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2025 DIGILAW 1899 (MAD)

Muthammal (Died) v. Pushpa

2025-04-03

N.SATHISH KUMAR

body2025
JUDGMENT : (N. SATHISH KUMAR, J.) Challenging the decree and judgment of the Trial Court, granting preliminary decree to the extent of 2/6 shares in Items Nos.1 to 3, 6, 7, 9 to 13 and in part of 5 th Item, the plaintiffs have filed the present appeal. 2. The parties are arrayed as per their own ranking before the Trial Court. 3. It is the case of the plaintiffs that their father Kuppakounder had two wives and the name of the 1 st wife is Angammal and the 2 nd wife is one Kanniammal. Through 1 st wife Angammal, Kuppakounder had one son, namely, Muthukounder and the plaintiffs were born through the 2 nd wife. The 1 st wife Angammal died intestate before 30 years and therefore, the plaintiffs are the Class-I legal heirs of Kuppakounder. Item Nos.4, 5 and 8 were purchased by Muthukounder from and out of the joint family income and the said Muthukounder is the brother of the plaintiffs. Therefore, the plaintiff sought 2/3 rd share in the property. 4. The defendants 1 and 2 filed a written statement, contending that Muthukounder is the father of the defendants and while Angammal was alive, Kuppakounder had married Kanniammal as 2 nd wife. After the demise of Kuppakounder, his only son Muthukounder had inherited the properties and enjoyed the same and after his death, the defendants 1 and 2 enjoyed the property and the plaintiffs were not at all in joint possession with the defendants. It is further contended that Muthukounder had purchased certain properties out of his own income and hence, opposed the suit. 5. The Trial Court, based on the above pleadings framed the following issues : i) Whether the suit properties are joint family properties? ii) Whether the plaintiffs are entitled for 2/3 rd share in the suit properties? iii) Whether the plaintiffs are entitled for means profit as prayed for? iv) To what other reliefs the plaintiffs are entitled to? 6. On the side of the plaintiffs, the 2 nd plaintiff was examined as P.W.1 and P.W.2 and P.W.3 were also examined and Ex.A1 to Ex.A8 were marked. On the side of the defendants, the 1 st defendant was examined as D.W.1 and Ex.B1 to Ex.B16 were marked. 7. iv) To what other reliefs the plaintiffs are entitled to? 6. On the side of the plaintiffs, the 2 nd plaintiff was examined as P.W.1 and P.W.2 and P.W.3 were also examined and Ex.A1 to Ex.A8 were marked. On the side of the defendants, the 1 st defendant was examined as D.W.1 and Ex.B1 to Ex.B16 were marked. 7. The Trial Court, after appreciation of evidence, granted 2/6 shares to the plaintiffs by holding that there is no evidence that Kuppakounder married Kanniammal after the death of the 1 st wife. 8. Learned counsel for the appellants would mainly submit that the Trial Court has erred in dismissing the suit in respect of other items and concluding that the plaintiffs are entitled to only 2/6 th shares instead of 2/3 rd shares. He would further submit that Kuppakounder married Kanniammal only after the death of the 1 st wife and this fact has been clearly spoken by the witnesses, which has not been denied in the cross examination. Further, the Trial Court had non suited the plaintiffs on technical ground. He would also submit that admittedly, Muthukounder, father of the defendants had inherited the properties of Kuppakounder and Item Nos.4, 5 and 8 were purchased in the name of Muthukounder by Kuppakounder and therefore, it has to be inferred that those properties were purchased out of the income of the joint family. 9. Whereas learned counsel for the respondents 1 & 2 would contend that there is no evidence to show that the plaintiffs' mother married Kuppakounder after the death of his 1 st wife. The Trial Court has rightly appreciated the evidence in this regard and held that the plaintiffs' mother married Kuppakounder during the life of the 1 st wife. As long as there is no valid marriage between Kuppakounder and Kanniammal, the plaintiffs cannot be construed as co-parceners and they are entitled to shares only from the father's properties. He would further contend that as far as Items Nos.4, 5 and 8 are concerned, those properties were purchased by Muthukounder individually and in the absence of any evidence with regard to the nature of income from the joint family properties, on the basis of mere purchase in the name of one of the members of the family, it cannot be held that those properties were purchased out of the income of the joint family. Moreover, the plaintiffs were not at all in joint possession with the defendants at any point of time. 10. In the light of the above, the points for consideration in this appeal are as follows: i) Whether there was a valid marriage between Kuppakounder and the plaintiffs' mother Kanniammal?; ii) Whether Item Nos.4, 5, 8 were purchased out of the joint family income? And iii) To what other reliefs the plaintiffs are entitled to? POINTS: 11. It is admitted by both sides that except Items Nos.4, 8 and a part of 5 th Item, all other properties were originally owned by Kuppakounder. It is also not disputed that Kuppakounder had two wifes, namely, Angammal and Kanniammal and defendants 1 to 3 are the grandchildren of Angammal, i.e., daughters of Muthukounder, who was the only son born through Angammal to Kuppakounder. The plaintiffs were born through Kanniammal, the 2 nd wife of Kuppakounder. These facts are not at all disputed. 