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2015 DIGILAW 1858 (MAD)

Gomathi Ammal v. S. Arunachalam

2015-04-09

P.R.SHIVAKUMAR

body2015
Judgment :- 1. The appellant Gomathi Ammal is the sister of Arunachalam and Sethuramalingam, the respondents 1 and 2. She filed a suit in O.S.No.68 of 2007 for the relief of partition and separate possession of her share in the suit properties, claiming that she was entitled to 1/3 share. The appellant herein/plaintiff based her claim on the basis of the following pleadings made in her plaint: 2. The suit properties were purchased by their father late Sankara Pattar and he died in the year 1953 leaving behind him his widow Maragathammal, daughter Gomathiammal (appellant herein/plaintiff) and sons viz., Arunachalam and Sethuramalingam, the respondents herein/defendants. All the four persons jointly enjoyed the properties left by late Sankara Pattar. While so, in the year 2004, Maragathammal, mother of the parties to the appeal died intestate, leaving behind the appellant and respondents as her legal representatives. After the death of their mother, the appellant and respondents 1 and 2 enjoyed the suit properties without partition. The circumstances that arose subsequently made the appellant to seek for the division of the properties and for giving her share to her. But the request was not heeded to by the respondents. Hence she was forced to approach this Court with the plaint for the relief of partition and separate possession. 3. In the plaint, the appellant herein/plaintiff claimed that she was entitled to 1/3 share in the suit properties. 4. The suit was resisted by the respondents herein/defendants contending that the suit properties were coparcenary properties, since they were purchased by Sankara Pattar out of the income derived from the joint family nucleus, that as such on the death of Sankara Pattar in the year 1953, except the respondents herein/defendants, no other person got any share, either absolute or limited, in them and that therefore the claim of the appellant herein/plaintiff for partition on the basis of her plaint plea that she was entitled to 1/3 share could not be sustained and the same should be rejected as untenable. 5. The learned Trial Judge (Subordinate Judge, Sankaran Kovil), after trial, decreed the suit as prayed for and granted a preliminary decree directing division of the suit properties into three equal shares and allotment of one such share to the appellant/plaintiff. 5. The learned Trial Judge (Subordinate Judge, Sankaran Kovil), after trial, decreed the suit as prayed for and granted a preliminary decree directing division of the suit properties into three equal shares and allotment of one such share to the appellant/plaintiff. As against the preliminary decree dated 30.1.2009 passed by the Trial Court in O.S.No.68 of 2007, the respondents herein/defendants preferred an appeal before the Principal District Judge, Tirunelveli (the lower Appellate Judge) in A.S.No.25 of 2009. The learned Principal District Judge, Tirunelveli, after hearing the appeal, referring to the amendments made to the Hindu Succession Act, 1956 (both State and Central) and holding that the benefits of those amendments would not be available to the appellant herein/plaintiff and holding further that the appellant herein/plaintiff miserably failed to prove that the suit properties were the self-acquisitions of Sankara Pattar, allowed the appeal, set aside the decree passed by the Trial Court and dismissed the original suit filed by the appellant herein. 6. As against the said decree of the lower appellate Court dated 13.7.2010 made in A.S.No.25 of 2009, the appellant herein/plaintiff has preferred the present Second Appeal on various grounds set out in the memorandum of grounds of second appeal. Notice before admission was issued to the respondents and the respondents entered appearance long back in 2013 itself. 7. The following are the substantial questions of law that requires to be answered in the present second appeal:- “1) Whether the lower appellate Court has committed an error in law in casting the burden on the plaintiff to prove that the suit properties were the self-acquisitions of her father Sankara Pattar, despite the fact the respondents/defendants had admitted that they were the properties purchased by Sankara Pattar, that too in the absence of any evidence to prove that the joint family consisting of Sankara Pattar and his sons had no other income than the joint family income and hence the same could have been used for the purchase of the properties in question? 2) Whether the Courts below have committed an error in law in not properly construing the plea of the appellant herein/plaintiff as to how she traces her right to a share in the suit properties? 2) Whether the Courts below have committed an error in law in not properly construing the plea of the appellant herein/plaintiff as to how she traces her right to a share in the suit properties? 3) Whether the lower appellate Court has committed an error in not considering the effect of Section 14 of the Hindu Succession Act, 1956 on the share of Maragathammal, the wife of Sankara Pattar?” 