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2021 DIGILAW 242 (MAD)

Valliammal v. Sumathi

2021-01-20

N.SATHISH KUMAR

body2021
JUDGMENT : (Common Prayer: These Appeal Suits are filed under Section 96 of the Code of Civil Procedure, against the judgment and decree made in O.S.No. 32 of 2002 dated 24.11.2003 on the file of the Principal District Judge, Karur.) 1. These two appeals are filed as against the judgment and decree passed in O.S.32 of 2002 dated 24.11.2003. 2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court. 3. The brief facts, leading to the filing of this Appeal Suit, are as follows:- (i) The plaintiffs are the husband and wife and their only son is Diravidamani, whose wife is the first defendant. Their son met with an accident and died on 21.02.2001. The second defendant is supporting the first defendant and the third defendant is the partnership firm. (ii) The suit properties are the joint family property. Item Nos.1 to 4 were purchased in the name of the deceased Diravidamani. Thereafter, Item No.6 was also purchased out of the funds of the joint family and registered in the name of the first defendant and other items are also joint family property. After the death of the son of the plaintiffs, there was a misunderstanding between the plaintiffs and the first defendant in dividing the suit properties. Hence, the suit. 4. Denying the fact that the suit properties are joint family properties, the first defendant contended that during the life time of Dravidamani, the suit properties had already been partitioned and the plaintiffs are not entitled to any share. The second defendant also disputed the claim of the plaintiffs and denied the allegations of the plaintiffs in support of the first defendant. It is also stated by the first defendant that Item No.6 is her absolute property. The third defendant has also filed documents to that effect that the first defendant was never a partner in the company and the third defendant is not a necessary party in the suit. 5. Based on the pleadings, the trial Court has framed the following issues:- (1) Whether the suit properties are ancestral properties belonged to the plaintiffs and their deceased son? (2) Whether Item Nos.1 and 2 properties shall be partitioned? (3) Whether the deposit of Rs.4 lakhs made in the third defendant's company, which is shown as Item No.5 is true? 5. Based on the pleadings, the trial Court has framed the following issues:- (1) Whether the suit properties are ancestral properties belonged to the plaintiffs and their deceased son? (2) Whether Item Nos.1 and 2 properties shall be partitioned? (3) Whether the deposit of Rs.4 lakhs made in the third defendant's company, which is shown as Item No.5 is true? (4) Whether the plaintiffs are entitled to 3/4 share in the suit property? (5) Whether the second and third defendants are necessary parties to the suit? (6) Whether the plaintiffs are entitled to the relief of permanent injunction? (7) To what other reliefs? 6. Based on the above findings, on the side of the plaintiffs P.Ws.1 to 5 were examined and Exs.A1 to A20 were marked and on the side of the defendants D.Ws.1 to 3 were examined and Exs.D1 to D13 were marked. 7. On the basis of the evidence and materials, the trial Court found that the plaintiffs are not entitled to partition in respect of the movable property in Item Nos.1, 2, 4 and 5. Similarly, the trial Court has also dismissed the suit in respect of Item No.6, holding that the same is a self acquired property of the first defendant, however, granted preliminary decree in respect of Item Nos.7 to 14 allotting 1/4 share to the first defendant and 3/4 share to the plaintiffs. Aggrieved over the same, these appeals came to be filed. 8. A.S.(MD)No.850 of 2004 was filed by the plaintiffs themselves against the rejection of their claim for partition in respect of the vehicles particularly item Nos.1, 2 and 4 and also against the dismissal of the suit in respect of Item No.6. The first defendant has filed an appeal in A.S. (MD)No.169 of 2006 challenging the finding of the trial Court granting partition in respect of Item No.13, treating it as a joint family property, despite the fact that it is a self acquired property. 9. Heard the learned counsel appearing on either side and also perused the entire materials available on record. 10. It is the main contention of the learned counsel appearing for the appellants in both the appeals that the issue is mainly with regard to Item No.6 of the suit properties. 9. Heard the learned counsel appearing on either side and also perused the entire materials available on record. 10. It is the main contention of the learned counsel appearing for the appellants in both the appeals that the issue is mainly with regard to Item No.6 of the suit properties. It is the contention of Mr.M.P.Senthil, learned counsel for the plaintiffs that in view of the Full Bench Judgment of the Hon'ble Supreme Court in the case of Vinit Sharma and Rakesh Sharma and others [2020 5 CTC 302], the shares allotted to the first defendant in the joint family property will be reduced to 1/6 share. It is further submitted that the original plaintiff/ second plaintiff also died and daughters had been brought on record in the present appeals and they have also executed a Will in respect their shares in favour of the original plaintiff. 11. The said fact is not denied by the contesting first defendant. Hence, it is the contention that as far as Item Nos.7 to 12 and 14 are concerned, the first plaintiff is entitled to 1/6 share in the ancestral properties. The learned counsel appearing for the first defendant submitted that since the Will has been executed during pendency of the suit proceedings out of strain relationship, it was not disputed. Further, it is the contention that as far as Item No.6 is concerned, the same stands in the name of the first defendant and the trial Court has clearly considered the above aspect. Therefore, it cannot be considered as a joint family property at any stretch of imagination. The first defendant concerns only with regard to Item No.6 of the property and she has also not disputed the latest legal position declared by the Hon'ble Apex Court in the case cited above. 12. In the light of the above submissions, now the points arise for consideration in this appeal are:- (1) Whether the plaintiffs have established the existence of the movable property to claim any partition? (2) Whether the sixth item of property is a joint family property? (3) What is the nature of the shares the parties are entitled? 