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CASE NO.: Appeal (civil)  6198 of 2000

PETITIONER: Chinthamani Ammal

RESPONDENT: Nandagopal Gounder and Anr

DATE OF JUDGMENT: 20/02/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G E M E N T

S.B. SINHA,J.

       This appeal is directed against a judgment and decree dated  31.07.1998 passed by a learned Single Judge of the High Court of Judicature  at Madras in Second Appeal No. 1899 of 1985 whereby and whereunder an  appeal under Section 100 of the Code of Civil Procedure preferred by the  respondents herein from a judgment and decree dated 11.09.1985 passed by  the Subordinate Judge, Arni, North Arcot District in Appeal Suit No. 68 of  1984 was allowed, in turn, allowing an appeal from a judgment and decree  dated 27.07.1984 passed by the Court of the Principal District Munsif, Arni  in Original Suit No. 1301 of 1979.  

       Plaintiffs in the suit are the respondents before us.  The said suit was  filed for declaration and injunction against the appellant herein.

       Kesava Gounder and Respondent No. 1 were brothers.  They  admittedly were members of a joint family.  Kesava Gounder was suffering  from small pox.  He died in 1943.  Immediately prior to his death, he  allegedly expressed his intention to severe his status as a member of the joint  family.

       The wife of the said Kesava Gounder (mother of the appellant herein)  and the appellant were admittedly looked after by the respondents.   However, the mother of the appellant left the family in or about 1945 and  married another person.  Appellant was not only brought up by Respondent  No. 1, she was also given in marriage.  She allegedly claimed a share in the  property.  Possession of the respondents was sought to be disturbed.   Respondents filed a suit for declaration and injunction against her in the  Court of Munsif.  The principal issue which arose for consideration in the  said suit was as to whether the said Kesava Gounder had expressed his  intention to separate as a result whereof the joint family severed although no  partition by meets and bounds took place.

       The contention of the respondents was that the property being a joint  family property on the death of Kesava Gounder in 1943, they succeeded  thereto by survivorship and had been enjoying the same ever since and only  at a much later date the appellant made an attempt to disturb their  possession.

       Appellant’s husband had also filed a suit  claiming a leasehold right in  the said property.

       Both the suits were heard together.    The Trial Court by its judgment  and order dated 27.07.1984 opined that the said Kesava Gounder died in the  year 1943 as a member of undivided joint family and, thus, the appellant had  derived no right, title and interest in the said property by succession or  otherwise.  An appeal preferred thereagainst by the appellant, however, was

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allowed by the Subordinate Judge holding that the father of the appellant  died as a divided member of the joint family as a result whereof she became  entitled to claim half share.  The second appeal preferred by the respondents  herein from the said judgment and decree passed by the first appellate court  has been allowed by reason of the impugned judgment.          Mr. B. Sridhar, learned counsel appearing in support of the appellant,  would submit that although the appellant at the time of her father’s death  was only three years old, the factum of separation was proved by DW-2 - her  aunt, who in her deposition stated:

"The father of this defendant while he was unwell  became divided in status.  At that prevailing  situation out and out partition was not possible.   The first plaintiff gave his word to take care of this  defendant and her mother."

       The learned counsel would contend that in view of the decision of this  Court in A. Raghavamma and another v. A. Chenchamma and another [AIR  1964 SC 136], the father of the appellant and Respondent No. 1 herein  having separated themselves, she succeeded to the share of her father.    

       The learned counsel appearing on behalf of the respondents, on the  other hand, would support the judgment.   

       Although, before us, the appellant has made a claim of deriving right,  title and interest by way of succession to the interest of late Kesava  Gounder, in the written statement filed by her before the learned Trial Judge,  only a limited right was claimed, which, allegedly, culminated into an  absolute title in terms of Section 14(1) of the Hindu Succession Act, 1956.    The High Court in its judgment held that the property in suit being  agricultural property, the Hindu Women’s Right to Property Act, 1937 being  not applicable in relation thereto in the year 1943, the mother of the  appellant or for that matter, she herself could not have succeeded to her  father’s interest in the property which was a joint family property.  It was  further held that the plea that the said Kesava Gounder died as a divided  member was put forth 36 years after his death, was wholly improbable.

