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2013 Supreme(Mad) 3570
MADRAS HIGH COURT
R.S.Ramanathan, J.
K.S. Palanisami – Appellant
Versus
K.S. Pongulappan (Died) & Others – Respondents
A.S. No.435 of 1997
Decided On : October 9, 2013
Mr.S.Venkateswaran
The central legal point established in the judgment is the application of Hindu Law principles in determining joint family property ownership and the requirements for proving a Will.
Headnote:
Joint Family Property - Partition - Hindu Law - Will - [Joint Family Property] - [Hindu Law] - [Partition, Will] - The court discussed the joint family properties, the validity of a Will, and the principles of Hindu Law in relation to partition and ownership of property. The court emphasized the presumption of female ownership, the burden of proof, and the requirements for proving a Will. The judgment confirmed that the property in question belonged to the joint family and that the Will was not proved, leading to the dismissal of the appeal.
Fact of the Case:
The deceased first respondent filed a suit for partition of joint family properties. The Trial Court granted a preliminary decree, but the appellant filed an appeal disputing the ownership of certain properties and the validity of a Will executed by the mother.
Finding of the Court:
The court found that the property in question belonged to the joint family and that the Will was not proved. The appeal was dismissed, and the judgment and decree of the Trial Court were confirmed.
Issues: The issues included the ownership of specific properties, the validity of the Will, and the entitlement of the parties to the partition.
Ratio Decidendi: The court emphasized the presumption of female ownership, the burden of proof in establishing joint family properties, and the requirements for proving a Will. It held that the property belonged to the joint family and that the Will was not proved, leading to the dismissal of the appeal.
Final Decision: The appeal was dismissed, and the judgment and decree of the Trial Court were confirmed.
First defendant in O.S.No.103 of 1989 on the file of the Sub Court, Gobichettipalayam is the appellant.
2. The deceased first respondent filed the suit for partition of his half share and for separate possession. The Trial Court granted the preliminary decree holding that the first respondent was entitled to 4/9 share and the appellant is entitled to 4/9 and the second respondent is entitled to 1/9 share. Aggrieved by the same, this appeal is filed.
3. The plaintiff and the defendants are the children of Chellianna Gounder and their mother was Nallammal. Chellianna Gounder died in the year 1948 and he was in possession of ancestral properties and after his death, those properties were managed by the mother as the plaintiff and the first defendant were minors and the mother sold some properties during the minority of the plaintiff and the first defendant and also purchased certain properties and therefore, all the properties mentioned in the suit schedule are the joint family properties of the plaintiff and the first defendant and item 7 was purchased in the name of the mother and the sale consideration for the purchase was provided from the income of the joint family properties and therefore, she was not the owner of that property. The plaintiff was a graduate and he went for employment and after the first defendant became major, he was looking after the properties and the plaintiff was employed in the Chintamani Co-operative Store at Coimbatore and he was there for 15 years and thereafter, he was doing business and the first defendant, the brother of the plaintiff was enjoying the income from the suit properties and when the plaintiff demanded partition, the first defendant refused to divide the properties and therefore, the suit was filed for partition of the plaintiff's half share in the suit properties.
4. The first defendant filed a statement stating that the sister of the plaintiff and the first defendant was a necessary party and she was not impleaded. He also contended that item 7 was the separate property of the mother and it was purchased from her own income and therefore, the plaintiff cannot claim partition in respect of item 7. He has also stated that in respect of item 7, the mother Nallammal executed a Will while she was in a sound and disposing state of mind on 14.9.1988 and the Will was also registered and therefore, under that Will, he became the absolute owner of item 7. He also stated that except item 7, all the other properties are joint family properties. He also contended that the property purchased by the plaintiff at Ganapathy, Coimbatore also belongs to the joint family property and the property was purchased from and out of the income from the joint family properties
and the salary earned by the plaintiff was not sufficient to maintain his family and he also stated that the plaintiff has obtained gas agency and the money was also provided by the joint family income and the plaintiff was doing money lending business from the income he got from the joint family and he has not given any share from his income to the first defendant and therefore, the house in which the plaintiff is residing and the gas agency also belong to the joint family and they are also liable for partition. He also stated that the plaintiff was managing the suit property till the year 1984 and he has not rendered any account and item 3 was already sold and therefore, the suit is bad for partial partition.
5. The plaintiff filed reply statement denying the allegation that item 7 was purchased by the mother from her own funds and has stated that it was purchased from the income of the joint family property. He also stated that the Will dated 14.9.1988 was not a genuine one and Nallammal was not in sound and disposing state of mind at the time of execution of the alleged Will and she was unconscious from February 1988 and therefore, the Will must have been fabricated by the first defendant with the help of attesting witnesses and h
