Madras High Court
P.Rathinam vs Nanjammal (Deceased) on 30 January, 2025
Author: T.V. Thamilselvi
Bench: T.V. Thamilselvi
S.A.No.1567 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.01.2025
CORAM:
THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI
S.A.No.1567 of 2002
and
C.M.P.Nos.2333 of 2022,10029 of 2019, 10034 of 2019, 1037 of 2019,
1392 of 2024, 16198 of 2024, 17855 of 2023, 21553 of 2024, 21878 of
2023, 22578 of 2023, 1114 of 2011, 23513 of 2023, 27541 of 2019, 29376
of 2023, 3120 of 2022, 317 of 2014, 5690 of 2024, 571 of 2011, 3121 of
2022, 6394 of 2017 and 7568 of 2023
and C.M.P.SR.Nos.15278 of 2018, M.P.SR.Nos.97144 and 97145 of 2017
P.Rathinam ...Appellant/Appellant/Plaintiff
Vs.
1.Nanjammal (deceased)
W/o.Late Palani Gounder
2.Kalisamy
3.Sellakutty
4.Poovathal
5.Dhanalakshmi ...Respondents/Respondents/Defendants
(R2 to R5 recorded as legal representatives of the deceased 1st respondent
vide order of this Court dated 09/11/2011 in CMP.No.584 of2011 in
S.A.No.1567 of 2002)
[Reconstructed vide Court order dated 22/01/2025 (TVTSJ)]
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1/31
S.A.No.1567 of 2002
Prayer: Second Appeal is filed under Section 100 of the Civil Procedure
Code, to set aside the Judgment and Decree dated 05.12.2001 in
A.S.No.172 of 2002 on the file of the learned Principal District Judge,
Coimbatore, reversing the Judgment and Decree dated 31.07.2001 in
O.S.No.172 of 1996 on the file of the learned Additional Subordinate
Judge, Coimbatore.
For Appellant : Mr.P.Muthusamy,
Power of Attorney of Rathinam / Appellant
For Respondents : Mr.T.R.Rajagopalan,
Senior Counsel
for Mr.K.S. Karthik Raja
for R2 and R3
Mr.C.R.Prasanan for R4 and R5
R1 – died
JUDGMENT
This Second Appeal arises against the Judgment and Decree dated
05.12.2001 in A.S.No.172 of 2002 on the file of the learned Principal
District Judge, Coimbatore, reversing the Judgment and Decree dated
31.07.2001 in O.S.No.172 of 1996 on the file of the learned Additional
Subordinate Judge, Coimbatore.
2. For the sake of convenience, the parties herein are referred to as
they were ranked in the suit.
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3.The appellant is the plaintiff. The suit was filed for partition in
respect of two items of the suit properties. In the 1st item of the suit
property, the plaintiff claimed 1/18 share and 1/6 share in the 2nd item of
the suit property against the defendants.
4. Before the Trial Court, the defendants 4 and 5 remained ex parte
and the defendants 2 and 3 alone contested the suit.
5.According to the plaintiff, the 1st item of the suit property is
ancestral property in which her father, Palani Gounder, had 1/3 rd share.
In that share, she claims 1/18 share, as her father died intestate on
19.10.1995. In respect of the 2nd item of the suit property, it is the self-
acquired property of her father. As his legal representative, she is entitled
to 1/6 share along with the other legal heirs.
6.The defendants 2 and 3 had filed a Written Statement inter alia
contending that the 1st item of the suit property alone is the joint family
property and the same was partitioned between themselves on 04.07.1984.
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As per the partition, the 1st item was divided into three schedules. The “C”
schedule was allotted to their father with limited interest. After his demise,
his share also devolved upon to the defendants 2 and 3. In that partition, an
extent of 1.90 acres was allotted with limited interest. As of now, the
second and third defendants are in possession and enjoyment of the first
item of the suit property. Even under the new Amendment Act, the
plaintiff is not entitled to the first item of the suit property, as the partition
had already been acted upon, and she has no coparcenary right.
