1. These Appeals arise out of four different suits seeking reliefs of partition, permanent injunction (two suits) and declaration between members of a family. They were tried together and disposed of by way of a common judgment, hence these Appeals are taken up together for disposal. The parties are referred to as per their rank in OS No.2 of 2006 which is a comprehensive suit for partition.

2. The comprehensive suit is the suit for partition in OS No.2 of 2006, the plaintiff therein is the elder son of one Velayudha Padayachi. The Genealogy traced by the plaintiff is as follows:

3. According to the plaintiff, the family of Ramasamy Padayachi originally hailed from Ogalur Village, a Village now in Perambalur District. The family was possessed of vast extent of lands in the said Village and they belonged to the joint family of the plaintiff, the first defendant and their father Periyasamy Padayachi. The family also had a tiled house, vacant-site, cattle shed, drying yard etc. The main avocation of the family was agriculture and the lands were very fertile and they were yielding a very good income leaving a surplus.

4. Another brother of the plaintiff and the first defendant by name Kanagaraj died in 1992 issueless. The father of the plaintiff and the first defendant Periyasamy Padayachi died in the year 1974, leaving the plaintiff, the first defendant, the deceased Kanagaraj and the third defendant his widow as his only heirs. Even during the life time of Periyasamy Padayachi, the family sold a portion of the land in Ogalur Village and purchased lands in Kodumanur Village as well as in Virudhachalam. The plaintiff, who is the eldest son, joined the Police service in the year 1971. On the death of Periyasamy Padayachi in 1974, the first defendant Rajendran took over the administration of the assets of the family since the plaintiff, who is the eldest son, happened to be in Police service.

5. The first defendant who was in complete control and management of the properties of the family had purchased properties in his name and in the name of the other members of the family including the defendants 2 and 4, who are the wives of the plaintiff and the first defendant, and the third defendant the mother. Since the plaintiff happened to be in Government service, according to him, no property was purchased in his name, though the joint family had lot of surplus funds. Crediting the first defendant with worldly wisdom, the plaintiff would state that the first defendant had sold some of the ancestral properties and had utilised the funds to purchase properties in the name of his mother, his wife and his sister-in-law/the fourth defendant.

6. According to the plaintiff, all the properties so purchased viz., the properties purchased out of the surplus income and the properties purchased out of the sale proceeds of the ancestral properties belonged to the joint family. It is the further contention of the plaintiff that the family also commenced business in Arrack and IMFL and made very decent profits out of the said business. The said profits were also utilised for the purchase of the properties in the names of both male and female members of the family. It is the further contention of the plaintiff that the family, in the year 1996, constituted a Trust with a view to start Educational Institution and the plaintiff’s wife was made a Trustee along with the defendants 1 to 3 and a third party one Mr. Natarajan, the fifth defendant. The Trust started an Industrial Training Institute and lands were purchased for the Trust in the name of the first defendant on 26.05.1997 with a help of loans availed and also with a help of the income from the joint family properties, buildings were also put up. The Trust, according to the plaintiff, is a family Trust. Though the fourth defendant wife of the plaintiff was made a trustee, the first defendant did not allow her to participate in the affairs of the Trust and started appropriating the income for himself.

7. On the above facts, alleged, the plaintiff contended that the properties were joint family properties and therefore, he is entitled to a half share in all the properties and he also sought for framing of a Scheme for management of the Trust which was shown as Schedule ‘C' to the suit.

8. The suit was resisted by the defendants 1 to 3 contending that the properties in Ogalur Village were very meagre and they did not yield enough income for the family. According to the defendants, the properties in Ogalur Village were only of an extent of about 2 acres and 44 cents and the income from it was wholly insufficient for maintenance of the family.

9. As regards lands that were purchased in Kodumanur Village, it was contended that the properties were in possession of the maternal uncle of the plaintiff and the first defendant and the same were conveyed to the grandson of the paternal uncle Velayudha Padayachi viz. Rajamurugan on 27.09.1996. It was also contended that the properties in Kodumanur Village were mortgaged by the plaintiff and the first defendant in order to enable Rajendran son of Velayudha Padayachi to rear fish in the said lands. It was also claimed that the plaintiff had married the daughter of Velayudha Padayachi.

10. As regards the purchases made in and around Virudhachalam, it was contended that the properties were purchased out of the income from the liquor business which was started by the first defendant on his own in the year 1982 with an aid of sum of Rs.10,000/- gifted by his father-in-law. The first defendant also claimed that neither the plaintiff nor his wife had anything to do with the liquor business and the same was carried on by him in the name of various other relatives and the income there from was utilised for purchasing the properties in the name of his wife, mother as well as sister-in-law. It was therefore contended that the properties that stood in the name of the fourth defendant also belonged to the first defendant.

11. Insofar as the properties that stood in the name of Kanagaraj the deceased brother, it was the contention of the defendants that on his death they devolved on the third defendant Thangapappu and she is the absolute owner of the same. It was also the contention of the defendants that the mother Thangapappu had settled almost all the properties that stood in her name and the properties inherited by her from Kanagaraj except an extent of about 1 acre and 69 cents under two different Settlement Deeds which were marked as Exs.B32 and B33. Therefore, according to the defendants, the plaintiff is not entitled to any share in the properties that stood in the name of the defendants 1 to 4. The entitlement of the plaintiff to the ancestral properties situate in Ogalur Village was admitted.

