Chinthamani Ammal Vs. Nandagopal Gounder and Anr  Insc 158 (20 February 2007)
S.B. Sinha & Markandey Katju
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
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 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
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
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.
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
[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:
"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
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)
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.
The area in which the question lies in the 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.
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.