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Mere Joining Of Son In Execution Of Sale Deed Does Not Raise Presumption That Subject Property Is "Family Property": Madras High Court

Upasana Sajeev
19 May 2022 6:47 AM GMT
Mere Joining Of Son In Execution Of Sale Deed Does Not Create Any Right, Cannot Be Presumed That The Property Was Family Property: Madras HC

The Madras High Court bench of Justice N. Anand Venkatesh observed that merely because a son has been added as a co-vendor in a sale deed would not give rise to the presumption that the property being dealt with is a family property.

The court further held that the burden of proof to prove that the property was a joint family property or was purchased from the surplus income from the ancestral properties was upon the person claiming so. The same shall not be assumed per se and has to be pleaded and proved through evidence.


The appellant herein is the defendant in the original plaint. On his demise, his second wife and two children born thereunder were substituted as appellant. The respondent herein is the plaintiff in the original suit and the first wife of the appellant. Upon her demise, her daughters born through the appellant were impleaded as respondents.

The plaintiff sought for partition of the suit schedule properties and claimed half share to the property on the fact that the property was ancestral property and half the share shall go to the predeceased son of the plaintiff and the defendant. The plaintiff claimed half share to the property as the Class-I legal heir of the predeceased son.

The defendant, on the other hand, stated that the entire suit properties were his absolute properties and therefore the plaintiff was not entitled to any share in these properties.

The trial court on appreciation of the oral and documentary evidence found that the plaintiff had not established her case as to how the properties are joint family properties and thus the court rejected her claim and dismissed the suit.

The lower Appellate Court on the other hand rendered a finding that the properties were enjoyed in common. The court was of the opinion that the defendant had improved the case by filing an additional written statement. The lower Appellate Court was of the opinion that the defendant did not discharge his burden to prove that the suit properties are his exclusive properties. Hence, all suit properties were seen as joint family properties and the relief sought by the plaintiff was allowed.

The appellants mainly contended that the plaintiff never laid any foundational facts in her pleadings. Thus, no amount of evidence will come to the aid of the plaintiff without there being any pleadings.

The respondent pleaded that the two sale deeds – Exhibit A3 and A4 clearly established the fact that the properties were enjoyed as family property. A thing that is admitted need not be proved and that burden of proof was on the appellants.

Courts Observation

The court held that the observation of the lower appellate court that defendant had improved his case by additional written statement was wrong. The specific documents came into question only when the plaintiff was recalled and examined in chief. Thus, there was no occasion for the defendant to deal with these documents in the original written statement.

According to the court, the lower Appellate Court was also swayed by the fact that the son of the defendant joined as a joint vendor in the sale deeds.

The court observed that the mere existence of a joint family does not automatically lead to the presumption that the property held by any member of the family is joint. A property in the individual name of the co-owner will be presumed to be his individual property. The burden, then, is upon the plaintiff to establish that the property was purchased from the surplus income from the joint family nucleus. The court further held that "This is not a matter of assumption and it has to be necessarily pleaded and proved through evidence."

The court held that merely because the son of the defendant was added as a co-vendor, it will not give rise to the presumption that the properties dealt with therein are joint family properties. The court perused the parent document through which the defendant had originally acquired the suit property and found no evidence to indicate that the properties were ancestral.

The court agreed with the submission of the defendant that merely because a property is described as an ancestral property in the recitals of the document, that by itself is not a conclusive proof as to what is stated therein, more particularly when there are other materials to show that properties concerned are not ancestral properties. Reliance was placed on the judgment in Bhagwat Sharan v. Purushottam (2020), Pandian v. Madhanmohan (2018), Amudha and Others v. Janardhanan and others (2015) and other precedents where the courts have clearly laid down the law in this regard.

The court also opined that the plaintiff did not discharge her burden by proving that the suit properties are ancestral properties or that the properties were purchased from the surplus income yielded by the ancestral properties.

Hence, the court concluded that the findings of the lower Appellate Court were perverse due to improper appreciation of oral and documentary evidence and that the suit properties were the self-acquired properties of the deceased appellate. Considering that the 3rd and 4th appellants were the second wife and child of the defendant and the 2nd and 3rd respondents were the daughters of the defendant, the court held that each of them will be entitled to 1/4th share in the suit properties. The court held as under:

"This Court can always mould the relief by taking into consideration the subsequent events if it does not cause prejudice to the parties and there is no inconsistency while granting such a moulded relief."

The court further held that it was open for the parties to file an appropriate application for passing of the Final Decree and for division of the suit properties by metes and bounds.

Case Title: Ramasamy Gounder @ Senban (died) v. Chinnapillai @ Nallammal

Case No: SA No. 211 of 2015

Citation: 2022 LiveLaw (Mad) 217

Counsel for Appellants: Mr N. Manokaran

Counsel for Respondents: Mr V. Lakshminarayanan for Mr. M Guruprasad

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