12. On the above pleadings, the learned Trial Judge framed the following issues in the suit for partition:

(i)Whether the suit ‘A’ and ‘B’ Schedule properties are joint family properties;

(ii)Whether the suit properties belonged to defendant 1, 2 and 3 as their self-acquisitions;

(iii)Whether the suit ‘A’ and ‘B’ Schedule properties have not been properly described and whether items 19, 20, 25 and 30 of ‘A’ Schedule belonged to the Joint family;

(iv)Whether item 43 belongs to the first defendant or the joint family;

(v)Whether the Trust mentioned in suit ‘C’ Schedule is a family Trust or a Trust belonging to the first defendant;

(vi)Whether the plaintiff is entitled to partition, if so, in which property and what would be the share of the plaintiff;

(vii)Whether the plaintiff is entitled to a decree as prayed for;

(viii) Whether the plaintiff is entitled to future mesne profits;

(ix) To what relief the plaintiff is entitled to The following additional issue was framed on 01.11.2010.

(i) Whether the plaintiff is entitled to partition of the newly added properties.

OS No.1 of 2006:

13. This is the suit filed by the fourth defendant in OS No.2 of 2006 viz. the partition suit against the first defendant therein seeking permanent injunction restraining the defendant from interfering with their right to function as a Trustee of the family Trust viz. Thangam Periyasamy Educational Trust formed in the year 1996. The plaintiff would contend that the Trust was started by the joint family of the plaintiff’s husband and the first defendant in the year 1996. The properties of the Trust were purchased from and out of the income from the family properties and the plaintiff, the first defendant, Thangapappu/the mother of the first defendant and one Natarajan were made the Trustees. The husband of the plaintiff had filed a suit in OS No.256 of 1998 (OS No.2 of 2006) seeking partition of the properties and for framing a scheme for the Trust. Pending the said suit, the defendant filed a suit in OS No.346 of 1998 (OS No.3 of 2006) seeking an injunction restraining the plaintiff herself, her husband and her son from interfering with his functioning as a Managing Trustee of the said Trust. Claiming that as a Trustee she is entitled to participate in the affairs of the Trust, the plaintiff sought for the permanent injunction in the said suit. 

14. The said suit was resisted by the defendant contending that the plaintiff has nothing to do with the Trust and she has been removed from Trusteeship with effect from 29.06.1997 and therefore, she is not entitled to the reliefs sought for.

15. On the above pleadings, the learned Trial Judge framed the following issues in the said suit:

(i)Whether the plaintiff is entitled to the decree for permanent injunction sought for;

(ii)Whether the plaintiff can continue to function as a Trustee legally; and

(iii)To what relief the plaintiff is entitled to

OS No.3 of 2006:

16. This suit is a suit for permanent injunction filed by the first defendant in OS No.2 of 2006 seeking permanent injunction restraining the plaintiff, the fourth defendant in OS No.2 of 2006 and their son from interfering with his functioning as Managing Trustee of the Trust.

17. According to him, the Trust was created by him and he had parted with a sum of Rs.5,000/- the initial corpus fund for the Trust. The properties were purchased in his name from and out of his own income and out of respect as the elder brother’s wife, the fourth defendant in OS No.2 of 2006 was made a Trustee. He would further allege that the defendants are attempting to interfere with his possession of the Trust properties.

18. This suit was resisted by the defendants contending that the Trust is a family Trust, the properties were purchased from and out of the income from the family and therefore, the first defendant in OS No.2 of 2006 has exclusive right to administer the Trust. The alleged removal of the fourth defendant from Trusteeship is invalid.

19. On the above pleadings, the following issues were framed by the Trial Court: 

(i)Whether the plaintiff is entitled to the decree for permanent injunction sought for:

(ii)Whether the suit is maintainable;

(iii)Whether the suit property belongs to the plaintiff in the suit;

(iv)Whether the defendants are entitled to take part in the Management of the Trust;

(v)Whether there is cause of action for the suit; and

(vi)To what relief the plaintiff is entitled to

OS No.4 of 2006:

20. Yet another suit in OS No.4 of 2006 was filed by the first defendant, the second defendant and Rajaselvan son of the first defendant against the plaintiff, the fourth defendant and their son Selvakrishnan for declaration of their title to various properties which were purchased by then in their names and settled by the third defendant in the name of the first defendant and his son Rajaselvan.

21. The suit properties consist of three schedules, while according to the plaintiffs, the ‘A’ Schedule properties belonged to the first defendant, ‘B’ Schedule properties belonged to the second defendant and ‘C’ Schedule properties belonged to the son of the first and second defendants Rajaselvan. It will not be out of place to point out that the ‘C’ Schedule properties were the properties that were settled by the mother Thangapappu in favour of the son of the first defendant. 

22. This suit was resisted by the defendants therein, who are the plaintiff, the fourth defendant (in OS No.2 of 2006) and their son, contending that the suit properties were all joint family properties. The Settlement Deeds executed by the third defendant Thangapappu are not true and valid and they would not convey title to the settlees there under. It was also further contended that Thangapappu had no right to settle the properties in favour of the first defendant and his son, since they belonged to the joint family. As regards the properties that stood in the name of the first defendant and the second defendant, viz. ‘A’ and ‘B’ Schedule properties, it was contended that the properties belonged to the joint family and therefore, the plaintiffs are not entitled to a declaration.

23. On the above pleadings, the learned Trial Judge framed the following issues.

(i)Whether the suit ‘A’, ‘B’ and ‘C’ Schedule properties belonged to the first, second and third plaintiffs in the said suit respectively;

(ii)Whether the plaintiff and the first defendant are co-owners of the joint family properties;

(iii)Whether the gift Settlement Deed dated 30.01.2002 was acted upon and valid;

(iv)Whether the plaintiffs 1, 2 and 3 are entitled to declaration that they are the owners of the suit ‘A’, ‘B’ and ‘C’Schedule properties; and

(v)Whether the plaintiffs are entitled to permanent injunction as prayed for.

24. A Joint Memo was filed by the counsel for the parties and all the four suits were taken up together for trial. Evidence was recorded in OS No.2 of 2006 which is a comprehensive suit for partition.

