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2018 DIGILAW 3509 (MAD)

R. Pankajam v. Lakshmi Ammal

2018-10-04

R.THARANI

body2018
JUDGMENT R. Tharani, J. Heard Mr.G.Gomathi Sankar, learned counsel appearing for the appellant and Mr.A.Hariharan, learned counsel appearing for the respondent. 2. This appeal is filed to set aside the Judgment and Decree dated 28.06.2011 passed in A.S.No.204 of 2007 on the file of the Additional Sub Court, Dindigul confirming the judgment and decree dated 21.04.2007 passed in O.S.No.135 of 2006 on the file of the learned Principal District Munsif, Dindigul. 3. The respondent is the plaintiff and she filed a suit before the learned District Munsif, Dindigul for a prayer of declaration and mandatory injunction against the appellant herein. The contention of the respondent in the suit is that the respondent got married in the year 1954. The father of the respondent purchased the suit property on 29.08.1959 in the name of the respondent and hand over the same to her as Sethana property and the respondent was running a idly shop and from the amount given by her father and through the income she derived from the idly shop, she constructed a house in the suit property. The respondent enjoyed the property and was paying the tax receipts and EB connection and during the year 1997. The appellant was married in the year 1977 and she lived at Bangalore. 4. The appellant requested the respondent for permission to reside in the upstairs of the house and the respondent permitted the appellant to reside in the upstairs of the house. During November 2005, due to heavy rain, there was much damage caused to the property and the house is 2 ft lower than the road level and the respondent asked the appellant to vacate the house for renovation work. The appellant refused to do so and filed a complaint before the Dindigul West Police Station on 20.11.2005 against the respondent. The appellant has sent a legal notice on 06.12.2005. The respondent has sent a reply notice on 20.12.2005. After that the respondent has filed O.S.No.135 of 2006 before the learned District Munsif, Dindigul. 5. The case of the appellant/defendant is that the respondent and her husband got 5 sons and the appellant is the daughter of the respondent. It is denied that the property was purchased in the name of the plaintiff as seethana property. The property was purchased by the father of the appellant in the name of the respondent. 5. The case of the appellant/defendant is that the respondent and her husband got 5 sons and the appellant is the daughter of the respondent. It is denied that the property was purchased in the name of the plaintiff as seethana property. The property was purchased by the father of the appellant in the name of the respondent. The appellant was married to her maternal uncle and she was not given any seethana at the time of marriage. The house was not maintained by the respondent alone, the appellant has paid Rs. 40,000/- (Rupees Forty Thousand only) for the maintenance of the house. The property is in good condition and there is no necessity to do any maintenance work. The appellant is having a share in the suit property. 6. The respondent has examined two witnesses and marked 11 documents and the appellant has examined two witnesses and marked 8 documents. The learned District Munisf considering the evidence and documents decreed the suit on 21.04.2007. Aggrieved by that order, the appellant filed an appeal before the Sub Court, Dindigul in A.S.No.204 of 2007. After hearing both sides, the Sub Court, Dindigul dismissed the appeal and confirmed the Judgment of the lower Court. Aggreived by that Judgment, the appellant has filed this present appeal. 7. In the grounds of appeal, the learned counsel appearing for the appellant has raised three questions, which are reads as follows: "(a) whether the Court below correctly decreed the suit when the plaintiff has not proved that the property comes under the sreethana in exhibit A1? (b) whether the Court below are correctly decreed the suit property in favour of the respondent/plaintiff when the appellant/defendant is having 1/5 share? (c) whether the Court below are correctly analysed the contention of exhibit A1?" 8. All the points raised by the appellant are almost the same. The point to be decided in this appeal is that whether the lower Court is correct in decreeing the suit? 9. On the side of the appellant, it is stated that the property mentioned in Ex.A1 is not the seethana property of the respondent and the trial Court has failed to consider the same. On the side of the appellant, it is stated that the sale deed Ex.A1 does not contain any wordings about the property being purchased as seethana property. On the side of the appellant, it is stated that the property mentioned in Ex.A1 is not the seethana property of the respondent and the trial Court has failed to consider the same. On the side of the appellant, it is stated that the sale deed Ex.A1 does not contain any wordings about the property being purchased as seethana property. The property was purchased the appellant's father in the name of the respondent. The appellant is having, share in the property. The lower Court has failed to consider the issue whether the property was ancestral property or the self acquired property of the appellant's father. The appellant is in possession of the property for more than 15 years which was admitted by the respondent herein and the lower Court has failed to consider the same. 10. The learned counsel appearing for the appellant relied on the Judgment passed by the Hon'ble Supreme Court in the case of Surendra Kumar v. Phoolchand(Dead) through lrs. And another, (1996) 2 SCC 491 , which reads as follows: "Property purchased by Manager of joint family in the name of the appellant who was then minor- Absence of material to establish that consideration money was paid out of appellant's separate funds- concurrent findings of the Courts below that the property in question was joint property- such findings of fact made bearing in mind the correct legal position- No interference by the Supreme Court called for- Practice and procedures" 11. It is further argued that the respondent has to prove that the money for the purchase of the property was paid out of her personal fund. 12. On the side of the respondent, it is stated that Ex.A1 shows that the property was purchased only in the name of the respondent in her own name. Exs.A2 to A6 are the house tax receipts and EB receipts in the name of the respondent, Exs.A7 to A9 are the E.B receipts . Ex.A10 is the notice. Ex.A11 is the reply notice. It is further argued that whatever be the source of income the right of the women to a property in 1956 becomes absolute. 