Madras High Court
M.Kandhasamy vs M.Ganeshamoorthy on 6 January, 2025
A.S.(MD) No.41 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
and
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
A.S.(MD) No.41 of 2017
1.M.Kandhasamy
2.J.Kalaiyarasi
3.Chellakili
4.Minor.N.Sathya
5.Minor.N.Aravinth ... Appellants
[Appellants 4 and 5 are
represented by their mother
and next friend third appellant]
-vs-
1.M.Ganeshamoorthy
2.S.Santhaiya ... Respondents
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https://www.mhc.tn.gov.in/judis
A.S.(MD) No.41 of 2017
Appeal suit filed under Section 96 of the Civil Procedure Code, 1908, as
against the judgment and decree in O.S.No.49 of 2011, on the file of the IV
Additional District Judge, Tirunelveli, dated 11.11.2016.
For Appellants : Mr.V.Meenakshisundaram
For Respondents : No appearance
JUDGMENT
[Judgment of the Court was made by RMT.TEEKAA RAMAN, J.]
The plaintiffs having not satisfied with the judgment and decree
dismissing the suit in respect of the third schedule properties have preferred
this appeal.
2. For the sake of convenience, the parties are referred to as per
the ranking in the suit.
3. The plaintiffs 1 and 2, first defendant and one Nalla Perumal
are the legal heirs of Muthaiyah Nadar and Masanammal. The plaintiffs 3 to
5 are the legal heirs of the one of the deceased brother of the plaintiffs 1 and 2
and first defendant, namely, Nalla Perumal.
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4. According to the plaintiffs, the suit schedule properties are joint
family properties and hence, they are available for partition.
5. According to the defendants, except third schedule properties,
the first and second schedule properties alone are joint family properties and
available for partition. Further, according to the defendants, the first item of
the third schedule properties is a house constructed in the Natham land by
the first defendant with the separate fund available with him and the second
item of the third schedule properties is a landed property purchased by the
first defendant by pledging 40 sovereigns of gold jewels of his wife and hence,
third schedule properties are the self-acquired properties of the first defendant
and are not available for partition.
6. During trial, the first plaintiff himself was examined as P.W.2
and the second plaintiff herself was examined as P.W.1 and marked Exs.A1 to
A11. On behalf of defendants, the defendants 1 and 2 themselves were
examined as D.W.1 and D.W.2 respectively and marked Exs.B1 to B16.
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7. Based upon the both oral and documentary evidence, the
learned Trial Judge has come to the conclusion that in view of the admitted
position, the plaintiffs are entitled to 3/4 share and the first defendant is
entitled to 1/4 share in the first and second schedule properties. In respect of
the third schedule properties are concerned, the learned Trial Judge has
categorically held that there is no acceptable evidence either independent oral
evidence or documentary evidence to show that there were income from the
joint family properties and there were surplus income and that surplus
income was sufficient to purchase the third schedule properties. According to
the plaintiffs, the first plaintiff sent money to the first defendant. However, for
the payment of money by the first plaintiff, there is no documentary proof. In
this case, there is no acceptable evidence that there were surplus income from
the joint family properties and that surplus income was sufficient to purchase
the third schedule properties. Hence, the plaintiffs failed to prove that the
third schedule properties were purchased from and out of the income derived
from the joint family properties and therefore, the plaintiffs are not entitled for
any share in the third schedule properties. Aggrieved over the findings
rendered by the learned Trial Judge in respect of the third schedule
properties, the plaintiffs have filed this appeal.
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8. It remains to be stated that the second defendant is none other
than the purchaser of the first item of third schedule properties from the first
defendant. According to the second defendant, he is the bona fide purchaser
of the first item of third schedule properties for a valid sale consideration and
hence, the plaintiffs are not entitled for any share in respect of the third
schedule properties.
9. Heard the learned counsel for the plaintiffs / appellants and
perused the materials available on record.
10. Though the defendants / respondents were served and their
names have been printed in the cause list, none appeared on before the
defendants.
11. The short point arises for consideration is whether the
plaintiffs have proved that the third schedule properties were purchased by
the first defendant from and out of the income derived from the joint family
properties.
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12. In the case of Malla Naicker @ Singari vs. Jeeva (minor),
reported in 2012 (1) CTC 128, this Court has categorically held as to on
whom the burden of proof lies in respect of the self-acquired property vis-a-vis
ancestral property. The relevant portion of the said decision is extracted
hereunder:
“17.Therefore, having regard to the
presumption as per the law laid down by the Hon'ble
Supreme Court as well as our High Court as referred
to above, and as stated in Mulla Hindu Law that when
a Kartha claims certain properties as a separate
properties and the joint family admittedly possessed
of some nucleus, the burden is on the Kartha to prove
that the properties are his separate properties and not
purchased out of the joint family properties' income.
On the other hand, if the co-parcener claims certain
properties as his separate properties, then the burden
is cast on the other co-parcener, who claims that the
property is a joint family property to prove that
property purchased in the name of one of the co-
parceners was purchased out of the joint family
properties' income and it was not a separate
property.”
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13. In the instant case, the first defendant was examined as D.W.
1. Exs.B3 to B5 are the mortgage deeds and Exs.B6 and 7 are the receipts for
payment of the mortgage amount and Ex.B8 is the certified copy of the sale
deed executed by the first defendant in favour of the second defendant in
respect of the first item of the third schedule properties. Ex.B11 is the sale
deed executed in favour of the first defendant in respect of the second item of
the third schedule properties. Hence, we are of the view that the learned Trial
Judge has rightly come to the conclusion that the plaintiffs have failed to
prove that the third schedule properties were purchased from the income of
the joint family properties and there were surplus income from the joint family
properties and on that basis alone, the third schedule properties were
purchased by the first first defendant.
14. It remains to be stated that the first defendant has proved the
source of income for purchase of the third schedule properties by pledging the
40 severeigns of gold jewels of his wife. Hence, we are of the view that the
findings rendered by the learned Trial Judge do not warrant interference of
this Court. Accordingly, the above point is answered as against the plaintiffs.
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15. In the result, this appeal is dismissed and the Judgment and
Decree, dated 11.11.2016, passed in O.S.No.49 of 2011, by the learned IV
Additional District Judge, Tirunelveli, are hereby confirmed. No costs.
[T.K.R., J.] [N.S., J.]
06.01.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
To:
1.The IV Additional District Judge,
Tirunelveli.
2.The Section Officer,
VR Section,
Madurai Bench of
Madras High Court,
Madurai.
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https://www.mhc.tn.gov.in/judis
RMT.TEEKAA RAMAN, J.
AND
N.SENTHILKUMAR, J.
krk
06.01.2025
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https://www.mhc.tn.gov.in/judis