25. At least 9 witnesses were examined on the side of the plaintiff and EXs. A1 to A30 were marked. Six witnesses were examined on the side of the defendants and 114 documents were marked. Seven documents were marked on the side of the witnesses and two documents were marked as Court documents.

26. The learned Trial Judge took up Issue Nos. 1, 2, 4 and additional issue in OS No. 2 of 2006 together and concluded that the suit properties were joint family properties, since they were acquired out of the income from ancestral properties as well as the family business. On the said conclusion, the learned Trial Judge held that the properties that stood in the name of the defendants 1 to 4 are joint family properties. 

The Trial Court accepted the plea of the plaintiff that since he was in Government service, no property was acquired in his name. It also accepted the plea that the business in liquor was carried on as a joint family business.

27. It also concluded that except Item Nos.11, 19 , 20 and 25 in the suit ‘A’ Schedule and all the other properties in ‘A’ and ‘B’ Schedules to the suit belonged to the joint family and they do not belonged to the first defendant as his self acquisition. On issue No.5, the Trial Court held that the Trust is a family Trust. Having found that the suit properties except Item Nos.11, 19, 20 and 25 in ‘A’ Schedule are joint family properties, it decreed the suit granting half share in the other properties in ‘A’ and ‘B’ Schedule to the plaintiff. It also held that the Trust is a family Trust and permitted the plaintiff to file a separate suit for framing a scheme for administration of the Trust. The question of future mesne profits was relegated to separate proceedings.

28. As regards the suit filed by the fourth defendant viz. OS No. 1 of 2006 seeking a permanent injunction, the learned Trial Judge held that since the Trust is a family Trust removal of the fourth defendant from trusteeship is invalid and therefore, she is entitled to an injunction decree. The counter suit in OS No.3 of 2006 was consequently dismissed. As far as the suit for declaration is concerned, the learned Trial Judge held that in view of the findings in OS No.2 of 2006, the suit in OS No.4 of 2006 is liable to be dismissed. Therefore, the suit in OS No.4 of 2006 came to be dismissed. Aggrieved the defendants have come up with the above Appeals.

29. AS No.452 of 2011 has been filed against OS No.2 of 2006, AS No.453 of 2011 has been filed against OS No.1 of 2006, AS Nos.454 and 455 of 2011 have been filed against OS Nos. 3 and 4 of 2006 respectively.

30. We have heard Mr.S.Parthasarathy, learned Senior Counsel appearing for Mr.S.William for the appellants in all the Appeals and Mrs.Hema Sampath, learned Senior Counsel appearing for Ms.R.Meenal for the respondents in all Appeals.

31. Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellants would vehemently contend that the Trial Court erred in concluding that the suit properties were purchased from and out of the income from the ancestral properties overlooking the fact that the extent of ancestral properties except a meager extent of 2 acres and 44 cents, the other properties were not income yielding properties, inasmuch as they are thrashing floor and a residential house. He would also point out that the plaintiff as P.W.1 had admitted that the first defendant started the business in liquor vending in the year 1982 and therefore, the business cannot be said to be a joint family business. If that be so, the properties that were purchased in the name of the defendants from and out of the income from the said business cannot be said to be joint family properties. He would also contend that there is no evidence to show that the so called joint family properties yielded a large income and there was considerable surplus left after defraying the expenses of the family and it was out of the said surplus, the properties were purchased in the name of other members of the family.

32. The learned Senior Counsel would also contend that a business started by a junior member of the family cannot be presumed to be a joint family business, unless there is very strong evidence to show that such business was started by the family and there was a depletion of the family properties are the income there from, as a result of the commencement of the business. According to the learned Senior Counsel, there is no nexus between the business started and the family income. The learned Senior Counsel would also contend that the properties that stand in the name of the female members cannot be presumed to be joint family properties, unless there is direct evidence to show such purchase.