7. In respect of the 2nd item of the suit property, defendants 2 and 3
stated that the property was purchased out of their self-earned income,
with no financial contribution from their father nor income derived from
joint family properties. Therefore, the 2nd item of the suit property was
not included in the partition. As such, the plaintiff has no right to claim a
share in it.
8. The parties proceeded to trial based on the issues framed by the
Trial Court. On the side of the plaintiff, she examined herself as PW1, and
documents Ex.A1 to Ex.A5 were marked. On the side of the defendants,
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the 1st defendant was examined as DW1, the 3rd defendant as DW2, and
one Karuppusamy Nadar as DW3. Documents Ex.B1 to Ex.B62 were
marked.
9.The Trial Court, after considering both oral and documentary
evidence, concluded that the first item of the suit property is ancestral
property, a fact admitted by all parties. However, it was found that
defendants 2 and 3 had already partitioned the property, and this partition
was acted upon in the year 1984. Despite this, the plaintiff was not given
any share who is a daughter born through the 1st wife of Palani Gounder.
The Partition Deed executed by the defendants came to the plaintiff's
knowledge only during the evidence of DW1. The defendants failed to
provide sufficient reasons for not including the plaintiff and the other two
daughters in the partition.
10. After the death of his first wife, Nanjammal, the plaintiff, as the
daughter of the first wife, was brought up by her maternal grandparents.
No valid reason was given for excluding all the daughters from the
partition. Consequently, the Trial Court held that the alleged partition was
not valid and had not been acted upon. Accordingly, the court ruled in
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favour of the plaintiff, granting her 1/18 share in the 1st item of the suit
property.
11. In respect of the 2nd item of the suit property, the learned Trial
Judge observed that at the time of purchase in 1978, defendants 2 and 3
were only 20 and 21 years old, respectively, and were not earning. Further,
they failed to prove that they had a separate income to purchase the
property. They also admitted that the ancestral properties generated
sufficient income. Therefore, the court held that the 2nd item of the
property was purchased using income from ancestral properties. Though it
was registered in the names of defendants 2 and 3, they lacked the
financial capacity to purchase it independently. Since all the properties
were jointly possessed and enjoyed, the 2nd item was deemed ancestral
property. Accordingly, the plaintiff was entitled to a 1/6 share along with
other legal heirs. Thus, the suit was decreed in favour of the plaintiff.
12. Aggrieved by the Judgment and Decree of the Trial Court, the
plaintiff preferred an appeal in A.S.No.172 of 2002 before the learned
Principal District Judge, Coimbatore. The First Appellate Court
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independently analyzed the evidence on record and framed the following
points for determination:
“(1)Whether the item 2 of the suit property is the self
acquired property of Palani Gounder or the self acquired
property of the defendants 2 and 3?
(2)Whether the plaintiff is entitled to a share, in the suit
properties, if so to what share, in which item?”
13. The First Appellate Court finally held that the 1st item of the suit
property is the ancestral property and the father of the plaintiff died
intestate, but during his lifetime, a partition took place on 04.07.1984 by
way of a registered Partition Deed, in which the plaintiff's father was
allotted 1.90 acres with limited interest, while separate shares were allotted
to his sons, namely defendants 2 and 3 and the same was acted upon.
Though the plaintiff was aware of the partition in the year 1996, she has
not questioned the partition. Therefore, she belatedly raised objections
which is unsustainable, thereby, there was no property to divide and her
claim was not granted.
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14. In respect of the 2nd item of the property, the First Appellate
Court found that the Birth Certificates of defendants 2 and 3 confirmed
that they were over 20 years old at the relevant time and were engaged in
agricultural activities. DW2 provided evidence supporting their claim that
they had sufficient income to purchase the property in 1978. Therefore, the
court concluded that the second item of the suit property was the self-
acquired property of defendants 2 and 3, in which the plaintiff had no right
to claim a share. As a result, the Appeal Suit was allowed, setting aside
the Judgment and Decree of the Trial Court. Challenging the reversal of
the Trial Court’s findings by the First Appellate Court, the plaintiff has
filed the present Second Appeal.