12. The only contention put forth by the defendants in their written statement that the plaintiffs' mother Kanniammal married Kuppakounder during the life time of the 1 st wife, whereas it is the specific case of the plaintiffs that Kanniammal married Kuppakounder after the death of the 1 st wife Angammal. Though there was no death certificate produced to prove the date of death of Angammal, this Court is of the view that mere non production of death certificate cannot be a ground to reject the plaintiffs' case for the simple reason that the specific case of the plaintiffs, that their mother married Kuppakounder after the death of the 1 st wife, has not been denied in the cross examination. P.W.1 specifically asserted in her evidence that her mother married Kuppakounder after the death of Angammal and her specific evidence has not even been denied in the cross examination. D.W.1 in the cross examination clearly deposed that she has no direct knowledge about the marriage and she pleaded ignorance about the date of marriage and she was not aware of the solemnization of the 2 nd marriage between Kuppakounder and Kanniammal. Her evidence only indicates that their defence is based on hearsay evidence and they have no direct knowledge about the marriage. Her evidence only indicates that their defence is based on hearsay evidence and they have no direct knowledge about the marriage. Therefore, the 2 nd plaintiff, who is the direct legal heir of Kuppakounder born through Kanniammal, asserted that her mother married Kuppakounder after the death of the 1 st wife Angammal and her evidence has not been disputed in the cross examination. Therefore, the factum of marriage of Kanniammal with Kuppakounder, after the death of Angammal is held to be proved, as the finding of the Trial Court that there is no evidence that Kanniammal married Kuppakounder after the death of the 1 st wife is merely on the basis of inference without any evidence. Further, the partition deed has been effected among the defendants 1 and 2 on 09.04.2013 as per Ex.A8 and the said partition does not bind the plaintiffs. 13. In the entire written statement, though it is stated that by the defendants 1 & 2 that the plaintiffs are not in joint possession with the defendants, the plea of ouster is not established to deny the share and as long as the plea of ouster is not taken, the plaintiffs cannot be denied any shares in the property. 14. Insofar as Item Nos.4, 5 and 8 are concerned, those properties were purchased by Muthukounder under Ex.B1 to Ex.B3 and Ex.B5 dated 21.03.1974, 15.07.1964, 04.06.1962 and 10.12.1973 respectively and those documents indicate that the properties had been purchased by Muthukounder alone. Though the father of Muthukounder had left some properties, if the evidence of P.W.1 in the cross examination is carefully seen, the land possessed by Muthukounder is only a dry land and no irrigation facilities are available. Therefore, in the absence of any evidence to show that the land allotted by Kuppakounder has been generating any income, it cannot be presumed that the properties have been purchased by the member of the family from the income of the joint family, especially when the plaintiffs have not shown any income in their evidence to substantiate their stand that the purchase made vide Ex.B1 to Ex.B3 and Ex.B5 was out of joint family nucleus. The finding of the Trial Court in this regard does not require any interference. The finding of the Trial Court in this regard does not require any interference. As stated supra, the marriage of the plaintiffs' mother with Kuppakounder after the death of the 1 st wife has been clearly proved and therefore, the plaintiffs are entitled to equal shares along with brother Muthukounder. 15. In the result, the instant Appeal Suit is allowed in part. The suit is decreed in favour of the plaintiffs. The plaintiffs are entitled to 2/3 rd shares in Item Nos.1 to 3, 6, 7, 9 to 13 and also part of Item No.5. The judgment of the Trial Court in respect of Item Nos.4, two cents of 5 th Item and 8 is hereby confirmed. No costs. Consequently, connected Miscellaneous Petition is closed.