33. In support of his contentions, the learned Senior Counsel would rely upon the following precedents:

1. S.Chinnayan & Others Vs. C.Chidambaram & Ors., reported in 1993 (6) MLJ 41;

2. K.Sengodan Vs. K.Dharmalingam & 5 Ors., reported in 1995 (2) LW 74:

3. Muniappa Naicker Vs.Balakrishna Naicker, reported in 1998 (2) LW 259;

4. D.S.Lakshmaiah & Anr. Vs. L.Balasubrmanyam & Anr., reported in 2003(10) SCC 310;

5. Marabasappa (died) by Lrs. & Ors. Ningappa (died) by LRs. & Ors., reported in 2011 (9) SCC 451;

6. G.K.Palanisamy, Prop. Sri Kathirvelu Finance Vs. Amudhaveni & Ors., reported in 2018 (2) MWN (Civil) 264;

7. V.Selvarani & Others Vs. V.Selvarani, reported in MANU/TN/4585/2023;

8. G.Narayana Raju Vs. G.Chamaraju, reported in AIR 1968 SC 1276;

9. Lakshmi Ammal Vs. Meenakshi Ammal & Ors., reported in AIR 1974 Madras 294;

10. G.Munuswamy Vs. G.Devarajulu, reported in MANU/TN/3566/2017;

11. Kiran Devi Vs.Bihar State Sunni Wakf Board & Ors., reported in 2021 (15) SCC 15;

12. Nagayasamy Naidu & Ors. Vs. Kochadai Naidu & Ors., reported in 1967 (Vol 81) LW 436;

13. C.K.Krishnan Vs. C.K.Shanmugham & Ors., reported in 1975 (2) MLJ 73;

14. Kandasamy Chettiar & Ors. Vs. Gopal Chettiar & Ors., reported in 1975 (2) MLJ 184;

15. Pattusamy Padyachi Vs. Mullaiammal & Ors., reported in 1976 (2) MLJ 225;

16. Kandasami & Anr., Vs. Adi Narayanan & Ors., reported in 1996 (4) MLJ 320;

17. Sadasivam & Anr. Vs. Sankar & Ors., reported in 2017 SCC Online Mad 1566; and

18. Mangathai Ammal (died) & Ors. Vs. Rajeswari & Ors., reported in 2020 (17) SCC 496.

34. Insofar as the properties that stood in the name of the third defendant and Kanagaraj, the learned Senior Counsel would contend that those properties have been settled on the first defendant and his son, who is the third plaintiff in OS No.4 of 2006, under two Settlement Deeds which have been marked as Exs. B32 and B33. He would also submit that the attestors to the said instruments have been examined as D.W.4 and D.W.6. He would therefore, contend that he had discharged the burden of proving the documents viz., the two Settlement Deeds. It is his further contention that the execution of those documents has not been specifically denied and therefore, the same should be presumed to have been proved in accordance with law. In support of his contention, the learned Senior Counsel would rely upon the following judgments.

1. Janaki Devi Vs. R.Vasanthi, reported in 2005 (1) CTC 11;

2. Prem Singh & Ors. Vs. Birbal & Ors., reported in 2006 (5) SCC 353;

3. Jamila Begum (Died) through LR Vs. Shami Mohd. (Died) through LR & Ors. reported in 2019 (2) SCC 727; and

4. Govindbhai Chhotabhai Patel & Ors. Vs. Patel Ramanbhai Mathurbhai, reported in 2020 (16) SCC 255.

35. Contending contra Mrs.Hema Sampath, learned Senior Counsel appearing for the respondents would submit that once the existence of ancestral properties is admitted and the fact that there was sufficient income from the properties, there arises a presumption regarding the nature of the properties in the hands of the members of the joint family. Therefore, according to the learned Senior Counsel, unless the contrary is proved the properties should be presumed to be joint family properties. She would further submit that the Trust was commenced by the family and that is the reason why, the wife of the plaintiff in OS No.2 of 2006, who figures as the fourth defendant in the said suit, was made a trustee.

36. It is also contended that the father of the parties Periyasamy Padayachi had sold an extent of 2.09 acres in Ogalur Village and has purchased certain properties in Kavanur and Kodumanur Villages. The Kodumanur properties were sold by all the parties to the uncle of the first defendant and the plaintiff, who also happens to be the father-in-law of the plaintiff in OS No.2 of 2006 only in the year 1996. Therefore, the income from the said properties should also be taken into account as income from the joint family properties and therefore, according to the learned Senior Counsel, all the properties are joint family properties and the Trust is also a Family Trust.

37. The learned Senior Counsel would rely upon the following judgments in support of her contentions:

1. Achuthan Nair Vs. Chinnammu Amma, reported in AIR 1966 SC 411;

2. P.R.Kannaiyan (died) and others Vs. Ramasamy Mandiri, reported in (2005) 4 CTC 457;

3. Mallesappa Bandeppa and another Vs. Desai Mallappa Alias Mallesappa and another, reported in AIR 1961 SC 1268;

4. Baikuntha Nath Paramanik (dead) by his LRs Vs. Sashi Bhusan Paramanik (dead) by his LRs., reported in (1973) 2 SCC 334.

38. The learned Senior Counsel would, drawing our attention to the evidence of D.Ws. 4 and 6, the attesting witnesses, contend that the Settlement Deeds viz. Exs. B32 and B33 have not been proved in accordance with law. She would also point out that the mother who had settled the properties on one of her sons and grandson had not assigned any reason for disinheriting the other son. She would also point out that the contradictions in the evidence of D.Ws.4 and 6 are so glaring that the documents cannot at all the said to have been proved. Our particular attention is drawn to the fact that the stamp papers for the documents were purchased almost 2 years prior to their execution and registration. Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellants would submit that the Settlement Deeds have been proved in accordance with law by examination of competent witnesses and the fact that they are registered instruments would lead to a presumption that they are valid.

39. We have considered the rival submissions.

The following points arise for determination:

(i)Whether the Trial Court was right in concluding that the properties that stood in the name of defendants 1 to 4 in OS No.2 of 2006 are joint family properties;

(ii) Whether the Trial Court is right in its conclusion that the Trust viz. the Thangam Periyasamy Educational Trust created under a Deed of Trust dated 26.12.1996 is a family Trust;

(iii)Whether the Settlement Deeds Exs.B32 and B33 have been proved in accordance with law;

(iv)Whether the plaintiff in OS No.2 of 2006 is entitled to a decree for partition;

(v) What would be the relief that the plaintiffs in the other suits are entitled to and

(vi) What will be the effect of the Benami Transactions (Prohibition) Act 1988, on the plea of the first defendant in OS No.2 of 2006 that the properties that stand in the name of the third defendant and fourth defendant were also purchased by him out of his own income

Point No.1:

40. At the outset, we must point out that it is settled position of Hindu Law that there is no presumption that properties possessed by members of the Joint Hindu Family or joint family properties. In case of properties standing in the name of the Manager of a Joint Hindu Family, there is a presumption that the properties are joint family properties, once the basic foundational fact viz. the fact that the acquisition was aided by income from the joint family properties or by a detriment to the joint family properties is established. As regards junior members and female members, there is no such presumption.

41. Adverting to the case on hand, there is evidence to show that the joint family was possessed of certain properties viz. an extent of 2.44 acres in Ogalur Village and an extent of about 3.37 acres in Kodumanur Village, which was purchased from and out of the sale proceeds of an extent of 2.09 acres in Ogalur Village. These properties could therefore be assumed to be joint family properties. The other properties have been purchased between the years 1984 and 1996 by the members of the family in their own names. Some of the properties have been purchased in the name of the wife of the plaintiff, who is the fourth defendant. It is of course pleaded by the first defendant that the properties that stood in the name of the fourth defendant were purchased out of his income, therefore they are his properties. We can straight away reject the said plea as the same would be hit by the Benami Transactions (Prohibition) Act 1988.