15.Considering the same, the following Substantial Questions of
Law have been framed by this Court:
“(1)Whether the Lower Appellate Court has erred in
non suiting the plaintiff for partition and separate
possession of her share, ignoring the admission of the
defendants as to the ancestral character of Item 1 of the
suit schedule mentioned property?
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(2)Has the plaintiff not discharged the burden of
proof in rebutting the presumption of benami transaction in
respect of Item 2 of the Plaint schedule properties?”
16. The appellant was represented by her Power Agent/her husband,
P.Muthusamy, appeared as Party-in-person. He submitted that he had filed
a petition in C.M.P. No. 464 of 2011 to modify the decree of the Trial
Court, as it was not based on the new amendment Act. Furthermore, he
submitted that the learned First Appellate Judge had not properly
appreciated the evidence adduced on behalf of the plaintiff/appellant and
had erroneously held that the plaintiff was not entitled to claim any share
in the two items of the properties.
17. Further, he argued that after the death of Nanjammal, the first
wife of Palani Gounder, their elder daughter was brought up by her
maternal grandparents from childhood and was unaware of the alleged
partition claimed by defendants 2 and 3. To defeat her claim over the
properties, the alleged partition deed was created with an ulterior motive
by defendants 2 and 3, ignoring the daughters of the family. He further
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contended that the said partition deed was not acted upon and that Item 2
of the property was purchased out of the ancestral nucleus by her father.
Therefore, defendants 2 and 3 had no absolute right over the properties.
The learned Trial Judge had rightly appreciated the evidence on record,
whereas the learned First Appellate Judge had erroneously dismissed the
plaintiff's claim entirely, is perverse and liable to be set aside.
18. Pending proceedings, the 1st respondent, Nanjammal, passed
away. On the other hand, the learned counsel for respondents 2 and 3
contended that partition had already been acted upon concerning Item 1 of
the property. Therefore, the plaintiff was not entitled to any benefit under
the amended provisions of Section 6(1) of the Hindu Succession Act.
Section 6(1) does not apply to any dispositions or alienations that took
place before December 20, 2004. Since the partition had already been
acted upon in the year 1984, the plaintiff had no right or claim over 1st
item of the property. The First Appellate Court had rightly appreciated this
fact, and there was no need for interference.
19. Furthermore, the learned counsel contended that 2nd item of the
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property was the self-acquired property of defendants 2 and 3, and this had
been proved with material evidence. The First Appellate Court had rightly
analyzed the evidence and, therefore, he prayed for the dismissal of this
Second Appeal as devoid of merit.
20. The learned counsel would rely on the following Judgments in
support of his arguments:
(1)In Vineeta Sharma vs. Rakesh Sharma and others [(2020) 9
Supreme Court Cases 1], at Paras 60 and 61, the Hon'ble Supreme Court
held as follows:
“60.The amended provisions of section 6(1) provide
that on and from the commencement of the Amendment Act,
the daughter is conferred the right. Section 6(1)(a) makes
daughter by birth a coparcener "in her own right" and "in
the same manner as the son." Section 6(1)(a) contains the
concept of the unobstructed heritage of Mitakshara
coparcenary, which is by virtue of birth. Section 6(1)(b)
confers the same rights in the coparcenary property "as she
would have had if she had been a son". The conferral of
right is by birth, and the rights are given in the same
manner with incidents of coparcenary as that of a son and
she is treated as a coparcener in the same manner with the
same rights as if she had been a son at the time of birth.