       The legal position that the appellant herein could not claim any right,  title and interest whether in terms of the provisions of the Hindu Women’s   Right to Property Act, 1937 or as a successor of the said Kesava Gounder, if  the joint status was not severed, is not in dispute.    The Hindu Women’s  Right to Property Act was not applicable in relation to agricultural land.  The  State of Madras made an amendment in that behalf in the year 1947  whereafter, only a widow became entitled to claim limited ownership in the  share of her husband.   The mother of the appellant i.e. wife of the said  Kesava Gounder, thus, did not derive any right, title and interest in the  property of her husband in the year 1943, when he expired.  Furthermore,  admittedly, she left the family and married another person in the year 1945  and thus the question of her deriving any benefit in terms of the 1947  amendment also did not arise.         Before the learned Trial Judge, the parties adduced their respective  evidences.  The learned Trial Judge had an occasion to look to the  demeanour of the witnesses.  He came to the conclusion that the properties  in suit had all along been held as a joint family property opining that the  father of the appellant did not have any divided status as alleged or at all.

         The first Appellate Court reversed the said finding relying only on or  on the basis of the statement made by DW-2 - the aunt of the appellant  which has been noticed by us hereinbefore.   The said statement by itself  does not prove that the said Kesava Gounder made an unequivocal  declaration that he intended to separate himself from his brother or the same  was duly communicated to the other co-sharers.   DW-2 did not say when  such a declaration was made in presence of all coparceners.   It was not  stated that at the time of making such purported declaration, the respondents  were present.

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       If such a declaration had been made and the respondents herein  accepted the same, ordinarily, not only the respondents would be asked to  divide the property by partition by meets and bounds but also to look after  the said property which fell in the share of the appellant.  Allegedly,  Respondent No. 1 was requested to look after his family and not their  property.  The property, admittedly, continued to be possessed as a joint  property.   It was never partitioned by meets and bounds.  Appellant never  paid any rent separately.  No revenue record was prepared in her name.

       Even the husband of the appellant claimed the property as a lessee.   When the properties continued to be possessed jointly by the owners thereof,  a presumption in regard to the status of joint family both backward and  forward must be raised as no evidence was brought on records to establish  unequivocal  declaration on the part of Kesava Gounder to separate himself  from the joint family.  If having regard to the nature of oral evidences  adduced before it, the learned Trial Judge came to the conclusion that the  appellant had failed to prove her case, the first Appellate Court, in our  opinion, as has rightly been held by the High Court, could not have reversed  the said finding without assigning sufficient and cogent reason therefor.

       In law there exists a presumption in regard to the continuance of a  joint family.   The party who raises a plea of partition is to prove the same.    Even separate possession of portion of the property by the co-sharers itself  would not lead to a presumption of partition.  Several other factors are  required to be considered therefor.                  Furthermore, when the learned Trial Judge arrived at a finding on the  basis of appreciation of oral evidence, the first Appellate Court could have  reversed the same only on assigning sufficient reasons therefor.  Save and  except the said statement of DW-2, the learned Judge did not consider any  other materials brought on records by the parties.            In Mandholal v. Official Assistance of Bombay [AIR 1950 Federal  Court 21], it was observed:

"It is true that a Judge of first instance can never  be treated as infalliable in determining on which  side the truth lies and like other tribunals he may  go wrong on question of fact but on such matters if  the evidence as a whole can reasonably be  regarded as justifying the conclusion arrived at, the  appeal court should not lightly interfere with the  judgment."

[See also Madhusudan Das v. Narayanibai - AIR 1983 SC 114 : (1983) 1  SCC 35],  

       In Smt. Rajbir Kaur and Another v. S. Chokesiri and Co. [(1989) 1  SCC 19], this Court observed: "48. Reference on the point could also usefully be  made to A.L. Goodharts article in which, the  learned author points out : "A judge sitting without a jury must perform dual  function. The first function consists in the  establishment of the particular facts. This may be  described as the perceptive function. It is what you  actually perceive by the five senses. It is a datum  of experience as distinct from a conclusion. It is obvious that, in almost all cases tried by a  judge without a jury, an appellate court, which has  not had an opportunity of seeing the witnesses,  must accept his conclusions of fact because it  cannot tell on what grounds he reached them and  what impression the various witnesses made on