42. The Hon’ble Supreme Court in R.Rajagopal Reddy Vs. Padmini Chandrasekaran, reported in (1995) 2 MLJ 603, has held that the provisions of the Benami Transactions (Prohibition) Act 1988, would apply to suits filed or pleas in defence raised after 01.03.1998 viz. the date on which the Act came into force. We shall now examine the primary contention of the plaintiff that the properties mentioned in suit ‘A’ and ‘B’ Schedule are joint family properties. Admittedly, the properties stand in the name of the defendants 1 to 4 and Kanagaraj, except the first defendant and Kanagaraj, the other three are female members, Kanagaraj is a junior member. Of course the plaintiff would plead that the first defendant was in the position of a Manager, since the plaintiff, who is the eldest male member, was employed in Government service. The father of the plaintiff and the first defendant died in 1974 and it is the case of the plaintiff that the first defendant took over the entire affairs of the family from the date of the death of the father.

43. Before analyzing the evidence on record, we must point out that the law relating to joint family properties and the presumption that the property is joint, is fairly well settled. The Hon’ble Supreme Court and this Court have been repeatedly pointing out that unless it is proved that the family had sufficient properties which is normally referred to as the nucleus and the said nucleus is shown to be capable of generating a large income leaving a surplus in the hands of the family to enable it to acquire other properties, properties that stand in the name of individual members cannot be treated as joint family properties. In S.Chinnayan & Others Vs. C.Chidambaram & Ors., reported in 1993 (6) MLJ 41, a learned Single Judge of this Court (Hon’ble Mr.Justice Abdul Hadi) after referring to various judgments on the law relating to joint family properties held that unless there is pleading of existence of sufficient nucleus and sufficient income there from and proof of such nucleus and the income there from, there cannot be a presumption that the property that stands in the name of an individual member is joint family property.

44. In K.Sengodan Vs. K.Dharmalingam & 5 Ors., reported in 1995 (2) LW 74, a Division Bench had pointed out that the initial burden is on the person who asserts that the property belongs to an undivided Hindu family and only when that initial burden is discharged by the person who sets up such a claim, the other side can be called upon to prove the contrary. In doing so, the Division Bench had observed as follows:

“19. ....It can, however, not be denied that the initial burden is only on the one who contends that the property belongs to an undivided Hindu Family, and only where the initial burden is discharged by the one who is setting up such a claim, then the other side who contends to the contrary, be called upon to establish his case. The law on the subject has never been in doubt.”

45. In Muniappa Naicker Vs. Balakrishna Naicker, reported in 1998 (2) LW 259, Hon’ble Mr. Justice S.S.Subramani, had an occasion to deal with the said question. The learned Judge had traced the genesis of the law relating to joint family property in para 11 of the said judgment and the same read as follows:

 “11. In 'Dr. Paras Diwan - Hindu Law', First Edn. -1995, at page 209, the learned Authors have discussed about the concept of separate property thus:

“It appears that when the concept of communal property prevailed among Hindu communities, the question of self-acquisitions could not have arisen. When the communal system got transformed into the typical Hindu joint family, the members of the family, including coparcener, were allowed to have self-acquisitions.”

But, it seems, in the beginning he was given limited right over them. He was allowed to retain it during his lifetime.

In the second stage of development, he was allowed double share. In the last state of development he was allowed to retain it as his separate property having full rights over it. But basic postulates of all such acquisitions was that they were acquired without any detriment to the joint family property.

A text of Manu is explicit on the matter:

What one member acquires by his exertions without using paternal wealth, with acquisition of his own effort, he shall not share except by his own will.

Yajnavalkya laid down:

‘Whatever is acquired by the coparcener himself, without detriment to the father's estate, as a present from a friend, or a gift at nuptials, does not appertain to the co-heirs. Nor shall he who recovers hereditary property, which has been taken away, give it up to coparceners; nor what has been gained by science

Vijaneshwara's comment on this text are:

‘Consequently what is obtained from a friend as a return of an obligation conferred at the charge of the patrimony; what is received at marriage concluded in the Asura form or the like; what is recovered of the hereditary estate at the expenditure of the ancestral wealth; all must be shared with the whole of the brethren and the father. He need not give to the co-heirs what has been gained by him through science, by reading the scripture or by expounding their meaning.

The crux of the matter is that only those acquisitions would be self-acquisitions which are acquired "without detriment" to the joint family property. As a corollary, all acquisitions made by a coparcener with the aid of the joint family property or funds are part of the joint family property. In the modern Hindu Law, this is the well established proposition. But a difficulty often arises as to when we would say that acquisitions are without any detriment to the joint family property, and when we can say that they are to the detriment to the property. [Emphasis supplied]

Finally, at page 213 of the same book, the learned Authors have summarised the concept regarding ‘separate property’ as follows: —

“In our submission the following propositions would help us in the understanding of the law:

(a) The property acquired with self-exertion or labour will be separate property only when it is acquired without any detriment to the joint family property, that is, without any aid of joint family funds.

(b) Where in the acquisition of property by a member, there is a detriment to the joint family property, i.e., in its acquisition joint family property has been used, or there is joint family nucleus the property so acquired will be separate property.

(c) If the detriment to the joint family property is insignificant or the joint family property nucleus is nominal, then the property so acquired will be separate property.

(d) Whether or not mere is detriment to the joint family property would depend upon the facts and circumstances of each case.”

According to me, the above passage by the learned Authors is the summary of the law declared by the Privy Council, the Supreme Court and also our High Court.

