C.V. Karthikeyan J.

1. The plaintiff in O.S.No.148 of 2010 aggrieved by the denial of share in the 4th item of the suit schedule property by judgment dated 25.04.2014 by the Principal District Court at Erode, had filed the present appeal.

2. The plaintiff was a minor at the time institution of the suit and at the time of filing of the appeal.

3. A memo had now been filed on behalf of the plaintiff / now appellant that he had attained the age of majority. The memo stands recorded.

4. The Registry before issuing the order copy may make necessary amendment in the cause title reflecting that the appellant is a major and deleting his mother as representing him as guardian.

5. The counsel had also filed vakalat on behalf of the appellant.

6. The suit had been filed by the plaintiff against his father / 1st defendant, his paternal grandmother / 2nd defendant and his two paternal aunts / the 3rd and 4th defendants and two others seeking partition and separate possession of the suit schedule properties and claiming an undivided 4/60th share in each one of them.

7. The appeal is confined only to item No.4 of the suit schedule property, which is vacant land of measuring 4 ½ acres.

8. It is the contention of the appellant/plaintiff that the grandfather was possessed ancestral properties and by sale from those ancestral properties, the said 4th item of suit schedule property was purchased in the name of the 1st defendant. It is however contended that, since it had been purchased from the ancestral nucleus, the appellant, as a coparcener is entitled to a share in the said property. As a matter of fact, the suit had been instituted with respect to other properties also in which share had been granted but since share had been denied with respect to the 4th item of suit schedule property, the appeal had been filed.

9. In the written statement it had been contended that the property is a self acquired property of the 1st defendant and it is claimed that the appellant was not entitled to a share in the same since the sale deed stood in the name of the 1st defendant.

10. The parties went to trial and one of the issues framed was whether the 4th item of suit schedule property is also divisible and whether the appellant could be granted a share in the same.

11. The main crux of the case of the appellant was that under Ex.A6, which was marked during the course of trial, which was a paper publication issued prior to the institution of the suit, the general public were informed that the appellant was also entitled to a share in the property mentioned in the notice and that the 1st defendant / father was attempting to alienate them. The general public were put on notice that they cannot purchase the property without notice to the appellant. To this particular notice, all the defendants had issued a reply, wherein they had very specifically admitted that the father / 1st defendant had ancestral properties and out the sale of the properties, the 4th item of suit schedule property had been purchased however in the name of the 1st defendant.

12. We have heard the learned counsels for the appellant and the respondent.

13. The point to be considered in this appeal on the basis of the above facts is “whether the reply public notice could be termed as an admission by the 1st defendant with respect to the nature and character of the 4th item of suit schedule property?

14. The facts are not in dispute. The appellant is the son of the 1st defendant. Prior to the institution of the suit, Ex.A6 notice had been issued on behalf of the appellant listing out the properties, wherein it was claimed that the appellant has a share and putting the general public on notice that they should not come forward to purchase the same without the appellant participating in any such transaction. To this public notice, the defendants had issued a reply under Ex.A7. We would extract Ex.A7 which was as follows:

                   “TAMIL”

                   “TAMIL”

15. A reading of the said public notice shows that the 1st defendant had categorically admitted that the 4th item of suit schedule property had been purchased only from and out of the proceeds of the ancestral properties. In paragraph No.12 of the plaint, the fact of issuance of the public notice had been stated by the plaintiff. In the written statement, the 1st defendant had not denied issuance of the reply public notice. In the written statement, in paragraph No.13, the 1st defendant had stated as follows:

                   “13.The allegations in para No.12 of the plaint are denied as false. It is false to state that this defendant were trying to alienating the schedule mentioned undivided property which would affect the right of the minor. The paper publication issued by the plaintiff and the reply by the defendants are admitted. The allegations made in the reply are true, valid and the allegations made in the publication issued by the plaintiff are nothing but false.”

16. During cross-examination of DW-1 / 1st defendant, a specific question was put with respect to the notice issued on his behalf and he had stated as follows:

                   “TAMIL”

17. The follow up question was whether the properties were ancestral in nature. He had then given this particular answer:

                   “TAMIL”

18. It is thus seen that he had initially admitted to issuing the notice. He had actually admitted in the written statement that the contents of the notice were correct. However, when confronted with the specific question, he had stated that his brother-in-law had issued the notice. We would reject that particular stand of the 1st defendant.

