Madras High Court
Kuppanna Gounder [Died vs Sarasu on 10 February, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
A.S..No.298 of 2022
THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 10.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
A.S.No.298 of 2022
Kuppanna Gounder [Died]
Thangaraj ... Appellant
Versus
1. Sarasu
2. Vellayan
3. The Assistant Executive Engineer [O & M],
TANGEDCO, Chithalandur,
Thiruchengodu, Namakkal District.
4. The Superintendent of Engineer,
TANGEDCO, Paramathi Road,
Krishna Complex, Namakkal.
5. The Chief Executive Engineer,
TANGEDCO, Erode.
6. Tulasimani ... Respondents
Page 1 / 12
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A.S..No.298 of 2022
PRAYER : This Appeal Suit has been filed under section 96 of Code of Civil
Procedure to set aside the decree and the judgment dated 11.01.2022 rendered
in O.S.No.146 of 2013, on the file of the Sessions [Fast Track Mahila] Judge,
Namakkal, by allowing this Appeal suit.
For Appellants : Mr.V.B.Jayachandran
for K.Soundararajan
For Respondents : Mr.T.S.Arthaneeswaran – R1
Notice dispensed with for R2 to R6
vide Order of this Court dated 08.09.2022
JUDGMENT
Challenging the decree and judgment of the trial Court in decreeing the
suit granting preliminary decree for 1/3 share to the plaintiff and also setting
aside the settlement deed dated 08.11.2012 in respect of the 1/3 rd share of the
plaintiff, the present appeal suit has been filed.
2. The parties are arrayed as per their own ranking before the trial
Court.
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3. It is the case of the plaintiff that the plaintiff is the daughter of the
first defendant born through his first wife. The second defendant is the son of
the first defendant through his second wife. It is the contention of the plaintiff
that the property has been purchased by the first defendant out of the joint
efforts of the plaintiff and others. It is the specific case of the plaintiff that the
property has not been purchased out of the joint family nucleus or from the
income of the ancestral property. The property has been purchased out of joint
exertion and efforts and contribution made by the plaintiff. Hence, the
plaintiff claims partition. However, the same has not been considered. In this
regard there was a panchayat in the village on 15.06.2012 and even in the
panchayat, the first defendant failed to allot the share of the plaintiff. Now,
the first defendant has executed a settlement deed in favour of the second
defendant on 08.11.2012 Hence, the suit.
4. In the written statement, it is the contention of the first defendant that
the property has been purchased on 24.05.1974 and the plaintiff was marred in
the year 1977 and he has also executed a release deed on 17.08.1978.
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Thereafter, the first defendant has executed a settlement deed on 08.11.2012
in favour of the second defendant. Hence, it is his contention that the subject
property is his self acquired property. Hence, disputed the claim of the
plaintiff.
5. The trial Court, based on the above pleadings, framed the following
issues :
1. Whether the plaintiff is entitled for partition of ½
share in the suit property?
2. Whether the suit property is a joint family property?
3. Whether the plaintiff is entitled to relief of declaration
declaring the settlement deed dated 08.11.2012 is not valid
with regard to the half share of the plaintiff?
4. Whether the plaintiff has executed a release deed in
favour of the first defendant with regard to her share?
5. To what relief?
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Additional Issues :
1. Whether the defendants 5 to 7 are necessary parties to
the suit?
2. Whether the suit properties are the self acquired
properties of the first defendant as per the sale deed dated
24.05.1994?
6. On the side of the plaintiff, P.W.1 and P.W.2 have been examined
and Ex.A.1 to Ex.A.4 have been marked. On the side of the defendants,
D.W.1 has been examined and Ex.B.1 to Ex.B.4 have been marked.
Considering the oral and documentary evidence, the trial Court granted
preliminary decree in favour of the plaintiff. Challenging the same, the
present appeal has been filed by the first defendant.
7. The learned counsel appearing for the appellant mainly would submit
that the trial Court has only for the purpose of decreeing the suit considered
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Ex.B.1 and rejected the evidence of D.W.1 and the documents filed on his
side. Further, the trial Court has held that the release deed has not been
established. However, relying on the contents of the release deed, the trial
Court decreed the suit, which cannot be permitted in the eye of law. Further,
there is no evidence to show that the property has been purchased out of the
joint family nucleus.