46. The position in law was reiterated by the Hon’ble Supreme Court in D.S.Lakshmaiah & Anr. Vs. L.Balasubrmanyam & Anr., reported in 2003(10) SCC 310, where again the Hon’ble Supreme Court reiterated the need for evidence to show that the nucleus that existed was capable of yielding income and rendering a surplus to enable the family to acquire the property. The legal principle was set out in para 18 of the said judgment as follows:

“18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.” 

47. The very same position in law was reiterated by the Hon’ble Supreme Court in Marabasappa (died) by Lrs. & Ors. Ningappa (died) by LRs. & Ors., reported in 2011 (9) SCC 451, wherein again the Hon’ble Supreme Court pointed out that unless it is shown that there was sufficient surplus or there was detriment to the joint family property, the acquisitions by members in their own name cannot be treated as joint family property. One of us (R.Subramanian, J.) had an occasion to consider the very same question in G.K.Palanisamy, Prop. Sri Kathirvelu Finance Vs. Amudhaveni & Ors., reported in 2018 (2) MWN (Civil) 264, wherein after referring to D.S.Lakshmaiah & Anr. Vs. L.Balasubrmanyam & Anr., as well as Muniappa Naicker Vs.Balakrishna Naicker, referred to above, the essential requirements to enable the Court to invoke the presumption regarding joint family properties were set out in the paragraphs 20 and 21 as under:

20. It is contended that the suppression of the sale by Pongianna Gounder in favour of the first defendant by itself show that the case of the plaintiff is not bonafide. No doubt when it is established that there was a joint family and joint family had enough properties, the subsequent acquisition by the manager of the family in his name would be presumed to be joint family properties. In order to invoke the said presumption i) It should be initially established that there was joint family ii) The joint family was possessed of properties. iii) there was substantial income from the joint family properties. iv) there was substantial surplus after meeting the expenses of the joint family and it was that surplus that contributed to the purchase of property in the name of the manager.

21. Unless the plaintiff establishes the above 4 ingredients, the court cannot presume that the property standing in the name of the manager is a joint family property. The learned Senior Counsel for the respondents Mr.S.Jayaraman would rely upon observations of Hon'ble Supreme Court in D.S.Lakeshmaiah's case referred to supra, which are as follows.

'If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. '

48. In view of the above clear pronouncements of the Hon’ble Supreme Court as well as this Court, the initial burden is on the plaintiff to show that there was a sufficient nucleus which yielded very large income and it was from and out of the said surplus, the properties that stand in the name of the members of the family were acquired. In K.V.Ramasamy and another v. K.V.Rahgavan and others, reported in 2009 (4) CTC 440, after referring to various decisions of this Court as well as the Hon'ble Supreme Court, it was held as follows:

“a)The joint family nucleus must have left sufficient surplus income so as to enable acquisition.

b)Initially burden lies upon a 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.

c)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 personal property and the same has been acquired without any assistance from the joint family property.

d)Failure to prove existence of nucleus, the inevitable presumption is that the acquisition in question is nothing but self acquisition.

e)Mere fact of existence of a joint family does not lead to presumption that a property held by any of its member is joint family property unless the above aspect are proved.

f)If the property acquired is standing in the name of the female member of a joint family, she need not prove as to how she acquired it.”

49. As regards the contention that the family carried on liquor business, the law relating to business carried on by a member of the family is no longer res integra. In G.Narayana Raju Vs. G.Chamaraju, reported in AIR 1968 SC 1276, the Hon’ble Supreme Court held as follows:

“ 3. ....It is well established that there is no presumption under Hindu law that business standing in the name of any member of the joint family is a joint family business even if that member is the manager, of the joint family. Unless, it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate.”

50. Again in Lakshmi Ammal Vs. Meenakshi Ammal & Ors., reported in AIR 1974 Madras 294, a Division Bench of this Court reiterated the Law following the judgment of the Hon’ble Supreme Court in G.Narayana Raju Vs. G.Chamaraju. Reliance is also placed on by Mr.S.Parthasarathy, learned Senior Counsel on the judgment of one of us ( R.Subramanian.J) in G.Munuswamy Vs. G.Devarajulu, reported in MANU/TN/3566/2017, wherein also the said position of law relating to joint family business was followed.

51. We may have to examine the facts that have been placed before us in the light of the law that has been laid down by the Courts as stated supra.

52. As pointed by this Court in K.V.Ramasamy and another v. K.V.Raghavan and others, the initial burden is on the person who alleges the property is joint family property to show that there should be joint family nucleus and the nucleus was sufficient to yield surplus income and the properties were purchased using such surplus income. In case of businesses that stand in the name of a member, the member alleging that the business is a joint family business must prove that it was commenced with the joint family funds or that it was supported by the joint family income. If we are to examine the evidence on record, in the light of the Judicial pronouncements and the Principles of Law laid down, one can straight away conclude that the contention of the plaintiff that the family was possessed of very large extent of ancestral property and they yielded sufficient income to presume that the properties subsequently acquired or purchased were so acquired or purchased out of the said income has to fail for want of cogent and convincing evidence.

53. Admittedly, the extent of ancestral properties is only about 2 acres 44 cents, the rest of it is either natham land or kalam which is not capable of yielding income. No doubt, an extent of 2 acres 27 cents in Kodumanur Village was purchased from and out of the sale proceeds of an extent of 2 acres 9 cents of land in Ogalur Village, but the said land was never in possession of the family and it always in possession of the family of Velayudha Padayachi, who is the father-in-law of the plaintiff. This is demonstrated by the fact that all the parties had joined together and executed a mortgage deed to enable the son of Velayudha Padayachi to run a fish farm in the said property even in the year 1991and it was also shown that the said mortgage was discharged by Rajendran son of Velayudha Padayachi by virtue of Ex.B108.

