Skip to content


Puthiamatathummal Peringadi Assankutti and ors. Vs. Peedikayilakath Mammad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1939Mad295; (1939)1MLJ308
AppellantPuthiamatathummal Peringadi Assankutti and ors.
RespondentPeedikayilakath Mammad and ors.
Cases ReferredLtd. v. Velayammal I.L.R.
Excerpt:
.....those moneys, but profits or property acquired therefrom for himself cannot be claimed as joint family property, though the member may be accountable to the family for the moneys so utilised. what is urged is that both in regard to the acquisition and in regard to the subsequent construction he was mixing tavazhi moneys with his own moneys and it was incumbent upon him to have maintained separate accounts so as to indicate without any possibility of doubt what moneys were utilised by him either for the acquisition or for the construction, and as he has failed to do so, it must be presumed that it was the tavazhi income that contributed to the purchase and the construction. haji and the finding of the learned district munsif on the evidence and the probabilities of the case is..........of pandikasala were tavazhi moneys, because k.t. haji as karnavan was having considerable family income in his hands. the learned district munsif on a consideration of the entire evidence and the probabilities of the case negatived the contentions of the first defendant, declared the property to be the separate property of k.t. haji and gave appropriate reliefs by way of possession and payment of rent to the plaintiffs 2 to 4. the learned district judge reversed this decision holding that the property must be deemed to be the tavazhi property.5. to say the least the judgment of the learned district judge is unsatisfactory. he purports to decide the case on certain assumptions of fact and on certain presumptions of law without reference to the actual facts proved or established.....
Judgment:

Venkataramana Rao, J.

1. The question for decision in this second appeal is whether the suit Pandikasala, that is, the warehouse, was the separate property of one Kunhi Tharuvayi Haji or the property of the first defendant's tavazhi. The site of the said warehouse together with certain buildings thereon were purchased on 15th January, 1922, by Poovantbankandi Hassankutti Company of which Kunhi Tharuvayi Haji was a partner. After the purchase, the firm also effected certain improvements. The firm closed its business in or about 1916. The accounts of the said business were looked into and a deed of dissolution was executed between the partners in or about January, 1920, as evidenced by Ex. K. Under the deed of dissolution the site of the warehouse and the buildings thereon were allotted to. the share of Kunhi Tharuvayi Haji. It was stated in the deed that a sum of Rs. 4,600 was due 'being the balance due to him after deducting the receipts and expenses from and out of the total sums due to him for his share of the profits and assets,' and there was a covenant by the partners to the following effect:

We have also authorised No. 2 (Kunhi Tharuvayi Haji) to hold possession of the said properties and to create alienations in respect thereof as he pleases.

2. Subsequent to the acquisition of this property, Kunhi Tharuvayi Haji demolished certain structures and built the suit Pandikasala at a cost of over Rs. 3,000. He appears to have been letting it and realising income therefrom. In 1929 he let it to the first plaintiff. In or about October, 1929, K.T. Haji died and disputes arose between his wife and children and the tavazhi in regard to the title to the property. On the 5th March, 1930, Abdulla the then karnavan sent a registered notice to the plaintiff claiming the property as tavazhi property. A similar notice was given by the wife and children claiming the property as the sole property of K.T. Haji to which they were entitled to succeed as his heirs. In consequence of the disputes thus raised the first plaintiff filed an interpleader suit on 19th December, 1932. The first defendant was impleaded as the karnavan of the tavazhi, Abdulla having died in the meanwhile, defendants 2, 3 and 4 being the sons and the fifth defendant being the wife of K.T. Haji. The second defendant died subsequent to the institution of the suit and his wife was added as the sixth defendant. Defendants 3, 4 and 5 we re subsequently transposed as supplemental plaintiffs 2 to 4 in the suit. Both the wife and children and the first defendant filed statements asserting their respective claims to the property. The said Tharuvayi Haji was karnavan of his tavazhi for several years up to the date of his death. It is conceded that while he was the karnavan he was allowed to carry on separate trade and have separate acquisitions. Similarly his brother Abdulla was allowed to do so. This fact was admitted in a family karar Ex. G dated 9th June, 1911, between the members of the family. On the date of the said karar, K.T. Haji was the karnavan. He was party No. 1 to the deed and his brother Abdulla, party No. 2. In regard to the firm of Assankutti Company, wherein K.T. Haji was a partner, there occurs the following recital:

