Subramanian v. Kumarayee Ammal (deceased) and another
2003-03-26
P.SHANMUGAM, PRABHA SRIDEVAN
body2003
DigiLaw.ai
P.Shanmugam, J.: The defendant is the appellant. The plaintiff is the mother of the defendant and she filed a suit O.S. No.176 of 1982 for partition and mesne profits against her own son. The said suit ws decreed. Against the judgment, the present appeal has been filed. Pending appeal, the plaintiff died and her daughter is arrayed as legal representative, without prejudice to the right of the parties with regard to the Will dated 13.7.1982. 2. The brief facts of the case are as follows: (The parties are described as per the ranking before the Sub Court). The plaintiff was married to one Kulanthaisamy Gounder. The said Kulanthaisamy Gounder inherited ancestral properties from his father and died on 15.1.1951, leaving the plaintiff and her minor son and daughter. The plaintiff was managing the suit property, including the self acquired property purchased in her name covered by Ex.B-1. The defendant married the brother’s daughter of the plaintiff and was living with her till December, 1979 and thereafter, drove her away and married another lady by name Suseela. The plaintiff, unable to continue to be an undivided member of the joint family with the defendant, filed the above suit for partition. According to her, as per the Hindu Women’s Right to Property Act, 1937, she is entitled to half share of the properties of her husband, which were the ancestral properties inherited by him and that her right has become absolute under the provisions of Hindu Succession Act, 1956. Therefore, she is entitled to one half share in all the suit items 1 to 9. 3. The defendant contested the claim of the plaintiff inter alia contending that the suit properties were joint family properties of Kulanthaisamy Gounder and the defendant. Subsequent to the death of his father in the year 1951, the defendant, as surviving co-parcener, is entitled to the entire joint family properties. He has further stated that the plaintiff has purchased the property covered by Ex.B-1 from and out of the joint family nucleus and therefore, the said property also is available for partition. He has also stated that since the income from the joint family properties was not adequate, he had incurred debts and therefore, each member of the joint family is also liable for the debts incurred in that manner and prayed for the dismissal of the suit. 4.
He has also stated that since the income from the joint family properties was not adequate, he had incurred debts and therefore, each member of the joint family is also liable for the debts incurred in that manner and prayed for the dismissal of the suit. 4. The learned Subordinate Judge, after considering the oral and documentary evidence, passed a preliminary decree for partition of 1/2 share of the properties in item Nos.1 to 9 and has also held that Item No.10 of the properties is a self acquired property of the plaintiff and further held that the alleged debts incurred, will not bind the joint family. 5. We have heard the counsel on either side and considered the matter carefully. 6. The following three questions arise for consideration in this appeal: (i) Whether the plaintiff- mother is entitled to half share in the ancestral properties? (ii) Whether item No.10 is a self acquired property or the property acquired out of the joint family income and is available for partition? (iii) Whether the debts incurred by the defendant are joint family debts, payable from the income of the joint family properties? 7. The case of the plaintiff is that she was married to Kulanthaisamy Gounder and that he inherited the ancestral property and he died on 15.1.1951, leaving behind the plaintiff, her minor son and daughter. Therefore, when the husband died in the year 1951, the question is whether the widow is entitled to a share in that properties. The case of the defendant is that being ancestral properties, he is the only member entitled for the whole extent of the properties and his mother is not entitled for any property. 8. As per Sec.3 of the Hindu Women’s Rights to Property Act, 1937, a widow shall be entitled to have the same interest as that of her deceased husband. Mulla Hindu Law, 18th Edition, page 385 contains the discussion on the claim raised in this case. The learned author in this context states as follows: “The right which was conferred on the widow by Sec.3 of the Hindu Women’s Right to Property Act, 1937, as has already been pointed out, was not a right which was inchoate or imperfect till a claim for partition was made.