8. In the light of the above submissions, the following points arise for
consideration :
1. Whether the suit properties are joint family properties
purchased out of the joint family nucleus?
2. Whether the plaintiff is entitled for a share in the suit
property?
9. Despite an opportunity being given to the respondent, the respondent
has not appeared before this Court. In the last hearing, the learned counsel
appearing for the respondent sought time to argue the matter. However, none
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appeared for the respondent today. Hence, this Court is inclined to dispose of
the appeal suit.
10. It is the specific case of the plaintiff that the property has been
purchased by the father, viz., the first defendant herein. Joint family nucleus
or income of the joint family has not been utilized for the purchase of the
property. Whereas, the specific case of the plaintiff is that the property has
been purchased out of the joint exertion and efforts put by the plaintiff and
others.
11. The plaintiff was married in the year 1977 itself. The property has
been purchased by the first defendant in the year 1974 under Ex.A.1. With
regard to the nature of the joint efforts put by the plaintiff, there is absolutely
no evidence. Even assuming that the property has been purchased out of the
joint family nucleus, in the entire pleadings, there is no materials, whatsoever,
to the effect that the ancestral property was available at the relevant point of
time and the family possessed sufficient nucleus.
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12. The main contention of the learned counsel appearing for the
appellant is that the trial Court has held that the release deed itself clearly
indicate that the property is a joint family property. But in this regard,
absolutely, there is no materials whatsoever in the pleadings as to the nature of
nucleus possessed by the joint family.
13. When a person claims that any property is purchased out of the
income of the joint family property, the initial burden is on him to show that
there is sufficient nucleus available in the family to purchase the property and
possess some ancestral property atleast to infer that the properties were
generating income at the relevant point of time. Whereas, the specific plea
asserted by the plaintiff in the plaint is that the property was never purchased
out of the income of the joint family income. The stand taken by the plaintiff
is that the property has been purchased with joint exertion and efforts put by
the plaintiff. There is no materials whatsoever in the entire evidence as to the
nature of efforts and joint exertion put by the plaintiff. The plaintiff has
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married within three years of the purchase of the property. Therefore, it is
highly improbable to contend that the property has been purchased out of the
contribution of the plaintiff and others.
14. It is also relevant to note that Ex.B.1 release deed is a registered
document executed by the plaintiff releasing her share in the entire property.
Whereas in her cross examination she had pleaded ignorance of the
registration of the document. Therefore, once a document has been executed
and registered and there is no denial of the document, pleading ignorance will
not relieve the plaintiff from discharging her burden to show that the release
deed has not been executed by herself. The trial Court infact has committed
fundamental error, having held that the release deed has not been proved in the
manner known to law, only for the purpose of decreeing the suit in favour of
the plaintiff, contents of the release deed has been used, which, in view of this
Court, is totally against the settled position of law.
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15. Once a document is not proved in the manner known to law, the
entire document has to be rejected. There cannot be any selective approach by
the trial Court to rely upon certain content of the document in favour of any of
the parties. Therefore, the approach of the trial Court in this regard is
fundamentally wrong and against settled position of law. Therefore, in the
absence of any other evidence that the property has been purchased out of the
joint family nucleus or joint efforts of the plaintiff and others, on the basis of
Ex.B.1, in view of this Court, as the plaintiff has released her right over the
property, the trial Court granting preliminary decree cannot be sustained and
the same has to be necessarily interfered. The points are answered
accordingly.
16. In the result, this Appeal Suit is allowed and the judgment and
decree of the suit in O.S.No.58 of 2012, dated 31.08.2021 is modified to the
effect that the plaintiff is entitled to 1/3 share. In respect of other aspects, the
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judgment of the trial Court is Confirmed. There shall be no Order as to costs.
Consequently, connected miscellaneous petition is closed.
10.02.2025
Index : Yes / No
Internet: Yes
Speaking/non speaking order
vrc
To,
The Sessions Judge,
Fast Track Mahila Court, Namakkal.
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N. SATHISH KUMAR, J.
vrc
10.02.2025
https://www.mhc.tn.gov.in/judis