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him."(emphasis supplied) 49. The following is the statement of the same  principle in "The Supreme Court Practice: "             Great weight is due to the decision of a judge of  first instance whenever, in a conflict of testimony,  the demeanour and manner of witnesses who have  been seen and heard by him are material elements  in the consideration of the truthfulness of these  statements. But the parties to the cause are  nevertheless entitled as well on questions of fact as  on questions of law to demand the decision of the  Court of Appeal, and that court cannot excuse  itself from the task of weighing conflicting  evidence, and drawing its own conclusions, though  it should always bear in mind that it has neither  seen nor heard the witnesses and should make due  allowance in this respect.(pp. 854-55)  ... Not to have seen witnesses puts appellate judges  in a permanent position of disadvantage against the  trial judge, and unless it can be shown that he has  failed to use or has palpably misused his advantage  for example has failed to observe inconsistencies  or indisputable fact or material probabilities [ibid.  and Yuill (1945) p. 15; Watt v. Thomas] the higher  court ought not take the responsibility of reversing  conclusions so arrived at merely as the result of  their own comparisons and criticisms of the  witnesses, and of their view of the probabilities of  the case. ... (p. 855) ... But while the Court of Appeal is always  reluctant to reject a finding by a judge of the  specific or primary facts deposed to by the  witnesses, especially when the finding is based on  the credibility or bearing of a witness, it is willing  to form an independent opinion upon the proper  inference to be drawn from it.... (p. 855) 50. A consideration of this aspect would be  incomplete without a reference to the observations  of B.K. Mukherjea, J., in Sarju Pershad Ramdeo  Sahu v. Raja Jwaleshwari Pratap Narain Singh  which as a succinct statement of the rule, cannot  indeed be bettered : "The question for our consideration is undoubtedly  one of fact, the decision of which depends upon  the appreciation of the oral evidence adduced in  the case. In such cases, the appellate court has got  to bear in mind that it has not the advantage which  the trial Judge had in having the witnesses before  him and of observing the manner in which they  deposed in court. This certainly does not mean that  when an appeal lies on facts, the appellate court is  not competent to reverse a finding of fact arrived  at by the trial Judge. The rule is and it is nothing  more than a rule of practice that when there is  conflict of oral evidence of the parties on any  matter in issue and the decision hinges upon the  credibility of the witnesses, then unless there is  some special feature about the evidence of a  particular witness which has escaped the trial  Judges notice or there is a sufficient balance of  improbability to displace his opinion as to where  the credibility lies, the appellate court should not  interfere with the finding of the trial Judge on a  question of fact. 51. The area in which the question lies in the

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present case is the area of the perceptive functions  of the trial Judge where the possibility of errors of  inference does not play a significant role. The  question whether the statement of the witnesses in  regard to what was amenable to perception by  sensual experience as to what they saw and heard  is acceptable or not is the area in which the well- known limitation on the powers of the appellate  court to reappreciate the evidence falls. The  appellate court, if it seeks to reverse those findings  of fact, must give cogent reasons to demonstrate  how the trial court fell into an obvious error.  52. With respect to the High Court, we think, that,  what the High Court did was what perhaps even an  appellate court, with full fledged appellate  jurisdiction would, in the circumstances of the  present case, have felt compelled to abstain from  and reluctant to do. Contention (c) would also  require to be upheld."

       In Jagannath v. Arulappa and Another [(2005) 12 SCC 303], this  Court while considering the scope of Section 96 of the Code of Civil  Procedure opined that it would be wholly improper to allow first appeal  without adverting to the specific findings of the Trial Court.

       In H.K.N. Swami v. Irshad Basith (Dead) By LRs. [(2005) 10 SCC  243], this Court opined that the appellate court is required to address all the  issues and determine the appeal upon assignment of cogent reasons.         In this view of the matter, it is not necessary for us to consider the  submission of Mr. Sridhar in regard to the effect of the severance of the joint  status, as adumbrated by this Court in A. Raghavamma (supra).

       For the reasons aforementioned, there is no merit in this appeal, which  is accordingly dismissed.  However, in the facts and circumstances of this  case, there shall be no order as to costs.