Though the rights can be claimed, w.e.f. 9.9.2005, the
provisions are of retroactive application; they confer
benefits based on the antecedent event, and the Mitakshara
coparcenary law shall be deemed to include a reference to a
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daughter as a coparcener. At the same time, the legislature
has provided savings by adding a proviso that any
disposition or alienation, if there be any testamentary
disposition of the property or partition which has taken
place before 20.12.2004, the date on which the Bill was
presented in the Rajya Sabha, shall not be invalidated.”
(2)In Prasanta Kumar Sahoo vs Charulata Sahu [(2023) 9
Supreme Court Cases 641], at Paragraph 67, the Hon'ble Supreme Court
held as follows:
“67.Interpreting sub-section (1) of substituted Section
6 of the Act 1956, the Court opined in para 60 as under:
(Vineeta Sharma Case)
“60.The amended provisions of Section 6(1) provide
that on and from the commencement of the Amendment Act,
the daughter is conferred the right. Section6(1)(a) makes
daughter by birth a coparcener “in her own right” and “in
the samemanner as the son”. Section 6(1)(a) contains the
concept of the unobstructed heritage of Mitakshara
coparcenary, which is by virtue of birth. Section 6(1)(b)
confers thesame rights in the coparcenary property “as she
would have had if she had been ason”. The conferral of right
is by birth, and the rights are given in the same manner with
incidents of coparcenary as that of a son and she is treated as
a coparcener in the same manner with the same rights as if
she had been a son at the time of birth.Though the rights can
be claimed, w.e.f. 9-9-2005, the provisions are of retroactive
application; they confer benefits based on the antecedent
event, and the Mitaksharacoparcenary law shall be deemed
to include a reference to a daughter as a coparcener.At the
same time, the legislature has provided savings by adding a
proviso that anydisposition or alienation, if there be any
testamentary disposition of the property or partition which
has taken place before 20-12-2004, the date on which the Bill
was presented in the Rajya Sabha, shall not be invalidated.”
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(Emphasis supplied).
...
72. As noted earlier, sub-section (5) of substituted
Section 6 of the Hindu Succession Act, 1956 provides that
nothing contained in the substituted Section 6 shall apply to a
partition, which has been effected before 20th December,
2004 (i.e., date on which the Bill corresponding to the
Amendment Act, 2005 was presented in the Rajya Sabha).
Explanation to the substituted Section 6 provides that for the
purposes of Section 6 “partition” means (i) any partition
made by execution of a deed of partition duly registered under
the Registration Act, 1908 (16 of 1908), or (ii) any partition
effected by a decree of a court.
73.Interpreting sub-section (5) of substituted Section 6
and Explanation to substituted Section 6, the Court in Vineeta
Sharma (supra), has observed in para 67 as under:
“67.The proviso to Section 6(1) and Section 6(5)
saves any partition effected before 20-12-2004.
However, Explanation to Section 6(5) recognises
partition effected byexecution of a deed of partition duly
registered under the Registration Act, 1908 or by a
decree of a court. Other forms of partition have not been
recognised under thedefinition of “partition” in the
Explanation.”
21.However, the learned counsel appearing for the respondents 4 and
5 also supported the claim of the plaintiff and prayed for the allotment of a
share in Items 1 and 2 of the suit properties, as they are the daughters of
Palani Gounder born through the first wife. Though they remained ex
parte they also added as respondents 4 and 5 therein, also contested the
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case through their co-sharers. In the suit filed for partition, all the parties
are entitled to defend their rights.
22. Heard the learned counsel appearing on either side and perused
the material available on record.
23. The plaintiff is the daughter of Palani Gounder and Nanjammal.
After the birth of the plaintiff, Nanjammal died, and immediately, her
father married his second wife, whose name was also Nanjammal, the 1st
defendant. They had two sons and two daughters through the second wife.
