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2020 Supreme(Mad) 271
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBRAMANIAN, J.
A. Gunasekaran & Others - Appellant
Versus
Minor Eswararaj, Rep. By next friend and guardian mother Premalatha & Another - Respondent
S.A. No. 707 of 2014 & MP No. 1 of 2014
Decided On : 06-03-2020
For the Appellants:T.M. Hariharan, Advocate.
The central legal point established is that the character of a property as ancestral is determined by its devolution through generations, as evidenced by the recitals in relevant documents.
Headnote:
Ancestral Property - Property Partition - Hindu Succession Act, 1956 - Ex.A5 - Section 100 of C.P.C.
Fact of the Case:
The plaintiff claimed a share in the suit properties as joint family properties, while the defendants contended that the properties were purchased with their own income and not ancestral. The Trial Judge concluded in favor of the plaintiff, but the Lower Appellate Court found that only one property could be characterized as ancestral.
Finding of the Court:
The Court found that the property partition deed Ex.A5 clearly indicated that the property was the self-acquired property of the father and not ancestral. As a result, the plaintiff's claim for a share in the suit properties was dismissed.
Issues: The main issues were whether the suit properties were ancestral, the characterization of the property allotted in the partition deed, and the genuineness of the Will projected by the defendants.
Ratio Decidendi: The Court held that for a property to be classified as ancestral, it should have devolved by succession for more than three generations, and the recitals in the partition deed were crucial in determining the character of the property.
Final Decision: The Second Appeal was allowed, the judgment and decree of the Lower Appellate Court were set aside, and the suit was dismissed. The genuineness of the Will was not considered, and no costs were awarded.
JUDGMENT
(Prayer: Second Appeal filed under Section 100 of C.P.C., to set aside the judgment and decree of the learned II Additional District Judge, Salem dated 29.04.2013 in A.S.No.30 of 2011, preferred against the judgment and decree of the learned II Additional Subordinate Judge, Salem dated 18.08.2010 in OS No.268 of 2005.)
1. The defendants 2 to 6 in OS No.268 of 2005 are the appellants. The said suit was laid by the first respondent claiming 1/6th share in the suit properties. According to the first respondent, the suit properties though purchased in the name of the three sons of Alagesan are all joint family properties and as such, as the son of the first defendant, the plaintiff is entitled to 1/6th share in the suit properties by birth.
2. The suit was resisted by the defendants contending that the suit properties are not ancestral properties nor they were at any time blended with such ancestral properties. It was their further contention that the suit properties were purchased by the sons of Alagesan out of their own income and there was no income yielding joint family property that was available to have formed the nucleus for purchase of the suit property by the sons of Alagesan in their names.
3. At trial, the plaintiff's next friend Premalatha was examined as P.W.1 and Exhibits A1 to A15 were marked. On the side of the defendants, the defendants 1 to 3 were examined as D.Ws.1 to 3 and one Prakash was examined as D.W.4. A Will said to have been executed by Alagesan on 19.12.2001 that was projected by the defendants was marked as Ex.B1.
4. The learned Trial Judge upon a consideration of the evidence concluded that all the properties are joint family properties and as such, the plaintiff would be entitled to 5/32 share in the suit properties. Aggrieved the defendants preferred an appeal in AS No.30 of 2011.
5. The lower Appellate Court upon a reconsideration of the evidence concluded that the claim of the plaintiff regarding the character of the properties has not been established. The lower Appellate Court found that the properties that were purchased by the sons of Alagesan in their names belonged to them absolutely and the plaintiff who is the son of one of the sons of Alagesan, viz. the first defendant cannot claim any right by birth over those properties. The Lower Appellate Court, however, concluded that the third item of the suit properties could be characterised as ancestral property, since it was allotted to Alagesan at a partition that took place on 02.04.1964 between Alagesan, his father and his brother. Since the property had been partitioned between the father and sons, the Lower Appellate Court concluded that the said property could be characterised as ancestral property and therefore, the plaintiff would be entitled to a share only in the said property. The quantum of share was fixed by 5/32. The Will projected by the defendants was disbelieved on the ground that the testator had not made any provision for his wife in the said Will. Aggrieved the defendants have come up with this Second Appeal. The plaintiffs did not challenge the judgment of the Appellate Court.
6. The following questions of law were framed at the time of admission:
(a) Whether the suit item 3 allotted to Alagesan in Ex.A5 Partition is not separate property in his hands?
(b) Is not the assumption of the Courts below that suit item 3 is a joint family property contrary to law?
(c) Whether the un-controverted evidence of DW4 Attestor does not establish Ex.B1 Will?
7. I have heard Mr. T.M.Hariharan, learned counsel appearing for the appellants. The respondents though served are not appearing either in person or through counsel duly instructed.
8. Mr.T.M.Hariharan, learned counsel appearing for the appellants would contend that the recitals of Ex.A5 dated 02.04.1964, which show that the property was the self-acquired property of Alagesan’s father, which is divided in 1964 between the sons of Alagesan after the coming into force of the Hindu Successio