54. The Adangal extracts for the lands at Kodumanur Village have been produced as Exs.B80 to B85 for the years 1986 to 1997 and they stand in the name of Rajendran, son of Velayudha Padayachi which would go long way to show that the Kodumanur properties was never in possession of the family. The Adangal extracts relating to other properties also do not show that there was a huge surplus income and that income aided the acquisition of the other properties. The evidence of the plaintiff as P.W.1 does not prove the existence of surplus income. In fact the sole witness P.W.5, who had spoken about the income, is a close relative of the plaintiff. Adverting to the business, it is the contention of the first defendant that he commenced the business in 1982 with a sum of Rs.10,000/- that was given to him by his father-in-law.

55. This is stoutly denied contending that the father-in-law of the first defendant was not a man of means and he had also launched insolvency proceedings to declare himself as an insolvent, however, no evidence of such insolvency proceedings have been placed before the Court. The particulars of the licenses obtained by the family in various names and the lease amounts paid thereon are evidenced by Ex.A30 i.e. for the period from 1984 - 1985 and the licenses were obtained in the name of Kangaraj, the first defendant and other relatives. This would go to show that the business that was commenced in 1982 had grown leaps and bounds and the first defendant had established several wine shops in and around Virudhachalam, and was earning a decent income there from. Unless it is shown that the business was established with the aid of the funds of the family, the business cannot be presumed to belong to the family.

56. It is in evidence that the business was carried on in the name of various individuals who are non-family members also. Therefore, we do not think that we can go to the extent of presuming that the entire liquor business carried on by the first defendant is the joint family business. We also find no proof to support the contention of the plaintiff in this regard. Of course some of the witnesses examined on the side of the plaintiff have spoken about the fact that licenses were taken in their names for running the business. That by itself would not cloth the business with ancestral or a joint family character. We are, therefore, unable to sustain the conclusions of the Trial Court with reference to the character of the properties. We find that the properties cannot be treated as joint family properties.

57. Therefore, Point No.1 is answered to the effect that the properties are not joint family properties except those properties which are admitted to be joint family properties i.e. an extent of 2 acres 44 cents in Item Nos.35, 36, 41 and 42 of ‘A’ Schedule alone. The other properties are not joint family properties.

Point No.2:

58. The Trust viz. the Thangam Periyasamy Educational Trust has been created by a Deed of Trust dated 26.12.1996. The said Deed is marked as Ex.A1. A perusal of it shows that it has been created by the first defendant in OS No.2 of 2006 and it does not appear from the Deed that it was intended to be a family Trust. No doubt, the members of the family viz. defendants 1, 2, 3 and 4 and one G.Natarajan, a third party have been made the first trustees. That by itself would not make a family Trust and provide an indefeasible right to the fourth defendant to continue as a trustee. While answering the first issue, we had concluded that the properties are not joint family properties, therefore, the claim of the plaintiff that the Trust was created by the family and the corpus fund was given by the family cannot be accepted.

59. We therefore conclude that the Trust is not a family Trust and it is a Trust created by the first defendant.

Point No.3:

60. The first defendant would claim title to the properties belonging to the third defendant Thangapappu and the deceased brother Kanagaraj under the Settlement Deeds dated 30.01.2002 marked as Exs.B32 and B33, said to have been executed by the third defendant in favour of himself and his son Rajaselvan, who is a third plaintiff in OS No.4 of 2006, which is a suit for declaration based on the two Settlement Deeds.

61. The learned Trial Judge had not gone into the validity of the Settlement Deeds, since he had concluded that the properties that stood in the name of Thangapappu are joint family properties and therefore, she was not entitled to effect a settlement of those properties. Now that we have concluded that the properties are not joint family properties, it becomes necessary for us to examine the validity of the said Settlement Deeds. No doubt, D.W.4 and D.W.6, who are the attestors to the documents, have been examined. A reading of their evidence creates a considerable doubt in our minds regarding the execution of the said documents.

62. Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellant would submit that the execution of the Settlement Deed has not been specifically denied and therefore, it was unnecessary for him to have examined the attestors. He would also point out that the documents being registered instruments, a certain presumption arises under Section 60(2) of the Registration Act regarding the happenings in the Office of the Registrar. As regards the execution of the Settlement Deeds, the pleading of the plaintiff in OS No.2 of 2006 as the defendant in OS No.4 of 2006 is as follows:

“9. With regard to the settlement alleged to have been executed by the mother, it is wholly invalid as the mother has no exclusive title to the properties. On the other hand, the properties are joint family properties of this defendant and the first plaintiff. The first plaintiff was able to win over the mother defrauded her and by the practice of fraud, has snatched a document styled as a settlement deed. The settlement deed dated 30.1.2002 is wholly invalid, not accepted and acted upon and not properly attested. This defendant denies the truth, validity and valid attestation of the said document. Mere transfer of a revenue record will not clothe the plaintiffs with title to the properties. The suit is highly speculative and the plaintiffs are not entitled to any reliefs. There cannot be any injunction in favour of one co-owner against the other.”

63. Considerable reliance is placed by the learned Senior Counsel on the judgment in Janaki Devi Vs. R.Vasanthi, reported in 2005 (1) CTC 11, wherein it was held that being a registered instrument, the endorsements made by the Registrar under Sections 52 and 58 of the Registration Act should be presumed to be true. While we are in agreement with the contentions of the learned Senior Counsel on the effect of Sections 52 and 58 of the Registration Act, we must also bear in mind, the special requirement under Section 68 of the Evidence Act. Section 68 of the Evidence Act requires a particular method of proof for a document which requires attestation namely, examination of at least one of the attestors. The evidence of the attesting witness assumes a great significance, since the standard of proof required to establish documents which disinherit some of the heirs is much higher. We therefore, do not think that merely because a document is registered, it has to be assumed to be properly executed.