The defendants are the children of the second wife. The plaintiff claims
that the two items of the suit properties are ancestral properties of Palani
Gounder, which he enjoyed as joint family property until his demise in the
year 1995. However, he did not take care of the plaintiff, who was born to
his first wife. After the death of her mother, the plaintiff was brought up
by her maternal grandparents. Therefore, she demanded partition from her
father as well as the defendants. Furthermore, the second item of the
property was purchased by her father in the name of defendants 2 and 3, in
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which she claims 1/6 share along with the other daughters. At the time of
filing the suit, she claimed her share and 1/18 share in the share allotted to
her father. After the amendment of the Act, under Section 6(1), she filed a
separate application during the appeal to modify her share in the first item
of the property as the Trial Court granted the relief as prayed for.
24. The defendants 2 and 3, who are the plaintiff’s brothers born
through the second wife, contested the suit before the trial court, stating
that, with respect to the first item of the suit property, partition had already
been effected in the year 1984, in which only a limited interest was given
to their father. After his death, these two brothers divided the properties
among themselves as partition had already taken place, thereby contested
that the plaintiff is not entitled to claim any share through her father nor
entitled under the new Amended Act. In respect of the 2nd item of the
property, the defendants 2 and 3 claimed that they purchased the suit
properties out of their own earnings and therefore, they claimed as self
acquired property. Though the Trial Court granted the relief in favour of
the plaintiff, the learned First Appellate Judge set aside the findings by
accepted the defence taken by the defendants and dismissed the suit by
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allowing the Appeal Suit, holding that the plaintiff failed to prove her
claim in respect of the suit properties and thereby, she is not entitled to
claim any relief.
25.The relationship between the parties has been admitted. It is the
undisputed fact that the plaintiff born through Palani Gounder and his first
wife. After the demise of his first wife, Palani Gounder married the 2nd
wife Nanjammal who is the 1st defendant. They begot two sons and two
daughters. According to the plaintiff, the 1st item of the suit property is the
ancestral property. The defendants 2 and 3 also admitted the same. The
plaintiff stated that immediately after her birth, her mother passed away,
and she was brought up by her maternal grandparents. Neither her father
nor her brothers took care of her, and her marriage was performed by her
grandparents, not by her father. During his lifetime, the brothers who are
the defendants 2 and 3 created Partition Deed in respect of ancestral
properties without providing her any share, nor Sridhana or maintenance.
So, she demanded for amicable partition but her father evaded till his
demise.
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26.On perusal of the evidence, during the cross examination of DW1
also admitted that the plaintiff was brought up by her maternal
grandparents. The fact remains that she was under the care of maternal
grandparents since her mother died long ago. Therefore, she demanded
partition in the year 1986. During the lifetime of his father, the defendants
evaded to give share. Even after the death of her father, she demanded
partition but they denied, hence, the suit.
27. The defendants stated that in the year 1986 itself, she demanded
partition through notice for which they replied that already partition was
acted upon, thereby, they contended that the plaintiff was having
knowledge about the partition, but she has not objected immediately. Only
after ten years, after the death of their father, she filed the present suit, as
such, it is highly belated one and the same was observed by the First
Appellate Court. But, both the parties have not produced the said notice.
On seeing her evidence, she deposed that during life time of his father, she
approached her father for division of the property, but it was evaded by her
father. Thereafter, the defendants 2 and 3 also not inclined to give any
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share. Hence, after the issuance of notice in the year 1995, she filed the
present suit. Even at the time of trial, the defendants have not produced
the Partition Deed and therefore, she was not aware of the partition
claimed by the defendants 1 and 2.
28. On perusal of the evidence, it reveals that during the evidence of
DW.1 alone, the copy of the Partition Deed dated 04.07.1984 was marked
as Ex.B.1. But, the contention of the plaintiff is that the said Partition
Deed was not acted upon even assuming that it is true, but no share was
given to her since she being the daughter of his father Palani Gounder born
through his first wife Nanjammal. Further, it is seen that the recitals in the
Partition Deed show that it is the ancestral property divided among the
father and his two sons. There is no mentioning about the existence of the
daughters, namely, the plaintiff and the defendants 4 and 5 who born
through his second wife Nanjammal. Furthermore, the revenue records
like, Patta relied upon by the defendants show that only in the month of
January, 1995 alone, the alleged Ex.B.13 and Ex.B14 - Patta was issued in
the name of the defendants 2 and 3 and Ex.B.15 is in the name of Palani
Gounder which shows after the partition claim made by the 1st plaintiff in
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the year 1986. Therefore, immediately after the alleged partition, there
was no mutation of the records and the properties were jointly enjoyed by
the plaintiff's father and his sons.