13. The relationship between the plaintiffs and the first defendant is not in dispute. The first defendant is the daughter-in-law of the plaintiffs and she married the plaintiffs' son Diravida Mani, who was died on 21.02.2001 in an accident. (3) What is the nature of the shares the parties are entitled? 13. The relationship between the plaintiffs and the first defendant is not in dispute. The first defendant is the daughter-in-law of the plaintiffs and she married the plaintiffs' son Diravida Mani, who was died on 21.02.2001 in an accident. The plaintiffs have claimed partition in respect of all the suit properties. Admittedly, Item Nos.1, 2, 4 and 5 are the movable properties. Item Nos.1, 2 and 4 are the vehicles, said to be in possession of the first defendant. However, the trial Court after considering the entire evidence, dismissed the suit in respect of Item Nos.1, 2 and 4. Similarly, in respect of Item No.5, which is the fund said to be deposited in a finance company, the trial Court also negatived the claim of the plaintiffs on the ground that no sufficient evidence is produced by the plaintiffs. With regard to Item No.6, the trial Court has elaborately discussed that the property purchased in the name of the first respondent and held that there was no evidence to show that the same has been purchased only out of the joint family income. 14. The trial Court treated Item Nos.7 to 14 as joint family property and granted shares to the parties to the suit equally. It is to be noted that Item No.13 was already shown as Item No.6 and the trial Court having held that Item No.6 is a separate property, mistakenly given a direction to treat Item No.13 as joint family property due to oversight and granted decree. It is to be noted that the said finding is only due to oversight. 15. As far as Item No.6 is concerned, the property is admittedly purchased by the first defendant under Ex.B1 in the year 1995. Pursuant to the above purchase, she has also constructed a house, after filing necessary permission from the concerned authorities. She has also availed loan from Bank for such construction. Therefore, merely because the plaintiffs and their son had lived in a joint family and had some ancestral property, it cannot be presumed that any property purchased by the daughter-in-law in her own name is only a result of contribution made by her husband. Such presumption cannot be drawn legally. She has also availed loan from Bank for such construction. Therefore, merely because the plaintiffs and their son had lived in a joint family and had some ancestral property, it cannot be presumed that any property purchased by the daughter-in-law in her own name is only a result of contribution made by her husband. Such presumption cannot be drawn legally. It is to be noted that even assuming that the husband has contributed for such purchase, it has to be presumed that such purchase has been made only for the benefit of the wife. Therefore, no stretch of imagination can be construed as the property is the joint family property. Further, the first defendant also exhibited documents to show that her father had properties and had source to purchase the property in her name. Such view of the matter, this Court do not find any infirmity in the judgment of the trial Court. In fact, the trial Court assessed the entire aspect and held that Item No.6 is a self acquired property of the first defendant. 16. A careful perusal of the evidence of P.W.1, made it clear that the plaintiffs had not produced any sufficient evidence to prove the existence of the vehicles. Similarly, with regard to Item No.5, no sufficient evidence is produced by the plaintiffs to show that the deposit made by the deceased is lying in the finance Company. In the absence of any evidence and without examining anybody in this regard, existence of the said movable property cannot be presumed. 17. With regard to Item No.3, Fiat Car, the trial Court has granted partition in favour of the plaintiffs. Both sides fairly submitted that the Fiat Car is very old and its value is reduced and it cannot be sold. Admittedly, even if the plaintiffs had any share in that Fiat Car, the same cannot be sold. Such view of the matter, this Court is of the view that when the car is valueless and it cannot be sold to appropriate money, dividing the same among the parties will not serve any purpose to any one. Such view of the matter, decree granted in respect of Item No.3 is hereby set aside. 18. As far as Item Nos.7 to 12 and 14 are concerned, the learned counsel appearing on either side submitted that they are the joint family properties. Such view of the matter, decree granted in respect of Item No.3 is hereby set aside. 18. As far as Item Nos.7 to 12 and 14 are concerned, the learned counsel appearing on either side submitted that they are the joint family properties. There is no dispute in this regard. They have also admitted the legal position settled in the recent judgment cited supra, wherein the Hon'ble Apex Court held that the daughter becomes coparcener irrespective of the date of death of her father and in view of such position, the daughter is elevated as an coparcener that of the son. Such view of the matter, the daughter namely, the second appellant in A.S.No.850 of 2004 is also equally entitled to 1/3 share on her own and 1/3 share in a joint family property by virtue of the testamentary disposition in view of the Will executed by the deceased, it is also not disputed by the contesting defendants. Such view of the matter, 1/4 share declared in favour of the first defendant in the suit is got reduced to 1/6 share. Another 1/6 share is given to the first appellant herein, namely the first plaintiff in the suit. 19. Accordingly, the shares allotted by the trial Court in respect of the joint family properties in Item Nos.7 to 12 and 14 is modified as stated above; finding of the trial Court in respect of Item No.13 is hereby set aside; finding of the trial Court granted partition in respect of Item No.3 is also set aside and finding of the trial Court in respect of Item No.6 that it is a absolute property of the first defendant in the suit is hereby confirmed. 20. With the above modification, A.S.No.850 of 2004 is partly allowed and A.S.No.169 of 2006 is allowed in entirety. 21. Since execution of the Will and benefit in favour of the second appellant has not been disputed, no additional evidence is required in this matter. Hence, C.M.P.(MD)No.176 of 2019 is closed. The Registry is directed to return the originals filed along with the Civil Miscellaneous Petition. No costs. Modified decree has to be drawn as per the judgment.