64. Our attention is also drawn to the judgment in Jamila Begum (Died) through LR Vs. Shami Mohd. (Died) through LR & Ors. reported in 2019 (2) SCC 727, where the Hon’ble Supreme Court had held that Section 114 of the Evidence Act, could be invoked to presume that the Act of Registration has been properly done. This submission of the learned Senior Counsel overlooks the fact that registration and execution are two different things. Section 68 of the Evidence Act lays down a Special Rule for proof of documents required by law to be attested. Once the execution of the document is denied or is stated to be fraudulent, it is for the prepounder of the document to prove its execution as provided under law. Adverting to the evidence on record, we find that both the documents have been executed and registered on a same day i.e. 30-01-2002. Peculiarly, we find that the stamp papers for both the documents have been purchased on 22.2.2000 nearly 2 years prior to their execution. While D.W.4, who is an attesting witness to both the documents, has deposed in cross-examination that both the documents contained a recital to the effect that the properties subject matter of the settlement were purchased by Rajendran in the name of the settlor Thangapappu. The relevant portion of his Evidence reads as follows:

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He has also deposed that the stamp papers were purchased on the date of execution, the relevant portion of his evidence in this regard is as follows:

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65. As we had already pointed out the Settlement Deeds are written on stamp papers that were purchased on 22.02.2000. But the Settlement Deeds were executed on 30.01.2002. The evidence of D.W.4 an attesting witness is contrary to the actual facts. D.W.4 in his evidence would further depose that the third defendant Thangapappu is an illiterate lady. D.W.6 is the other attesting witness who has been examined to prove the Settlement Deeds. He has in his cross-examination deposed that Thangapappu, the third defendant, gave instructions for preparation of the document. He also deposed that the stamp papers for the documents were with Thangapappu. This contradiction in the evidence of D.W.4 and D.W.6 coupled with the fact that the documents have been written on the stamp papers purchased 2 years ago makes the very execution of those documents highly doubtful. Moreover, the documents do not contain a recital to the effect that the properties settled were purchased by Rajendran in the name of Thangapappu as deposed by D.W.4 in his cross-examination.

66. We are therefore of the opinion that it will be highly unsafe to uphold these documents. We, therefore, conclude that the execution of the Settlement Deeds Exs.B32 and B33 have not been proved in accordance with law.

Point No.4:

67. In the light of our findings above for Point Nos.1 and 3, we have to necessarily conclude that the plaintiff in OS No.2 of 2006 would be entitled to partition of the admitted ancestral properties viz. the suit Item Nos.35, 36, 41 and 42 and the properties that stand in the name of Thangapappu, the third defendant viz. Item Nos.6 to 10, 12 to 17, 32 to 34, 37, 38, and 44 and Item No.5 which stood in the name of Kanagaraj and devolved on Thangapappu on the death of Kanagaraj. In respect of the other items which stand in the name of defendants 1, 2 and 4, the plaintiff is not entitled to partition.

Point No.5:

68. In view of our findings rendered supra, the suit for declaration in OS No.4 of 2006 will stand dismissed, the suit for injunction in OS No.3 of 2006 which relates to the Trust will stand decreed, the suit for injunction in OS No.1 of 2006 filed by the fourth defendant in OS No.2 of 2006 for injunction restraining the defendants from interfering with the functioning as the Trustee of the Thangam Periyasamy Educational Trust will also stand dismissed.

Point No.6:

69. The first defendant in his written statement would plead that he had purchased the properties in the name of the third and fourth defendant out of his own funds. It is seen that the suit was initiated after coming into force of the Benami Transactions (Prohibition) Act, 1988. In view of the judgment of the Hon’ble Supreme Court in R.Rajagopal Reddy Vs. Padmini Chandrasekaran, reported in (1995) 2 MLJ 603, such a plea is not open to the first defendant. Therefore, the properties that stand in the name of the female members viz. the defendants 3 and 4 would be their exclusive properties. Since we have found that the properties are not joint family properties and they belonged to those in whose name they stand, we will have to necessarily reject the plea of the first defendant that the properties that stand in the name of the third defendant and the fourth defendant were purchased by him out of his own funds.

70. In fine,

(i) The Appeal in AS No.452 of 2011 is partly allowed granting a decree for partition of the suit Item Nos.5 to 17, 32 to 38, 41, 42 and 44, the suit in respect of the other properties will stand dismissed.

(ii) The Appeal in AS No.453 of 2011 will stand allowed and the suit in OS No.1 of 2006 will stand dismissed.

(iii) The Appeal in AS No.454 of 2011 will stand allowed and the suit in OS No.3 of 2006 filed by the Trust seeking an injunction against the plaintiff, the fourth defendant and their son Selvakrishnan will stand decreed in view of the fact that we have found that the Trust is not a family Trust and the first defendant being a Managing Trustee is entitled to a decree for injunction in the said suit.

(iv) The Appeal in AS No.455 of 2011 against the suit in OS No.4 of 2006, a suit for declaration filed by defendants 1, 2 and their son Rajaselvan will stand partly allowed and there will be a decree for declaration of title in favour of the first plaintiff therein viz. the first defendant in OS No.2 of 2006 with reference to Item Nos.1, 2, 3, 1 acre 33 cents in Item No.4, Item Nos. 5, 6, 7, 8 and 9 of ‘A’ Schedule properties and declaring the title of the second plaintiff to the ‘B’ Schedule properties. The suit in respect of the ‘C’ Schedule properties, an extent of 2.66 acres in Item No.4 of ‘A’Schedule properties and Item Nos. 10 to 16 of ‘A’ Schedule properties will stand dismissed. Considering the relationship between the parties, we are not imposing costs.

71. Consequently, the connected miscellaneous petitions are closed.