Decided on June 16,1967



- (1.) I think this appeal should have been brought under Order XLIII R.1(u) of the Code and not, as it purports to have been brought, under S.100. That, however, is of no practical significance since no different considerations would arise if I were to treat this as brought under what I consider the proper provision.
(2.) The only question is whether the properties now in dispute, namely, those in Schedule C to the plaint, acquired in the name of the 1st defendant when he - was a junior member of the family, are the properties of the joint family comprised of the plaintiffs and the defendants. The parties are Makkathayee Hindus (Unnis) to whom, in the absence of any special custom or statute governing the matter and none is alleged the ordinary rules of Hindu law apply. That being so the ordinary rule that once a sufficient joint family nucleus is established, properties acquired in the name of any member, be he the manager or only a junior member, will be presumed to have been acquired with joint family funds and therefore to be joint family property unless the contrary is shown, applies to this case. (See A. Nair v. C. Amma AIR 1966 SC 411 ). The parties and the courts below, however, mistakenly thought that, as in the case of marumakkattayee joint families, the presumption would be available only if the acquirer was the manager and not if he was only a junior member and the entire battle was fought in the courts below on whether, at the time of the acquisitions the 1st defendant was the de facto manager of the family as alleged by the plaintiffs. The first court finding that he was not, held that the properties were not joint family properties; the lower appellate court finding the contrary has remanded the case to the first court for fresh decision after finding whether there was a sufficient joint family nucleus, a question to which neither that court nor the parties had adverted. Now, as I have already shown, that question would arise whether or not the 1st defendant was the manager when the acquisitions were made, and, therefore, the lower appellate court was right in raising that question, whether its finding on the question of the 1st defendant's managership was right or wrong. Ordinarily, I would have expected it to decide the question itself and finally determine the suit as it can do under Order XLI R.24 of the Code, but, since the question is not one to which the parties gave any thought, it would appear that the evidence on record is not sufficient for a proper decision. Therefore, I uphold the order of remand but make clear what the lower appellate court has not done, namely, that both sides will be at liberty to adduce fresh evidence.
(3.) The order of the lower appellate court is capable of being read as if the existence of a sufficient joint family nucleus would conclude the case in favour of the plaintiffs. That, of course, is not so. It would only raise a presumption that the properties are joint family properties and it would be open to the 1st defendant to rebut the presumption by showing that they are his self acquisitions.;

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