The assets that may be found as due to No. 1 in respect of the partnership trade carried on by No. 1 under name of Kelluvalappil Assankutti Haji and Company and in respect of the trade carried on by him under the name of Mukkathumprath Poovathankutty Assankutti Company from the self-acquisition of No. 1...As regards the property and assets belonging to No. 1 as his own as mentioned above, No. 1 has executed a will bequeathing the said property and assets to be enjoyed by his wife and children after his death.

3. A similar recital was made in regard to No. 2. Abdulla to the effect that he was carrying on a partnership business with one Mammad Kutti Haji and that the assets of that trade form his self-acquisition and that he could deal with them as he pleased. The will referred to is Ex. H dated 9th June, 1911, wherein K.T. Haji has stated that the partnership trade carried on by him is his own and he has stipulated that all the assets, goods and properties which will pertain to his share would go to his wife and children after his death. It is thus clear that the family recognised the assets of the individual trade carried on by both K.T. Haji and Abdulla as their own and the acquisitions made therefrom were the properties wherein the tavazhi had no concern. It is also admitted that even after the dissolution of the said Assankutti Company, K.T. Haji up to the date of his death was carrying on independent trade and having separate moneys of his own and the family claimed no sort of concern or interest therein. In his deposition the first defendant makes the following admission:

The trades which K.T. Haji had in partnership in Assan Company and other companies were his own. None of the trades in which he had interest was tavazhi trade. We were not taking part in that trade.

4. The main ground on which the first defendant claimed the property for the tavazhi was that though the trade carried on by Assankutti Company was a trade in which the tavazhi had no interest, still a greater portion of the money, namely, a sum of Rs. 3,600 was tavazhi money and therefore the acquisition itself by K.T. Haji was for the tavazhi and also the moneys expended for the re-building and the construction of Pandikasala were tavazhi moneys, because K.T. Haji as karnavan was having considerable family income in his hands. The learned District Munsif on a consideration of the entire evidence and the probabilities of the case negatived the contentions of the first defendant, declared the property to be the separate property of K.T. Haji and gave appropriate reliefs by way of possession and payment of rent to the plaintiffs 2 to 4. The learned District Judge reversed this decision holding that the property must be deemed to be the tavazhi property.

5. To say the least the judgment of the learned District Judge is unsatisfactory. He purports to decide the case on certain assumptions of fact and on certain presumptions of law without reference to the actual facts proved or established in the case. In paragraph 8 he observes thus:

It is true that he (K.T. Haji) was a partner in the firm in his personal capacity and not as karnavan of the tavazhi. But Ex. K shows that as such partner he was entitled only to Rs. 1,112 for his share of the partnership. But the amount shown as due to him from the firm was Rs. 4,6C0. The balance was obviously money due to the tavazhi.

6. It has been frankly conceded by Mr. Thiagarajan that Ex. K does not support this statement and therefore there is no warrant for this assumption of the learned Judge. Again, the learned District Judge observes thus:

The appellant's first contention is that a major portion of the sum of Rs. 4,600 found due to K.T. Haji from the firm was tavazhi money and hence the site of the plaint warehouse and the structures thereon, which were allotted to him under the deed of dissolution, should belong to the tavazhi. The account books of the firm (Exs. VII to XVI) bear out this contention.

7. This assumption also is wrong. There is absolutely no document to show how this sum of Rs. 4,600 was arrived at. Exs. VII to XVI do not all relate to the books of Assankutti Company; only Exs. VII to XIII relate to the said company. But even the said books are not complete. It does not appear from those books nor from any books produced by the first defendant that a sum of Rs. 3,600 out of Rs. 4,600 represented tavazhi money. So far as regards assumptions of fact.