8. The arguments advanced by Mr. S.Subbiah, the learned counsel for the appellant and that of Mr. S.Meenakshi Sundaram, the learned counsel on record for the respondents are heard. The judgments of the Courts below and the materials available in the records sent for from the Courts below are also taken into consideration. 9. There is no controversy over the fact that father of the parties to the appeal viz., Sankara Pattar died in 1953 i.e., before the Hindu Succession Act, 1956 came into force. There is also no quarrel over the proposition that even the Hindu Women Rights to Property Act, 1937 did not confer any right on the wife or daughter in respect of the interest held by a person in the coparcenary property. The said Act dealt with only the rights of succession in respect of the absolute properties of a Hindu dying intestate. Even then the Hindu widow's share was subject to a restriction that she was not given any power of alienation and hence the estate of such widow was called a Hindu Widow's Estate. However, on the advent of Hindu Succession Act, 1956, the said restriction was removed subject to a condition that limited estate holder was in possession of the property when the Act came into force. Thus, the enlargement of limited estate into an absolute estate has been contemplated under Section 14 of the Hindu Succession Act, 1956. 10. There is no controversy over the proposition that even if at all the suit properties were the self-acquired properties of Sankara Pattar, on his death the plaintiff (appellant) would not have been a legal heir entitled to succeed to his properties. According to appellant, Sankara Pattar was survived by four of his relatives viz., the appellant (daughter), the respondents (sons) and Maragathammal (wife). According to appellant, Sankara Pattar was survived by four of his relatives viz., the appellant (daughter), the respondents (sons) and Maragathammal (wife). However she cannot stake a claim that she was one of the legal heirs of Sankara Pattar, entitled to equal share along with brothers and mother as he died in 1953, much prior to Hindu Succession Act, 1956 coming into force. Therefore, the plea made in the plaint that all the four, including the plaintiff, were the legal heirs of Sankara Pattar on his death, is of no consequence and the same has to be disregarded as inappropriate pleading. 11. However, the later part of the pleadings made in the plaint is to the effect that the suit properties were jointly enjoyed by Maragathammal and the parties to the present appeal; that on the death of Maragathammal in the year 2004, the appellant started enjoying the properties jointly with the respondents and that on that basis she is entitled to a share in the suit properties. However forgetting the consequences of change made by Hindu Succession Act, 1956 and misunderstanding the customary Hindu law prior to 1956 as amended by Hindu Succession Act, 1956, the appellant/plaintiff had contended that she was entitled to 1/3 share in the suit properties. 12. The learned Trial Judge, on appreciation of evidence, rendered a finding that the suit properties were the self-acquisitions of Sankara Pattar. However, without applying the principles of law recognised under the customary Hindu law applicable to Hindus prior to 1956, the learned Trial Judge chose to hold the appellant herein/plaintiff to be a legal heir of Sankara Pattar having equal right with that of each one of the sons of Sankara Pattar. Accordingly, the learned trial Judge held that the appellant herein/plaintiff was entitled to 1/3 of the suit properties, which resulted in granting of a preliminary decree as prayed for. 13. Accordingly, the learned trial Judge held that the appellant herein/plaintiff was entitled to 1/3 of the suit properties, which resulted in granting of a preliminary decree as prayed for. 13. On appeal, the learned Principal District Judge, losing sight of the admission made by DW.1 and disregarding the fact that no reliable evidence was adduced by the respondents herein to show the existence of joint family nucleus surplus income being derived from the joint family nucleus, held that the appellant herein, who was the respondent before the lower Appellate Court, was bound to prove that the properties acquired by late Sankara Pattar were the self-acquisitions made with the help of his personal earnings and without diverting funds derived from the income of the joint family nucleus. The learned lower Appellate Judge, without properly considering on whom the burden of proof in such cases shall lie, chose to cast the burden on the plaintiff and ultimately held that the plaintiff was not able to prove the self-acquisitions made by Sankara Pattar. Such an approach, as rightly pointed out by the learned counsel for the appellant, is against the recognised principles of law of evidence and the burden of proof. 14. There cannot be any presumption that there was a joint family or that such joint family did possess properties constituting joint family nucleus. Unless it is proved that there was a joint family nucleus capable of yielding surplus income, there cannot be any presumption that the income derived from joint family property was utilised for the purchase of the properties in the name of any one of the members of the joint family. The burden of proving the joint family income being used for acquisition of property in the name of Kartha shall be of a lesser degree than the burden of proof in respect of purchases made by other members of the family. 