29. Furthermore, after the death of the plaintiff's father, in the month
of October 1995, the defendants 2 and 3 have taken steps to change in their
name by producing the Legal heirship Certificate, but no notice was issued
to the plaintiff, as one of the legalheirs of their father and no notice was
issued by the Tahsildar also and nor proper enquiry was conducted. Patta
issued in the name of the defendants 2 and 3 also was not in accordance
with Law as rightly pointed out by the plaintiff. Some of the kist receipts
Ex.B.2 to EX.B.4, relied upon by the defendants were stood in the name of
their father and his two sons but it only meant for collection of revenue.
30. Some of the kist payments were made by their father and his two
sons even after 1984, indicating that the alleged Partition Deed was sham,
nominal, and never acted upon. The plaintiff, the eldest daughter of Palani
Gounder, as well as the other two daughters (defendants 4 and 5), are still
alive. On perusal of Ex.B.1 – Partition Deed, no reason was given for not
providing a share to the daughters, nor does it contain any recital that the
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plaintiff received sufficient Sridhana. The plaintiff proved that she was
brought up by her maternal grandparents, which DW1 admitted,
establishing that her father neither maintained her after her mother’s death
nor provided her with Sridhana during her marriage. Therefore, even
though Ex.B.1 is a registered instrument, the conduct of defendants 2 and
3 clearly reveals that the document was created fraudulently with the
ulterior motive of defrauding not only the plaintiff but also The defendants
4 and 5 who are all the daughters of Palani Gounder.
31. In support of these contentions, the learned counsel for
respondents 4 and 5/Defendants 4 and 5 relied on the Judgment of the
Apex Court in Vineeta Sharma vs. Rakesh Sharma and Others [(2020) 9
Supreme Court Cases 1], wherein the Apex Court held that for a
registered partition to be valid, it must be acted upon applying the said
proposition. Mere registration is not sufficient, and defendants 2 and 3
must prove that the partition was genuine and valid. Even assuming that at
the time of execution, daughters did not have coparcenary rights equal to
sons, the fact remains that no share was given to the daughters, even in the
portion allotted to their father. The recitals indicate that 1.90 acres were
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allotted to the father with limited interest for himself and his wife (the 1st
defendant), and thereafter, it devolved only upon the two sons. This clearly
indicates an unfair and fraudulent inequal partition which is not binding on
the plaintiff.
32. Moreover, the revenue records were not legally updated.
Therefore, the plaintiff has proved that Ex.B.1 – Partition Deed is neither
true nor acted upon, and does not bind her. The first appellate court
erroneously upheld the validity of Ex.B.1, which is liable to be set aside.
As there was no valid partition, the plaintiff and defendants 4 and 5, as
daughters of Palani Gounder, became coparceners under Section 6(1) of
the Hindu Succession (Amended) Act. The proviso Clause 6(5) of the Act
would not apply to the facts of the present case. Therefore, the plaintiff
and the defendants 4 an 5, as the daughters of Palani Gounder are
recognised and treated as Co-parceners by birth with equal rights as those
of his sons, the defendants 2 and 3. Accordingly, the Substantial Question
of Law (1) is answered.
33. With regard to the 1st item of the suit property, the plaintiff,
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along with defendants 2 to 5 and her father, is entitled to 1/6th share.
Additionally, in that 1/6th share of their father Palani Gounder, who died
intestate the plaintiff and defendants 1 to 5 are each entitled to 1/6th share.
Therefore, the findings rendered by the First Appellate Judge regarding the
1st item of the suit property are set aside.
