil Procedure before the Amendment in the year 1976, prohibited such a contention. Apart from the same, the plaintiff has miserably failed to prove that even in regard to the purchase of the property in court auction sale, funds were provided by the family.
11. Another clinching circumstance against the plaintiff is Ex.A-3, his own document, where Sama Naidu and Narayaswami Naidu jointly executed a mortgage in respect of C Schedule Items 1 and 2 along with some other items also. In Ex.A-3, the separate rights of the father and son are described. If it was a family acquisition, there was no necessity for Narayanaswami to join the execution of the deed. Plaintiff as well as Ramaswami, the other son of Sama Naidu, have also not joined the execution of the mortgage deed. The purpose of the loan is also important. It is for their business. There is no evidence in this case to show whether the family had any business. For the separate business of Narayanasami Naidu and also his father, the property was mortgaged to P.W.2.
12. Sama Naidu could not discharge the debt before his death. But Narayanaswami Naidu alone executed a sale deed in favour of P.W.2 in respect of all the properties covered by Ex.A-3, thereby wiping out the mortgage debt. Nobody has questioned that sale deed till date. Under Ex.B-209, there was covenant for reconveyance. The option had to be exercised within a period of three years. Narayanaswami also could not pay the amount within the stipulated time, and by mutual consent, the time was extended for a further period of four years. Within the extended period, Narayanaswami took the reconveyance deed under Ex.A-5. Even at that, time, neither the plaintiff nor Ramaswami Naidu felt that the document should be taken in their name. Under Ex.A-5, all the properties mortgaged were reconveyed, i.e., other properties apart form Items 1 and 2 of C Schedule. Those properties were sold by Narayanaswami Naidu and third parties are in possession. Plaintiff has no case that Narayanaswami was not legally entitled to execute such a deed. Except C Schedule Items 1 and 2 the other properties covered under Ex.A-1 are not the subject matter of the suit. That means, plaintiff also agrees the right of Narayanaswami Naidu to sell the properties.
13. What is the effect of a purchase of a property by a member, which is lost to the family. Ex.A-3 mortgage is of the year 1933. Sama Naidu died only in the year 1936. Nobody attempted to discharge the debt, and finally under Ex.A-4, in 1939, Narayanaswami Naidu executed a sale deed in favour of P.W.2. It is not disputed that the purchaser P.W.2 came into possession of C Schedule Items 1 and 2 on the basis of Ex.A-4. P.W.2 also speaks about it. Thereafter, under Ex.A-5, on 6.8.1945, P.W.2 reconveyed the property to him. Even in cases where a joint family property has gone out of the hands of the family and is purchased by a coparcener from out of his acquisition, the property is considered only as his separate property.
14. In 'Mayne's Hindu Law & Usage' - 14th Edition (1996), at page 649 the learned Author has said thus:
Another mode of self-acquisition, which is not very likely to arise now, is where one coparcener unaided by the others or by the family funds, recovers, with the acquiescence of his co-heirs, ancestral property which had been seized by others, and which his family had been unable to recover. Where ancestral property which is sold in execution of a decree against the karta is subsequently acquired by a coparcener with the aid of his own funds, the property would be treated as the self-acquired property of the coparcener.
Where property was sold by coparcener for the satisfaction of debts in insolvency proceedings and where that property was repurchased by one coparcener out of his separate income in business carried along with his son in partnership, it was held that there can be no presumption that it was done to benefit the joint family.
15. In Revappa v. Madhava Rao and Anr. A.I.R. 1960 Mys. 97, a Division Bench of that High Court held thus:
Where due to efflux of time and change in circumstances, such as non-payment of taxes, etc., the ancestral property leaves the hands of a Hindu, but if he acquires the same property, there is a change in the very character of the property and instead of being ancestral, it becomes the self-acquired property.
16. In Kannika Parameswari Devasthanam v. Sadasivam Chettiar : (1980)2MLJ435 , the repurchase was by manager of a family out of his own funds. In paragraph 9 of that judgment, a Division Bench of this Court, after following a decision of the Privy Council reported in Sitaram v. Mst. Mounni Bibi (1942)55 L. W. 444, held thus:.Where ancestral property which was lost to the family was re-purchased by the father out of his own separate monies, the property so purchased became his self-acquired property. Thus, there is no presumption that any re-purchase endured only to the benefit of the joint family. There is also no presumption that any property standing in the name of the karta or a member is joint family property.
Plaintiff has no case that for the purpose of reconveyance, Narayanaswami used any family funds. In fact I have already held that there was no family property at all for being used.
17. Regarding 'D' Schedule, the same also stands in the name of Narayanaswami, by way of purchase under Ex.A-7 on 24.10.1945. To show that Narayanaswami was doing business, first defendant has produced Ex.B-67 licence issued by the Coimbatore Municipality in the year 1938. Ex.B-68 to B-70 are also such licenses issued to Narayanaswami by Coimbatore Municipality, respectively for the years 1936, 1937 and 1935. He was also paying profession tax, and this is clear from various exhibits filed in this case. It is also evident in this case that Narayanaswami Naidu had taken properties from Wakf Board on lease, for putting up construction therein. Ex.B-72 is a summons issued by the Wakf Board to Narayanswami. Ex.B-85 to B-102 are receipts issued by the Coimbatore Municipality in the name of Naryanaswami to show that he was issued licence and he was also paying property tax in his own name. He was also taking shares from Coimbatore Firewood and Charcoal Merchants Association, and Ex.B-105 shows that he was getting dividend from that Association. The case of the first defendant is that Narayanaswami was dealing in firewood, charcoal, tobacco, etc. The trial court as well as lower appellate court has come to the conclusion that what remained with Sama Naidu was only the B Schedule building at the time of his death, and that is liable to be partitioned, for which a preliminary decree has been granted in favour of the plaintiff. Regarding C and D Schedule items, the concurrent finding is that they are the self-acquisitions of late Narayanaswami, father of the first defendant, and they are not the family properties. The courts below have considered the entire evidence on record, and on proper appreciation of the same, the courts below have come to the correct conclusions. Learned Counsel for appellants has miserably failed in persuading this Court that the concurrent findings of the courts below are illegal, or that any material piece of evidence has not been taken into consideration or that any irrelevant evidence has been given importance.
18. In the result, the second appeal is dismissed, however, without any order as to costs.