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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. PONGIAPPAN, J.
Veerappan & Others – Appellants
Versus
Cauvery & Others – Respondents
A.S.(MD) No. 161 of 2007
Decided On : 25-02-2019
Hindu Succession Act - trial Court - From the above evidence - suit schedule properties – death - It is stated by the defendants that their father Rengasamy went to Srilanka and returned to India. While he was alive in the suit village, he was working as a Document Writer and he was also an Astrologer and also seeing Manaisasthiram. It is further stated by the defendants that based on the income derived from Astrology and Manaisasthiram, he purchased so many properties, out of which, some of the properties were given by Rengasamy to his brother Rajagopal by way of partition – Held, legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shit on the person who claims it to be self acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available - So, following the principles laid down by the Honble Apex Court and by this Court, the proving of fact that the suit properties are purchased from the income derived from the ancestral property, is a matter of fact. Since the said plea was taken by the plaintiff, the same has to be proved by the plaintiff - But, in the case on hand, in order to prove the fact that the suit schedule properties were purchased from the income derived from the ancestral property, there was no substantial evidence let in on the side of the plaintiffs. Furthermore, no documents were exhibited on the side of the plaintiffs to prove that the suit schedule properties were purchased from the income derived from joint family property. Therefore, it cannot be held that the suit schedule properties were purchased from the income of the joint family property/ancestral property - From the above evidence, it is very clear that the first plaintiff did not know the details of purchase and details of the income derived from the ancestral property. Even though the plaintiffs stated that there was a document available to show that the suit schedule property is the joint family property, in order to prove the same, no document was adduced on the side of the plaintiffs. Therefore, the contention of the plaintiffs that the suit schedule properties are the ancestral properties, cannot said to be correct - Following the principles laid down by the Honble Apex Court and by this Court, it is the duty of the plaintiff to prove that the ancestral property is having sufficient income for acquiring the suit schedule property. But, in the case on hand, there was no evidence let in on the side of the plaintiffs to believe that all the suit schedule properties were purchased in the name of Rengasamy, who is the kartha of the family – Appeal dismissed
JUDGMENT :
1. The appellants herein are the plaintiffs and respondents herein are the defendants in O.S.No.95 of 2004 on the file of learned Principal District Judge, Pudukottai.
2. The Appeal Suit has been filed by the plaintiffs against the Judgment and Decree dated 08.03.2007 made in O.S.No.95 of 2004 on the file of the learned Principal District Judge, Pudukottai, whereby, the learned Principal District Judge dismissed the suit filed for partition.
3. The averments made in the plaint, in brief, are as follows:
(i) Originally, the suit schedule properties belonged to one Kasimariambalam, who is the grandfather of plaintiffs and defendants. The said Kasimariambalam had two sons, namely, Rengasamy and Rajagopal. The plaintiffs in the suit are legal heirs of Rajagopal and the defendants are legal heirs of Rengasamy. After the demise of Kasimariambalam, both Rengasamy and Rajagopal were enjoying the ancestral properties. Rajagopal died in the year 1956. After the demise of the said Rajagopal, the father of the defendants and the plaintiffs are enjoying the ancestral properties. Rengasamy also died in the year 1960. After the death of Rengasamy, the plaintiffs and the defendants, without any partition, are enjoying the said properties.
(ii) It is stated by the plaintiffs that as per the Hindu Succession Act, the plaintiffs are entitled to half share of the suit schedule properties and the defendants are entitled to the remaining half share. There was a dispute between the plaintiffs and the defendants over the enjoyment of the suit properties jointly. Hence, the plaintiffs, on 05.09.2003, requested the defendants for partition. But, the defendants had not come forward for partition. Hence, the suit has been filed.
4. The first defendant remained ex parte before the trial Court.
5. The second defendant filed a written statement, which was adopted by the third defendant. The averments made in the written statement in brief are as follows:
(i) The relationship between the defendants and the plaintiffs is admitted. The suit properties did not belong to the deceased Kasimariambalam. Originally, there was an ancestral property, having an extent of 2 ma and it was a manikattu. There was no income derived from the said property.
(ii) It is stated by the defendants that their father Rengasamy went to Srilanka and returned to India. While he was alive in the suit village, he was working as a Document Writer and he was also an Astrologer and also seeing Manaisasthiram. It is further stated by the defendants that based on the income derived from Astrology and Manaisasthiram, he purchased so many properties, out of which, some of the properties were given by Rengasamy to his brother Rajagopal by way of partition. The said transaction happened 40 years back. The said properties were divided between the plaintiffs by way of partition. After the partition, the plaintiffs also sold out their share of the properties to the third parties. The defendants also sold out their share of the properties to the third parties. The parties are enjoying their respective shares as per the deed executed in favour of them.
(iii) It is stated by the defendants that there was no partition in respect of the suit schedule properties. As per the enjoyment of the properties, the patta was also issued to their respective parties. As of now, all are residing in separate houses. The 25th item of the suit schedule property belongs to the second defendant's wife. The 21st and 23rd item of the properties belong to the first
(iii) It is denied by the defendants that the suit schedule properties are the joint family properties. Hence, the defendants prayed for dismissal of the suit.
6. Based on the abovesaid pleadings, the learned Principal District Judge, Pudukottai framed the following issues:
(i) Whether the suit properties are undivided Hindu Joint family properties of plaintiffs and defendants?
(ii) Whether the suit is not correctly valued for suit valuation and court fees?
(iii) Whet
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