19. Section 18 of the Indian Evidence Act, 1872 equivalent to Section 16 of the Bharatiya Sakshya Adhiniyam (BSA), 2023 is as follows:

                   “18.Admission by party to proceeding or his agent: Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions. ”

20. Any admission made by an advocate on behalf of his client is binding on the client. The advocate can be categorised as an authorized agent of every client.

21. The admission under Ex.A7 is very categorical that the 4th item of suit schedule property had been purchased by the grandfather in the name of the 1st defendant only from and out of the proceeds of the ancestral properties. The ancestral nucleus is therefore established.

22. The learned counsel for the 1st respondent placed reliance on the judgment of a Division Bench reported in 2004 (4) CTC 208, R.Deivanai Ammal (Died) and another Vs. G.Meenakshi Ammal and others and placed specific reliance on paragraph No.13, which is as follows:

                   “13.First let us consider the nature of the suit properties, namely, self acquired properties of late Ganapathy Moopanar or ancestral properties and whether any nucleus was available to purchase the properties. Under the Hindu Law it is only when a person alleging that the property is ancestral property proves that there was a nucleus by means of which other property may have been acquired, that the burden is shifted on the party alleging self-acquisitions to prove that the property was acquired without any aid from the family estate. In other words the mere existence of a nucleus however small or insignificant is not enough. It should be shown to be of such a character as could reasonably be expected to lead to the acquisition of the property alleged to be part of the joint family property. Where the doctrine of blending is invoked against a person having income at his disposal and acquiring property, the reasonable presumption to make is that he had the income at his absolute disposal unless there is evidence to the contrary. If a coparcener desires to establish that a property in the name of a female member of the family or in the name of the manager himself has to be accepted and treated as property acquired from the joint family nucleus, it is absolutely essential that such a coparcener should not only barely plead the same, but also establish the existence of such a joint family fund or nucleus. Even if the joint family nucleus is so established, the prescription that the accretions made by the manager or the purchases made by him should be deemed to be from and out of such a nucleus does not arise, if there is no proof that such nucleus of the joint family is not an income-yielding apparatus. The proof required is very strict and the burden is on the person who sets up a case that the property in the name of a female member of the family or in the name of the manager or any other coparcener is to be treated as joint family property. There should be proof of the availability of such surplus income or joint family nucleus on the date of such acquisitions or purchases. The same is the principle even in the cases where moneys were advanced on mortgages over immoveable properties. The onus is not on the acquirer to prove that the property standing in his name was purchased from joint family funds. That may be so, in the case of a manger of a joint family, but not so in the case of all coparceners. For a greater reason it is not so in the case of female members.”

23. In the case, there was an admission of a particular fact. The admission was categorical and restated in the written statement and also admitted during cross-examination. We hold that no further proof is required with respect to the nature and character of the 4th item of suit schedule property. It had been purchased by the grandfather on selling his ancestral properties, however in the name of the father of the appellant herein. Naturally, the appellant has a right to claim a share in the 4th item of suit schedule property.

24. The learned counsel for the 1st respondent stated that however documents have been filed to show that the 1st defendant had source to purchase the property.

25. In this connection, specific reliance had been made on Ex.B10 which is the Income Tax Return for the Assessment Year 2008 - 2009 equivalent to the Financial Year 2007 - 2008.

26. It is to be noted that this particular property was purchased on 14.07.2008 in the Financial Year 2007 – 2008. The income earned from the business was declared to Rs.1,25,000/-. The deductions sought were for Rs.12,812/-. The total income was shown as Rs.1,12,190/-. The property had been purchased for a total consideration of Rs.14,80,000/-. It is impossible to purchase a property of that value with an income of Rs.1,25,000/-.

27. We therefore hold that the property had been purchased only from and out of the ancestral nucleus by the grandfather in the name of the 1st defendant and once that fact is established, we hold that the appellant would be entitled to a share in the property. The public notice issued on behalf of the 1st respondent is binding on the 1st respondent with respect to its contents and also on the correctness of the said contents. We hold that it was an effective admission of a material fact, which is also a relevant fact to decide the point framed for consideration. The point is answered in favour of the appellant.

28. We hold that the appellant is entitled to an undivided 3 / 20th share in the 4th item of suit schedule property equivalent to the other properties. Accordingly, the Appeal Suit stands allowed. No costs. Consequently, connected Miscellaneous Petition is closed.