The entitlement to share in joint family properties under the Hindu Succession Act, 1956 is contingent upon the proof of surplus income from the ancestral nucleus.

JUDGMENT

(Prayer: This Appeal Suit has been filed, under Order 41 Rule 1, read with Section 96 of CPC, against the judgement and decree, dated 13.01.2015, made in OS.No.241 of 2012, by the III Additional District and Sessions Judge, Salem.)

1. This Appeal Suit has been filed, by the Defendants 3 and 4, against the judgement and decree, dated 13.01.2015, made in OS.No.241 of 2012, by the III Additional District and Sessions Judge, Salem

2. The suit was filed, seeking a preliminary decree, directing the Defendants 1 to 3 to divide the suit properties into 3 equal shares and allot one such share to the Plaintiff, failing which, to pass an order to appoint an Advocate Commissioner to divide the suit properties into 3 equal shares and allot one such share to the Plaintiff and for separate possession of the same and also a decree, declaring the two gift settlement deeds, executed by the 1st Defendant to the Defendants 3 and 4, regarding the items (1) and (2) of the suit properties, dated 19.06.2012, as null and void and for costs.

3. The case of the Plaintiff is that the Defendants 1 and 2 are husband and wife and the Plaintiff and the 3rd Defendant are their sons. The 4th Defendant is the daughter of the 3rd Defendant. Item (1) was acquired by the 1st Defendant through his family partition. Item (2) were purchased by the 1st Defendant, under the registered sale deeds, dated 14.09.1972 and 12.03.1974, out of the income derived from the Item (1). The Item(2) of the suit properties was purchased by the 1st Defendant in the name of the 2nd Defendant, out of the income derived from the items (1) and (2) of the suit properties. The 2nd Defendant has no independent income. The Item (3) of the suit properties was purchased in the name of the 2nd Defendant by the 1st Defendant. The Plaintiff and the Defendants 1 and 3 are each entitled to 1/3rd share in the suit properties. The Plaintiff has been residing in the Item (3) of the suit properties. The Defendants 1 to 3 are in possession and enjoyment of the items (1) and (2) of the suit properties. The Plaintiff came to know that the 1st Defendant has executed a Gift Settlement Deed to the 3rd Defendant in respect of the Item(1) of the suit properties and another Gift Settlement Deed to the 4th Defendant, in respect of the Item (2) of the suit properties. The Plaintiff demanded for partition from the Defendants and convened a Panchayat on 01.11.2012, but it ended in vain. The suit properties are the joint family properties of the Plaintiff and the Defendants 1 to 3. The 1st Defendant has no right to execute the Gift Settlement Deeds in favour of the 3rd and 4th Defendants. In such circumstances, the suit has been filed, seeking the reliefs, as stated above.

4. The case of the Defendants, as set out in the written statement, filed by the Defendants 1 and 3 and adopted by other Defendants is that the relationship between the parties are true. The entire suit properties are not the joint family properties. Item (1) alone is the joint family property. The items (2) and (3) are the self acquired property of the 1st Defendant and the 2nd Defendant, respectively. The 1st Defendant had purchased the item (2) of the suit properties from his separate income. There was no surplus joint family income from the Item (1) of the suit properties. The Plaintiff is entitled to share in the Item (1) of the suit properties only and his share is 1/5th only. The younger, son namely, Gunasekaran died 25 years ago. Another son, Sounder Rajan went missing about 30 years ago. The only daughter also died about 25 years ago. Therefore, the Plaintiff is not entitled to claim 1/3rd share in the ancestral property, i.e. Item (1) of the suit properties. Thus, the Defendants 1 and 3 are having 1/5 share each and 2nd Defendant is having 2/5th share thereto. The 3rd Defendant permitted the Plaintiff to reside in the Item (3) of the suit properties. The Defendants 1 to 3 are in joint possession of the Item (1) of the suit properties.