Madras High Court
Valliammal ... 2Nd vs Pushpa on 3 April, 2025
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
A.S.No.595 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.04.2025
CORAM
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
A.S.No.595 of 2023
and
C.M.P.No.20324 of 2023
Muthammal (Died)
1. Valliammal ... 2nd Plaintiff/1st Appellant
2. Poongavanam
3. Karthikeyan ... Legal heirs of 1st Plaintiff/Appellants 2 & 3
-vs-
1. Pushpa
2. Vasantha
3. Venkatesan ... Defendants/Respondents 1 to 3
4. Dhanaklakshmi ... Legal heir of 1st Plaintiff/4th Respondent
Prayer: Appeal Suit is filed under Section 96 of CPC to set aside the
judgment and decree dated 14.08.2019 made in O.S.No.23 of 2014 on the
file of the Principal District Judge, Villupuram by allowing this First
Appeal.
For Appellants : Mr.C.Munusamy
For R1 & R2 : Mr.J.Chandran Sundar Sashikumar
For R3 & R4 : No Appearance
*****
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A.S.No.595 of 2023
JUDGMENT
Challenging the decree and judgment of the Trial Court,
granting preliminary decree to the extent of 2/6 shares in Items Nos.1 to 3,
6, 7, 9 to 13 and in part of 5th Item, the plaintiffs have filed the present
appeal.
2. The parties are arrayed as per their own ranking before the
Trial Court.
3. It is the case of the plaintiffs that their father Kuppakounder
had two wives and the name of the 1st wife is Angammal and the 2nd wife is
one Kanniammal. Through 1st wife Angammal, Kuppakounder had one son,
namely, Muthukounder and the plaintiffs were born through the 2nd wife.
The 1st wife Angammal died intestate before 30 years and therefore, the
plaintiffs are the Class-I legal heirs of Kuppakounder. Item Nos.4, 5 and 8
were purchased by Muthukounder from and out of the joint family income
and the said Muthukounder is the brother of the plaintiffs. Therefore, the
plaintiff sought 2/3rd share in the property.
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4. The defendants 1 and 2 filed a written statement, contending
that Muthukounder is the father of the defendants and while Angammal was
alive, Kuppakounder had married Kanniammal as 2nd wife. After the demise
of Kuppakounder, his only son Muthukounder had inherited the properties
and enjoyed the same and after his death, the defendants 1 and 2 enjoyed the
property and the plaintiffs were not at all in joint possession with the
defendants. It is further contended that Muthukounder had purchased certain
properties out of his own income and hence, opposed the suit.
5. The Trial Court, based on the above pleadings framed the
following issues:
i) Whether the suit properties are joint family properties?
ii) Whether the plaintiffs are entitled for 2/3rd share in the
suit properties?
iii) Whether the plaintiffs are entitled for means profit as
prayed for?
iv) To what other reliefs the plaintiffs are entitled to?
6. On the side of the plaintiffs, the 2nd plaintiff was examined as
P.W.1 and P.W.2 and P.W.3 were also examined and Ex.A1 to Ex.A8 were
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marked. On the side of the defendants, the 1st defendant was examined as
D.W.1 and Ex.B1 to Ex.B16 were marked.
7. The Trial Court, after appreciation of evidence, granted 2/6
shares to the plaintiffs by holding that there is no evidence that
Kuppakounder married Kanniammal after the death of the 1st wife.
8. Learned counsel for the appellants would mainly submit that
the Trial Court has erred in dismissing the suit in respect of other items and
concluding that the plaintiffs are entitled to only 2/6th shares instead of 2/3rd
shares. He would further submit that Kuppakounder married Kanniammal
only after the death of the 1st wife and this fact has been clearly spoken by
the witnesses, which has not been denied in the cross examination. Further,
the Trial Court had non suited the plaintiffs on technical ground. He would
also submit that admittedly, Muthukounder, father of the defendants had
inherited the properties of Kuppakounder and Item Nos.4, 5 and 8 were
purchased in the name of Muthukounder by Kuppakounder and therefore, it
has to be inferred that those properties were purchased out of the income of
the joint family.
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9. Whereas learned counsel for the respondents 1 & 2 would
contend that there is no evidence to show that the plaintiffs' mother married
Kuppakounder after the death of his 1st wife. The Trial Court has rightly
appreciated the evidence in this regard and held that the plaintiffs' mother
married Kuppakounder during the life of the 1st wife. As long as there is no
valid marriage between Kuppakounder and Kanniammal, the plaintiffs
cannot be construed as co-parceners and they are entitled to shares only
from the father's properties. He would further contend that as far as Items
Nos.4, 5 and 8 are concerned, those properties were purchased by
Muthukounder individually and in the absence of any evidence with regard
to the nature of income from the joint family properties, on the basis of mere
purchase in the name of one of the members of the family, it cannot be held
that those properties were purchased out of the income of the joint family.