13. On the side of the respondent, it is stated that the appellant failed to establish that her father was having sufficient fund out of which the suit property was purchased by him in the name of the respondent. 13. On the side of the respondent, it is stated that the appellant failed to establish that her father was having sufficient fund out of which the suit property was purchased by him in the name of the respondent. It is the duty of the respondent to prove that there was sufficient fund for her father to purchase the property in her name. In support of his contention, the Judgment passed by the Hon'ble Supreme Court in the case of Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade and Others, (2007) 1 SCC 521 is cited. 14. The learned counsel appearing for the respondent relied on the Judgment passed by the Hon'ble Supreme Court in the case of V.Tulasamma and Others v. Sesha Reddy (Dead) through lrs., (1977) 3 SCC 99 , which reads as follows: "Hindu Succession Act, 1956 - Section 14(1) and (2)-Sectin 14(2) is in the nature of a proviso to Section 14(1), and must be construed strictly without impinging on the amplitude of Section 14(1)-Section 14(1) applies to properties granted to a female Hindu in virtue of a pre-existing right of maintenance- Section 14(2) applies when property is granted to a female Hindu for the first time without any pre-existing right" 15. The learned counsel appearing for the respondent relied on the Judgment passed in the case of Alamelu and Others v. Lakshmi and Others, (2015) 2 CTC 382 , which reads as follows: "Property acquired by female Hindu by inheritance before or after commencement of Act, shall be held by her as full owner and not as limited owner - Plaintiffs are not entitled to claim any right upon suit property- Concurrent Judgment of Court below affirmed-second appeal dismissed." 16. The learned counsel appearing for the respondent relied on the Judgment passed in the case of Gangamma etc. v. G.Nagarathnamma and Others etc, 2009 3 TNCJ 79 (SC), which reads as follows: "Hindu Succession Act, 1956-Section 14(1)-Succession-Property in name of female appellant-appellant full owner of those properties-no evidence that properties were joint in nature-Hence, order of portion from properties of appellant set aside." 17. On the side of the appellant, it is stated that the respondent in her evidence has stated that at the time of her marriage, no seethana was given to her and for that purpose only her father purchased the property in her name. On the side of the appellant, it is stated that the respondent in her evidence has stated that at the time of her marriage, no seethana was given to her and for that purpose only her father purchased the property in her name. It is interpreted by the appellant that the respondent has admitted that her father has no source of income whereas the case of the appellant is that the appellant's father has not given anything to her at the time of marriage. Written statement reveals that the father of the appellant who is also not having any source of income. So the contention of the appellant is not correct. The appellant has stated that she was running an idly shop and with that income, she constructed the house. This statement was not denied by the appellant in her written statement. 18. Ex.A1 is the document in the name of respondent. The property in the name of the female is her absolute property. The appellant fails to establish that the consideration for the sale was given by respondent's husband. As per Section 14(1) of Hindu Succession Act, the property in the name of a female absolutely belong to that individual. There is a concurrent findings by both the Courts below. Exs.A2 to A9 reveals that the house was in the enjoyment of the respondent. The appellant failed to prove that the house was maintained by her also. Even though the appellant is in possession of a portion of the house, she is in permissible possession. 19. The case of the respondent is that her father purchased the property in her name. The case of the appellant is that the respondent's husband purchased the property in the name of the respondent. The property lies in the name of the respondent and it is the duty of the appellant to prove that the property was not the absolute property of the respondent. The appellant failed to prove that her father who is the husband of the respondent has sufficient source of income and he has contributed for the consideration of the sale deed. 20. All the points raised by the appellant are only question of facts. In the above circumstances, there is no substantial question of law to be decided in this case. 20. All the points raised by the appellant are only question of facts. In the above circumstances, there is no substantial question of law to be decided in this case. The appellant has failed to prove that there is a question of law arising out of the fact of this case. There is nothing to interfere in the Judgments of the lower Court. This Second Appeal is dismissed. No Costs. Consequently, M.P.(MD)No.1 of 2015 is closed.