Madras High Court
Babu vs Malliga on 7 November, 2024
Author: R.Subramanian
Bench: R.Subramanian
A.S.No.80 of 2012
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE MUMMINENI SUDHEER KUMAR
A.S.No. 80 of 2012
1.Babu
2.Sivanathan
3.Dhanalakshmi
4.Natarajan
5.Kalaivani
6.Senthilkumar ...Appellants
Vs.
1.Malliga
2.Geetha
3.Banumathi
4.Uma Maheswari
5.Vijayalakshmi ...Respondents
Prayer: First Appeal filed under Section 96 of the Code of Civil Procedure,
against the judgment and decree dated 31.10.2011 granted in O.S.No.22 of
2011 on the file of the Additional District and Sessions Judge, Fast Track
Court, Vellore.
For Appellants : Mr.Prathik Y.Jain
For Respondents : Mr.N.Mahendra Babu for R1, R4 & R5
1/6
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A.S.No.80 of 2012
JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
The defendants in O.S.No.22 of 2011 are on appeal, aggrieved by a
preliminary decree for partition granted by the Trial Court, declaring that the
plaintiffs are entitled to 5/11th share in the suit properties.
2. The plaintiffs sought for partition contending that the suit property
belong to their father, Manicka Naidu by virtue of a sale deed dated
30.10.1958. After the said purchase, the said Manicka Naidu demolished
the old structure in the property and put up a new building. It is stated that
the building in the suit property is a self-acquired property of the said
Manicka Naidu who died on 08.04.1989. His wife Kanthammal died on
21.02.2006. The couple left behind the plaintiffs and the defendants, who
are 11 in number as their heirs. The plaintiffs, who are the daughters seek
partition of their 5/11th share.
3. The suit was resisted by the defendants and the 2nd defendant
alone filed a written statement contending that the suit property is a joint
family property and the construction of the terraced house was put up in
1970 out of the joint family funds. It was also claimed that Manicka Naidu
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mortgaged the property under Ex.B2 on 01.09.1972 and the said mortgage
deed specifically states that the property in question belong to him
ancestrally and hence, the plaintiffs would not be entitled to the share as
claimed by them.
4. On the above pleadings, the Trial Court framed the following
issues:-
"i) Whether the suit properties are the ancestral properties ?
ii) Whether the plaintiffs are entitled to 5/11th share in
the suit properties as prayed for?
iii) To what other relief the plaintiffs are entitled ?"
5. The learned Trial Judge concluded that the suit property is a self-
acquired property of Manicka Naidu and to come to the conclusion, he relied
upon the recitals in the sale deed, Ex.A1 dated 30.10.1958 under which,
Manicka Naidu purchased the property from Syed Hussain Sahib Katheef.
On the said conclusion, the learned Trial Judge passed a preliminary decree
declaring the 5/11th share of the plaintiffs who are 5 in number. Aggrieved,
the defendants have come up with this appeal.
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6. We have heard Mr.Prathik Y.Jain, learned counsel for the appellants
and Mr.N.Mahendra Babu, learned counsel for the respondents 1, 4 & 5.
The only question that arises for consideration in this appeal is as to the
nature of the property in the hands of Manicka Naidu i.e., whether it is
ancestrol or self acquired.
7. The learned counsel for the appellants would vehemently contend
that once Manicka Naidu himself has conceded that the property was
ancestral property, the learned Trial Judge was not right in concluding that
the property is a self-acquisition of the said Manicka Naidu. The recitals in
Ex.B2 / mortgage deed is sought to be projected as conclusive evidence of
the fact that the property is ancestral property of Manicka Naidu.
8. As opposed to the recitals in Ex.B2, the recitals in Ex.A1, sale deed
would show that the property was acquired by Manicka Naidu and it
remained as his property till his death in 1989. Ex.A1 / Sale deed does not
show that Manicka Naidu had has paid the consideration out of joint family
funds. From a reading of Ex.A1, we are unable to make out that the
property was purchased out of ancestral nucleus.
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9. Be that as it may, whether the property is ancestral or self-acquired
losses significance, in the light of the subsequent pronouncement of the
Hon'ble Supreme Court in Vineeta Sharma Vs. Rakesh Sharma and Others
reported in (2020) 9 SCC 1. The Hon'ble Supreme Court has held that
immaterial of the date of death of the father, the daughters would become
coparceners. If the daughters are coparceners, they would be entitled to
equal share as that of the sons. The wife of Manicka Naidu, Kanthammal
has also died in the year 2006 therefore, her share in the property would
devolve on the daughters and the sons equally.
10. The net result would be the plaintiffs would be entitled to 1/11th
share each as has been declared by the Trial Court. We therefore, see no
reason to interfere with the judgment and decree of the Trial Court. This
Firs Appeal is therefore, dismissed. No costs.
(R.S.M., J.) (M.S.K., J.)
07.11.2024
kkn
Internet:Yes
Index: No
Speaking
Neutral Citation : No
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R.SUBRAMANIAN, J.
and
MUMMINENI SUDHEER KUMAR, J.
KKN
To:-
The Additional District and Sessions Judge,
Fast Track Court, Vellore.
07.11.2024
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