Moreover, the plaintiffs were not at all in joint possession with the
defendants at any point of time.
10. In the light of the above, the points for consideration in this
appeal are as follows:
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i) Whether there was a valid marriage between Kuppakounder
and the plaintiffs' mother Kanniammal?;
ii) Whether Item Nos.4, 5, 8 were purchased out of the joint
family income? And
iii) To what other reliefs the plaintiffs are entitled to?
POINTS:
11. It is admitted by both sides that except Items Nos.4, 8 and a
part of 5th Item, all other properties were originally owned by
Kuppakounder. It is also not disputed that Kuppakounder had two wifes,
namely, Angammal and Kanniammal and defendants 1 to 3 are the
grandchildren of Angammal, i.e., daughters of Muthukounder, who was the
only son born through Angammal to Kuppakounder. The plaintiffs were
born through Kanniammal, the 2nd wife of Kuppakounder. These facts are
not at all disputed.
12. The only contention put forth by the defendants in their
written statement that the plaintiffs' mother Kanniammal married
Kuppakounder during the life time of the 1st wife, whereas it is the specific
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case of the plaintiffs that Kanniammal married Kuppakounder after the
death of the 1st wife Angammal. Though there was no death certificate
produced to prove the date of death of Angammal, this Court is of the view
that mere non production of death certificate cannot be a ground to reject
the plaintiffs' case for the simple reason that the specific case of the
plaintiffs, that their mother married Kuppakounder after the death of the 1st
wife, has not been denied in the cross examination. P.W.1 specifically
asserted in her evidence that her mother married Kuppakounder after the
death of Angammal and her specific evidence has not even been denied in
the cross examination. D.W.1 in the cross examination clearly deposed that
she has no direct knowledge about the marriage and she pleaded ignorance
about the date of marriage and she was not aware of the solemnization of
the 2nd marriage between Kuppakounder and Kanniammal. Her evidence
only indicates that their defence is based on hearsay evidence and they have
no direct knowledge about the marriage. Therefore, the 2nd plaintiff, who is
the direct legal heir of Kuppakounder born through Kanniammal, asserted
that her mother married Kuppakounder after the death of the 1 st wife
Angammal and her evidence has not been disputed in the cross examination.
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Therefore, the factum of marriage of Kanniammal with Kuppakounder, after
the death of Angammal is held to be proved, as the finding of the Trial
Court that there is no evidence that Kanniammal married Kuppakounder
after the death of the 1st wife is merely on the basis of inference without any
evidence. Further, the partition deed has been effected among the
defendants 1 and 2 on 09.04.2013 as per Ex.A8 and the said partition does
not bind the plaintiffs.
13. In the entire written statement, though it is stated that by
the defendants 1 & 2 that the plaintiffs are not in joint possession with the
defendants, the plea of ouster is not established to deny the share and as
long as the plea of ouster is not taken, the plaintiffs cannot be denied any
shares in the property.
14. Insofar as Item Nos.4, 5 and 8 are concerned, those
properties were purchased by Muthukounder under Ex.B1 to Ex.B3 and
Ex.B5 dated 21.03.1974, 15.07.1964, 04.06.1962 and 10.12.1973
respectively and those documents indicate that the properties had been
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purchased by Muthukounder alone. Though the father of Muthukounder had
left some properties, if the evidence of P.W.1 in the cross examination is
carefully seen, the land possessed by Muthukounder is only a dry land and
no irrigation facilities are available. Therefore, in the absence of any
evidence to show that the land allotted by Kuppakounder has been
generating any income, it cannot be presumed that the properties have been
purchased by the member of the family from the income of the joint family,
especially when the plaintiffs have not shown any income in their evidence
to substantiate their stand that the purchase made vide Ex.B1 to Ex.B3 and
Ex.B5 was out of joint family nucleus. The finding of the Trial Court in this
regard does not require any interference. As stated supra, the marriage of the
plaintiffs' mother with Kuppakounder after the death of the 1 st wife has been
clearly proved and therefore, the plaintiffs are entitled to equal shares along
with brother Muthukounder.
15. In the result, the instant Appeal Suit is allowed in part. The
suit is decreed in favour of the plaintiffs. The plaintiffs are entitled to 2/3 rd
shares in Item Nos.1 to 3, 6, 7, 9 to 13 and also part of Item No.5. The
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N.SATHISH KUMAR,J.,
ar
judgment of the Trial Court in respect of Item Nos.4, two cents of 5th Item
and 8 is hereby confirmed. No costs. Consequently, connected
Miscellaneous Petition is closed.
03.04.2025
Index: Yes / No
Internet: Yes / No
ar
To:
1. The Principal District Judge,
Villupuram
2. The Section Officer,
V.R.Section,
High Court,
Madras.
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