15. In the case on hand, though the respondents herein/defendants had taken a pleading that there was a joint family nucleus and the income derived from the joint family nucleus was used for purchasing the properties in question by Sankara Pattar, the first respondent Arunachalam, who figured as DW.1, made a clear and candid admission that their father Sankara Pattar did have income from his avocation as a Pattar, employed in the temple. For better appreciation, the relevant portion of his testimony in vernacular is reproduced hereunder:- “TAMIL” 16. Despite there being such an admission, the learned lower Appellate Judge has wrongly cast the burden on the plaintiff to prove that the entire consideration for the acquisition of properties in question was from the self earnings of Sankara Pattar and no part of the income derived from the joint family nucleus was used for acquisition of the same. Such an approach is totally against the recognized principles of burden of proof. 17. For all the reasons stated above, this Court comes to the conclusion that the learned lower Appellate Judge ought not to have interfered with the findings of the trial Court that the suit properties were the self-acquired properties of Sankara Pattar and that the contrary finding rendered by the lower Appellate Court deserves to be interfered with and set aside by this Court in exercise of its appellate powers in the second appeal. Accordingly, the first substantial question of law is answered. 18. Though the appellant herein/plaintiff referred to the death of her father in the year 1953 and her joint enjoyment of the suit properties with the respondents and their mother Maragathammal till the death of Maragathammal in 2004, that cannot be the basis of which she can sustain her claim to a share in the suit properties. The appellant/plaintiff cannot successfully make a claim for share on the premises that she was one of the legal heirs of Sankara Pattar entitled to succeed to his properties in equal shares along with her mother and brothers. Such a claim is bound to be rejected in toto, because succession to the estate of Sankara Pattar opened in 1953, and as per the law applicable to Hindus in this country at that point of time, the appellant was not a legal heir entitled to get a share. However, if she makes a claim on the basis that on the death of her father, her mother Maragathammal became entitled to equal share to that of her sons, of course with the limitation that it would have been a widow's estate without any power of alienation, and the same got enlarged into an absolute estate, by virtue of Section 14 of the Hindu Succession Act, 1956, her claim would be very well sustainable as a legal heir of Maragathammal, who died admittedly in 2004. The 1/3 share of Maragathammal on her death would devolve upon her children viz., the appellant and the respondents in equal shares, provided she died intestate. It is not the case of any one that Maragathammal died leaving any Will and it is an admitted fact that she died intestate. On the death of Sankara Pattar in 1953 Maragathammal and each one of his two sons got 1/3 share in the suit properties. Of course the 1/3 share of Maragathammal was only a limited estate with right to enjoy till her life time without power of alienation. Admittedly, she was in joint possession of the suit properties along with her two sons, namely the respondents herein, when the Hindu Succession Act 1956 came into force. By virtue of Section 14, the limited estate got enlarged into an absolute estate. Accordingly, she became entitled to 1/3 share without any restriction. On the death of Maragathammal in 2004, her daughter (appellant/plaintiff) and her two sons (respondents 1 and 2) succeeded to her 1/3 share with equal rights, as she admittedly died intestate. Thus the appellant/plaintiff became entitled to 1/3 of her mother's 1/3 share (viz. 1/9 share) in the suit properties. Thus the appellant /plaintiff shall be entitled to 1/9 share as against 1/3 share claimed by her in the plaint. The 2nd and 3rd substantial questions of law are answered accordingly. 19. In view of the answers given to the substantial questions of law 1 to 3, this Court comes to the conclusion that the lower appellate Court was wrong in totally non-suiting the appellant/plaintiff for the relief of partition. However, the learned trial Judge has also committed an error in holding the appellant/plaintiff to be entitled to 1/3 share in the suit property. The preliminary decree passed by the trial Court is liable to be modified by declaring the share of the appellant/plaintiff to be 1/9 and not 1/3 as claimed by her. She shall be entitled to a lesser relief that what was claimed by her. 20. In the result, the second appeal is allowed in part setting aside the decree of the lower Appellate Court in A.S.No.25 of 2009 and modifying the preliminary decree of the trial Court made in O.S.No.68 of 2007 declaring the share of the appellant herein/plaintiff to be 1/9 and not 1/3 as claimed in the plaint. No costs.