34. Though at the time of filing the suit, the plaintiff claimed 1/18
share in the 1st item of the property, which was dismissed by the First
Appellate Court, however, she is entitled to avail the benefits under the
newly amended provisions even after the pending suit. In Prasanta
Kumar Sahoo vs. Charulata Sahu [(2023) 9 Supreme Court Cases 641],
at Para 107.1, the Supreme Court held as follows:
“107.We may draw our final conclusions as under:
(i)The preliminary decree drawn by the Trial
Court as affirmed by the High Court is modified to the extent
that the daughters are entitled to 1/3rd share in all the
properties scheduled in the plaint i.e., ancestral and self-
acquired properties of Late Shri Kumar Sahoo. The Trial
Court shall modify the decree accordingly.
(ii)As we have held that the settlement between
the Original Defendant Nos.1 and 2 reply was not in
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accordance with law, the Appellants herein will not be
entitled to the share of the Original Defendant No. 2.”
Therefore, the share claimed by the plaintiff with respect to the 1st item of
the property is modified. Hence, the findings rendered by the First
Appellate Judge regarding the 1st item of the suit property are set aside.
35. In respect of the 2nd item of the suit property, according to the
plaintiff, out of income from the ancestral property, which is the 1st item of
the property, her father purchased in the name of her brothers, the
defendants 2 and 3 in the year 1978. Therefore, she claimed 1/6 th share in
the 2nd item of the property along with other sharers.
36. Per contra, the defendants 2 and 3 denied the claim of the
plaintiff stating that the suit property was purchased by them under the
Sale Deeds Ex.B.2 and Ex.B.3 in the year 1978 out of their self earning
and not purchased by their father from the income derived from the
ancestral joint family properties nor it was enjoyed as the joint family
properties along with the 1st item of the property.
37. Countering to the same, the learned counsel for the appellant and
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the learned counsel for defendants 4 and 5 submitted that, in 1978,
defendants 2 and 3 were young (aged approximately 20 and 21) and did
not have any separate income. Instead, the income from the 1st item of the
suit property was used by their father to purchase the property in their
names. Moreover, the plaintiff successfully established the existence of an
ancestral nucleus. Therefore, the burden was upon defendants 2 and 3 to
prove that the property was purchased through their self-earned income.
38. Considering the SSLC Certificates of defendants 2 and 3,
marked as Ex.B.61 and Ex.B.62, the 2nd defendant was born on
06.04.1954, and the 3rd defendant was born on 14.02.1957. By 1975, they
had attained majority. They stated that before purchase, the 2nd item of the
property was in their possession and cultivated under thuf;Fj;jif (lease). To
substantiate this, they examined an individual witness, DW3. DW3
deposed that defendants 2 and 3 used to pay lease amounts and cultivate
the land. However, except the oral testimony, no independent material
evidence was presented to support this claim.
39. As rightly observed by the Trial Court, there is no evidence
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adduced to prove that they paid weekend lease amount. Besides DW3 is
very close to the defendants 2 and 3. During the cross examination, DW1
and DW2 admitted that their father managed the properties and also both
the properties were possessed and enjoyed jointly. Furthermore, they
admitted that from the 1st item of the suit property, his father earned
income near about Rs.20,000/- by doing agricultural works. Therefore, the
plaintiff successfully established that there was a sufficient ancestral
nucleus and proved that the 2nd item of the property was acquired with the
help of income derived from the ancestral nucleus and treated as joint
family property. The burden placed upon the plaintiff was rightly
discharged, demonstrating that income from the ancestral property was
used to purchase the 2nd item of the property. Defendants 2 and 3 failed to
prove they had independent income to acquire the property in their names.
The family had sufficient nucleus, surplus income and the party in whose
favour the sale deed stands had no income and therefore, it should be
presumed when the family was intact, the property should have been
purchased in the name of other co-parcener only for the benefits of all the
co-parceners. Thus, the plaintiff proved that it is a joint family property,
on the contrary. The defendants 2 and 3 failed to prove that it is their self
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acquired property.