8. Coming now to presumptions of law, the learned District Judge observes thus:

After the dissolution, as is seen from Ex. O, K.T. Haji spent about Rs. 3,810 for the construction of the plaint warehouse. The question is whether this amount represents tavazhi money or his private funds. It is admitted now that K.T. Haji had large private funds and was able to command the money required for the construction of the warehouse. But it is also admitted that he was the karnavan of the tavazhi and that he was in possession of tavazhi money...In this state of the evidence, the necessary legal presumption is that the plaint property is prima facie a tavazhi asset. The presumption is liable to be rebutted by the production of evidence to show that the deceased in fact utilized only his private funds for the construction of the building...They (defendants 2 to 4) having failed to establish that the private funds of the deceased were utilised for the construction, the ordinary presumption must prevail, and it must be held that the plaint building was constructed with tavazhi funds.

9. The learned District Judge has misdirected himself to the presumptions of law which should govern this case. There is no presumption that when a family is joint, it possesses any-joint property or that all the property possessed by it is joint property. When a property stands in the name or is in the possession of a member of a family, it is incumbent upon those who assert that it is joint family property to establish it. Where it is proved or admitted that a family possesses sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of that nucleus. Whether the presumption should be raised and the burden of proof should be shifted at all and what weight should be given to the said presumption depend on the facts and circumstances of each case. The presumption aforesaid is one which the law raises where nothing is known except the bare fact of a nucleus and the acquisition. But there are cases where the presumption is not allowed to be raised. For example, in Bengal Insurance and Real Property Co., Ltd. v. Velayammal I.L.R. (1937) Mad. 990 the question was whether the money due under a Life Insurance Policy belonged to the member who insured it or to the joint family and the contention raised on behalf of the joint family was he had enough joint family money in his hands wherewith he could have paid the premia. It was held in that case that as he had also money available from private sources to enable him to pay the premia, the presumption is that the assured paid the premia out of his own money and it was his separate property. Where again with the consent of the members of the family an individual member including a manager is allowed to have separate trade and acquire properties, the presumption ought to be that the property acquired in the name of the individual member is separate property even though he might have moneys of the joint family in his hands. It is not enough to show that he had family money in his hands wherewith the acquisition might have been made. It is not even enough to show that the family moneys were utilised in the business. When members of a family allow a manager or an individual member to acquire property separately with full knowledge that he has joint family moneys in his hands, it may well be that the family allowed him to use those moneys, but profits or property acquired therefrom for himself cannot be claimed as joint family property, though the member may be accountable to the family for the moneys so utilised. Such moneys would be in fact advances or loans made by the members of the family to the individual member or the manager. In this case the individual members including every successive manager were allowed to carry on their own trade. The first defendant admits that he is carrying on his own trade.