The learned author in this context states as follows: “The right which was conferred on the widow by Sec.3 of the Hindu Women’s Right to Property Act, 1937, as has already been pointed out, was not a right which was inchoate or imperfect till a claim for partition was made. The undivided interest of the husband in the joint family property devolved upon the widow immediately on the death of the husband and in the eyes of law she would be in possession of her interest in that property. The effect of the present section is to transform that statutory interest of the widow of which she was a limited owner into that of a full owner. The fact that she had not sought any partition before the present Act came into force in 1956 makes no difference. Similarly, where at the time of her death the widow was in possession of her share of the property to which she became entitled under the Hindu Women’s Right to Property Act, 1937, that share or that property would devolve upon her heirs and the latter would be entitled to prosecute a suit for partition filed by the widow”. 9. Therefore, applying the provisions, it is seen that the plaintiff is entitled to the undivided interest of the husband in the joint family properties which evolved upon the widow immediately on the death of her husband. The said interest, by virtue of Act 14 of Hindu Succession Act, transforms that statutory interest of the widow, of which she wss a limited owner, into that of a full owner. Therefore, the plaintiff is entitled to half share in the suit properties excluding item No.10. The conclusion of the learned Subordinate Judge in this regard, therefore, is correct. 10. In so far as item No.10 of the suit properties, which is covered by Ex.B-1 is concerned, the case of the defendant is that though this property stands in the name of the plaintiff, the property was purchased out of the joint family income and therefore, it is available for partition. However, the Court below after considering the evidence on record, rejected the claim of the defendant. 11.
However, the Court below after considering the evidence on record, rejected the claim of the defendant. 11. We find from the records that the said property in item No.10 was purchased by the plaintiff in her name and her case is that there was no surplus income from the joint family lands so as to purchase the said property. However, she was given 40 sovereigns of gold at the time of her marriage, besides 5 sovereigns provided by her husband. She had utilised those jewels for the purpose of purchasing this property. Though there is no other documentary evidence in support of her claim, the following facts will reveal that this property was treated as her separate property: (i) The defendant separated, was managing the rest of the properties except the property covered by Ex.B-1. (ii) The plaintiff was managing this property on her own till her death. (iii) A portion of the said property to an extent of 1.50 acres was acquired by the Government for forming a road and compensation was exclusively claimed and paid to the plaintiff and the defendant did not raise any objection nor claimed any share in the compensation. 12. From the above, it is clear that the case of the plaintiff that the said property had been purchased in her own name, stood in her name and had been treated as a separate property, has to be accepted. 13. In this context, reliance is placed on the judgment of Ranganayaki Ammal v. Srinivasan, (1978)1 M.L.J. 56 , wherein a Division Bench of this Court has taken a view that it is by now established that properties standing in the names of the female members are their own unless there is definite clinching proof to the contrary, adduced by the challenging member. 14. Applying the above principle to the facts and circumstances of the case, we do not find any error in the conclusion of the learned Subordinate Judge on this aspect. 15. Lastly, the question is whether the debts incurred by the defendant are joint family debts or not. It is seen from the records that all the exhibits filed to prove the contentions are in the form of five promissory notes and out of these five, four promissory notes were executed for the purpose of digging a well.
15. Lastly, the question is whether the debts incurred by the defendant are joint family debts or not. It is seen from the records that all the exhibits filed to prove the contentions are in the form of five promissory notes and out of these five, four promissory notes were executed for the purpose of digging a well. As rightly pointed out by the learned counsel for the plaintiff, in all these promissory notes, the attestor is one Periyasamy and the period of borrowal is 1979-1980. Excepting the recitals found in the promissory notes, there is no other documentary evidence to link the utilisation of this fund for digging the well. 16. When the defendant has claimed that he had obtained the loan for the purpose of installing electric motor, oil engine and obtaining service connection, he has to prove the same by filing necessary documents. But no documentary evidence is forthcoming to prove the expenses towards the digging of the well. The burden is on the defendant to show that all these promissory notes are for the benefit of the joint family lands. In the absence of any other materials, we do not find any error in the conclusion of the learned Subordinate Judge. 17. For all these reasons, we hold that the appeal fails and the same is dismissed accordingly. No costs. 18. Since the plaintiff is dead and the defendant being one of the legal heirs, the question relating to his share of the property is left open.