40. But, the learned counsel for the respondents 2 and 3 argued that
there is no specific pleading by the plaintiff in respect of income derived
from the joint family property, without which she is not entitled to plead.
41. On considering the entire pleadings and evidence which clearly
indicates that out of income from the ancestral property, her father
purchased the 2nd item in name of the defendants 2 and 3. Therefore, there
is sufficient pleadings to that effect, hence, the said objection is
unsustainable in Law. Therefore, the burden is on the defendants 2 and 3
to prove that the 2nd item of the property is a self acquired property. As
discussed above, there is no material evidence to establish that the
defendants 2 and 3 are having separate income. But, they claimed that
during the lifetime of their father not objected which itself shows that it is
self acquired property of the defendants 2 and 3, so that, only it was
included in the partition which is sufficient to establish that it is the self
acquired property. However, law requires sufficient proof to establish that
the defendants 2 and 3 had separate income to purchase the 2nd item of the
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property, when they are aged about 22 and 23 years old. Their father was
doing agricultural works and earned sufficient income from the ancestral
property was proved by the plaintiff and this fact also admitted by DW1
during evidence. Eventually, the defendants 2 and 3 have failed to prove
that it is a separated property. Therefore, the 2nd item of the property is
also the ancestral joint family property in which the plaintiff along with
other sharers are equally entitled to share the properties. Hence, the
plaintiff is entitled to 1/6th share and her father is entitled to 1/6th share.
The defendants 2 and 3 and the defendants 4 and 5 each are entitled to 1/6th
share equally in the 2nd item of the suit property. In that, 1/6th share
allotted to their father who died intestate his share shall be given equally to
his legal heirs, who are the plaintiff and the defendants 1 to 5 each entitled
to 1/36th share. Therefore, in the 2nd item of the suit property, the plaintiff
is entitled to 7/36 share (1/6 + 1/36 = 7/36). The 1st defendant, mother is
entitled to 1/36 share in both items. The defendants 2, 3, 4, and 5 each are
entitled to 7/36 share in both the 1st and 2nd items of the suit properties.
Therefore, in the 1st item of the suit property, the plaintiff is entitled to
7/36 share and in the 2nd item of the suit property, she is entitled to 7/36
share. In the partition suit, all the parties are entitled to pay Court Fee to
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their respective share and can proceed with Final Decree proceedings.
42. Therefore, the findings rendered by the learned First Appellate
Judge are erroneous and are liable to be set aside. The Partition Deed does
not bind the plaintiff so also other daughters/the defendants 4 and 5. The
Substantial Question of Law (2) is answered accordingly.
In the result, the findings of the learned First Appellate Judge are set
aside. This Second Appeal is allowed. The suit is decreed by modifying
with the share of the plaintiff. Accordingly, in the 1st item of the suit
property, the plaintiff is entitled to 7/36 share and in the 2nd item of the suit
property, the plaintiff is entitled to 7/36 share and the 1st defendant is
allotted with 1/6 share in both items, the other defendants 2 to 5 each
entitled to 7/36 share in both the 1st and 2nd items of the suit properties. A
Preliminary decree is passed. If any party files a Final Decree application
with Court Fee the learned Trial Judge is directed to dispose of the same
within three months from the date of receipt of this judgment, since the
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case is pending more than 25 years and the plaintiff is the Senior Citizen,
aged 70 years. There shall be no order as to costs. Consequently, all
connected Miscellaneous Petitions are closed.
30.01.2025
Speaking / Non Speaking order
Neutral Citation : Yes/No
Index :Yes/No
mps
To
1.The Principal District Judge,
Coimbatore.
2.The Additional Subordinate Judge,
Coimbatore.
3.The Section Officer,
VR Section, High Court of Madras.
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T.V.THAMAILSELVI, J.
mps/rri
and CMPs
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30.01.2025
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