10. So far as the original acquisition is concerned, namely, the acquisition of the site on which the Pandikasala was built, it was out of partnership funds and therefore it was partnership property. But the contention urged is that the acquisition under the deed of dissolution by K.T. Haji must be deemed to be the family property. Ex. K itself is against this contention. The property was allotted to K.T. Haji as his share of profits and assets. Prima facie therefore it would be his individual property. Further the clause which states that K.T. Haji can hold possession and create alienations in respect thereof as he pleases seems unmistakeably to indicate that he took it as his own property and not on behalf of the family. But it is urged that a considerable portion of the sum out of Rs. 4,600 for which the property was allotted represented tavazhi money and therefore it must be presumed that he intended to take the property for the tavazhi. As I have already stated, there is no warrant for this assumption and I think the learned District Munsif was correct in stating that the contention is not supported by any positive evidence and does not deserve any consideration. What is urged is that both in regard to the acquisition and in regard to the subsequent construction he was mixing tavazhi moneys with his own moneys and it was incumbent upon him to have maintained separate accounts so as to indicate without any possibility of doubt what moneys were utilised by him either for the acquisition or for the construction, and as he has failed to do so, it must be presumed that it was the tavazhi income that contributed to the purchase and the construction. It will be seen that so far as the tavazhi books are concerned, they were not produced by the first defendant. The learned District Munsif says that so far as the account books for the relevant period are concerned, they must have come into the possession of the next karnavan Abdulla. The income and the expenses of the tavazhi would find a place in those accounts. From the suppression of the said accounts by the first defendant in view of the admissions made by him that the concerns in which K.T. Haji was engaged are his own, the Court is entitled to draw the inference that the contention now put forward by him is not true. The learned District Judge curiously enough would make no reference to the non-production by the first defendant of tavazhi books for the relevant period. So far as the account books relating to private earnings maintained by K.T. Haji himself are concerned, all the relevant books are not produced. But if the books separately maintained by K.T. Haji in respect of his private earnings were the only books on which reliance could be placed, there may be considerable force in the observation of the learned District Judge that from the suppression of those books an adverse inference can be drawn against the case of the plaintiffs. But where the material books are the books of the tavazhi and they have not been produced, I think no inference adverse to the plaintiffs can be drawn. Again, all the relevant books of Assankutti Company are not available and it is not possible to know with whom the said books are, because so far as the collection of debts or outstandings and payment of debts are concerned, it was left to one of the partners of the firm of Poovathankandi Hassan Kutti. Therefore, from the accounts produced on either side it is not possible to state whether there was any net income from the tavazhi available from which a presumption can be drawn that the suit property could have been acquired and built from those funds, even assuming that such a presumption can be drawn. I shall assume that it is not possible to say whether the first defendant is in possession of the tavazhi books or not and what the deceased K.T. Haji did with them it is not possible to predicate. But still the first defendant could have let in evidence to show what exactly was the income realised from the tavazhi property, what were the outgoings therefrom, that is, repairs, taxes, etc., and what were the expenses for the maintenance of the family and what was the net income available. No attempt has been made by the first defendant with regard to that excepting by way of his oral statement that the family gets Rs. 2,500. But a perusal of his evidence shows that his statement that the tavazhi had an income of Rs. 2,500 cannot be accepted as correct. He says:

I am keeping accounts. It will show that the tavazhi has an income of Rs. 2,500. I cannot say exactly what revenue is payable or jenmi's rent or income-tax. I cannot say what will be the expenses in connection with the properties. I have debts on account of my trade. After I became a karnavan there was a decree to the extent of Rs. 800 against the tavazhi.

11. If the family had a net income of Rs. 2,500 as he says, it not possible to understand why he allowed a decree to be passed against the tavazhi for Rs. 800. At any rate, it was incumbent upon him to establish by evidence which was certainly available to him what the net income of the family was and what could have been the income available in the hands of K.T. Haji. In the absence of such proof and in the face of the admission that K.T. Haji had large private funds of his own acquired in independent trades, the inference seems to be irresistible that the property in the circumstances of this case is the separate property of K.T. Haji and the finding of the learned District Munsif on the evidence and the probabilities of the case is perfectly sound.

12. It is urged again by Mr. Thayagarajan that the deceased K.T. Haji mixed his private income with the tavazhi income and the presumption raised by the learned District Judge that he intended to utilise his private funds for the tavazhi and the acquisition must be deemed to be on behalf of the tavazhi, is correct. But a mere mixture of itself would not effect a blending so long as accounts are kept. In this case accounts were kept. If the tavazhi books for the relevant period had been produced, what the family income and expenditure were could have been ascertained. The books produced by the plaintiffs show that he was noting therein both his private expenditure and family expenditure. So no presumption of blending can be raised in this case.

13. Mr. Govinda Menon does not controvert the position that K.T. Haji was accountable to the family for any moneys retained by him during the course of his management and if it is shown that any portion of the moneys went towards the purchase or the reconstruction of the suit property, the tavazhi might have a claim against the assets of K.T. Haji in the hands of plaintiffs 2 to 4 and the fifth defendant. I do not propose to go into those questions because all the evidence is not available before me on which to pronounce an opinion. It is open to the tavazhi, if they can, to prefer any claim they may have against the legal representatives of K.T. Haji.

14. I therefore allow the second appeal, set aside the decree of the learned District Judge and restore that of the learned District Munsif, but, as plaintiffs2 to 4 were alsoat fault in not producing all the account books in their possession or in not sufficiently accounting for their non-production, I direct both the parties to bear their own costs of suit. But the first defendant will pay Rs. 21-8-9, the costs directed to be paid to the first plaintiff by the learned District Munsif.

15. Leave to appeal refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //