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2020 Supreme(Mad) 2042
HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Karuppasamy – Appellant
Versus
Kuppayal – Respondents
S.A. No. 974 of 2010 & M.P. No. 1 of 2010
Decided On : 29-09-2020
For the Appellant :R.T. Doraisamy, Advocate
For the Respondent:S. Silambanan, Senior Counsel for M/s. Profexs Associates, Advocates
The main legal point established in the judgment is the burden of proof in establishing whether properties are self-acquired or ancestral, and the entitlement of the daughter to share the ancestral property.
Headnote:
Partition - Property Dispute - Civil Procedure Code - Section 100 - Items 1 and 2 of the suit properties are the self acquired properties of Ammasai Gounder and item 3 of the suit property belongs to the defendant - Ex.B-1 and Ex.B-36 - The plaintiff is entitled for ½ share in the property - The defendant failed to prove that the items 1 and 2 are ancestral properties - The daughter becomes a coparcener by birth and is entitled to share the ancestral property along with the son - The judgments and decrees of the Courts below are confirmed
Fact of the Case:
The case involves a partition suit filed by a daughter against her brother for a share in the properties left by their deceased parents. The trial Court held that items 1 and 2 of the suit schedule properties are the self acquired property of the deceased father, and the daughter and son are entitled to ½ share each. The defendant appealed, but the first appellate Court confirmed the trial Court decree. The second appeal was filed against this judgment.
Finding of the Court:
The Court found that items 1 and 2 of the suit properties are the self acquired properties of the deceased father, and item 3 of the suit property belongs to the defendant. The daughter is entitled to a ½ share in the property. The Court also confirmed the judgments and decrees of the Courts below.
Issues: The main issues were whether the properties were self-acquired or ancestral, and whether the daughter was entitled to a share in the ancestral property.
Ratio Decidendi: The Court held that the burden of proof was on the defendant to establish that the properties were self-acquired, and in the absence of proof, the presumption should be that they were self-acquired. The Court also considered the recent judgment of the Hon'ble Supreme Court, which stated that the daughter becomes a coparcener by birth and is entitled to share the ancestral property along with the son.
Final Decision: The Second Appeal was dismissed, and the judgments and decrees of the Courts below were confirmed.
JUDGMENT :
(Prayer: Second Appeal has been filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 22.04.2010 made in A.S.No.7 of 2007 on the file of the Additional District Judge (Fast Track Court-II), Gobichettipalayam confirming the judgment and decree dated 20.06.2005 made in O.S.No.213 of 2002 on the file of the District Munsif Court, Sathyamangalam.)
(The case has been heard through Video conference)
1. The second appeal is filed by the defendant in the suit for partition filed by his sister. The parties are son and daughter of late Ammasai Gounder. Out of three items of properties, the trial Court held that, items 1 and 2 of the suit schedule properties are the self acquired property of the deceased Ammasai Gounder, who died intestate. Therefore, his son (defendant) and his daughter (plaintiff) are entitled for ½ share each. So far the 3rd item property, the trial Court held that it is the property of Marayal (the mother of plaintiff and defendant). The said Marayal during her life time, had settled the 3rd item property in favour of the defendant. So, the plaintiff has no share in it. Accordingly, the preliminary decree for partition in respect of item 1 and 2 property was passed by the trial Court.
2. The defendant went on appeal before the Additional District Judge, Gopichettipalayam. The first appellate Court dismissed the appeal and confirmed the trial Court decree. Hence this second appeal.
3. The learned counsel for the appellant submitted that, the items 1 and 2 of the suit property were purchased on 26/05/1950 and 25/06/1965 under sale deeds Ex.A-1 and Ex.A-2 respectively by selling the ancestral properties on 12/07/1948 and 13/07/1962 under Ex.B-36 and Ex.B-1 respectively. So, items 1 and 2 properties are brought from the nucleus of the ancestral properties. These properties have been blend to the hotchpot of the ancestral properties being purchased from the income of the nucleus. In spite of Ex.B-1 and Ex.B-36, the Courts below erred in observing that the defendant failed to prove these two properties were purchased in the name of Ammasai Gounder, out of the sale proceeds of the ancestral properties and the income derived from the ancestral properties.
4. The learned counsel for the respondent counters the above submission by reading the recital in Ex.B-36 dated 12/07/1948 which says the property is sold to discharge loans. The learned counsel would submit that the first item property was purchased two years after the sale of ancestral property to discharge the loans and the second item property was purchased 3 years after selling the ancestral property. Therefore, these properties are the self acquired properties of Ammasai Gounder. Being the daughter of the said Ammasai Gounder, the plaintiff have equal share in the property. The suit properties never carry the trappings of ancestral property. The defendant, who pleads that they were purchased from ancestral nucleus, had not produced any evidence to prove it.
5. As per the plaint, Kuppayal (plaintiff) and Karuppasamy are daughter and son of Ammasai Gounder. 1 and 2 items properties were purchased by Ammasai Gounder and the third item property was purchased in the name of his wife Marayal. Both Ammasai Gounder and Marayal died intestate. Being their daughter and son, the plaintiff and the defendant are the first class legal heirs. While so, attempts are made by the defendant to alienate the property without the consent of the plaintiff. Hence, partition by metes and bound and consequential delivery of ½ share in the properties sought.
6. The suit resisted by the defendant on the ground that, the items 1 and 2 properties are not self acquired properties of Ammasai Gounder. They were purchased in the name of Ammasai Gounder from the sale proceeds of the ancestral properties. The plaintiff got married during the life time of her father Ammasai Gounder, who died on 10/03/1985. On the death of Ammasai Gounder, items 1 and 2 properties d
