Property obtained by a co-parcener becomes separate property of such co-parcener only qua other co-sharers.

(Appeal filed under Order 36 Rule 1 of the Original Side Rules against the judgment of the learned single Judge dated 10.4.2001 in C.S.No.911 of 1999.)

P.K. Misra, J

Plaintiffs are the appellants.

2. Plaintiffs are the daughters of one Sundaraja Naicker, whereas the defendants 1 and 2 are the sons and the third defendant is the widow of such Sundaraja Naicker. The suit was filed for partition and injunction. During pendency of the suit, third defendant died. After the death of Defendant No.3, the plaintiffs claimed 1/8th share each in the property and proportionate mesne profits. Sundaraja Naicker died on 9.8.1975. According to the plaintiffs, the disputed property was purchased by Sundaraja Naicker from out of his own earnings and thus his separate property, and the plaintiffs are entitled to equal share as that of the sons, namely, the defendants 1 and 2. The defendants in their written statement, while not disputing the relationship between the parties, have contended that the property in question was the joint family property of the defendants along with their father and therefore after the death of Sundaraja Naicker, the plaintiffs together are entitled to 1/4th share and the defendants together are entitled to 3/4th share. It is stated by the defendants that the vacant land originally belonged to a landlord one Dorai Babu and the superstructure was constructed by Doraisamy Naaicker and Appadurai Naicker, who constituted a joint family. After the death of Doraisamy Niacker, his half share devolved on his widow Karpagambal. Appadurai Naicker had two sons, namely, Sundaraja Naicker through first wife and Ranganathan through second wife. Appadurai Naicker died leaving behind his two sons, Sundaraja Naicker and Ranganathan and his second wife Sundarambal and daughter Radhabai Ammal. All of them are entitled to 1/4th share of the half share of Appadurai Naicker. Subsequently, Karpagambal settled her half share in the property in favour of Sundaraja Naicker under a deed of settlement dated 3.10.1966. Thus, Sundaraja Naicker became entitled to 5/8th share in the superstructure. Thereafter, there was a partition on 1.2.1967, by which the property mentioned in 'D' schedule fallen to the share of Sundaraja Naicker. Subsequently the original landlord had initiated proceedings under the City Tenants Protection Act and ultimately by virtue of the order passed in such proceedings under Section 9, Sundaraja Naicker purchased the land on which the superstructure stood. Since Sundaraja Naicker did not have sufficient income, Defendant No.1, who was already serving, made major contribution for the purchase of such land.

3. On the basis of such pleadings, the trial court framed the following issues: -

"1. Whether the plaintiffs are each entitled to 1/8th share in the suit property?

2. Whether the superstructure or building standing in the suit property is the ancestral property of the father and the defendants 1 and 2.

3. Whether the first defendant has contributed for the purchase of the land?

4. To what reliefs the plaintiffs are entitled?

4. Taking all the issues 1 to 3 together, the learned single Judge came to the conclusion that the superstructure belongs to the joint family and subsequently the entire properties of the joint family were divided along with the disputed land and the superstructure and Sundaraja Naicker, the father of the plaintiffs and the defendants, was allotted the suit building as against his share and, therefore, such property, even though obtained in partition, became the joint family property of Sundaraja Naicker and his two sons. Therefore, on the death of Sundaraja Naicker in 1975, his 1/3rd share devolved upon the daughters, sons and the widow, whereas the sons continued to retain 2/3rd share in their capacity as coparceners. On the aforesaid basis, the learned single Judge has held that the plaintiffs together are entitled to 1/4th share and the defendants 1 & 2 are entitled to 3/4th share as during pende