Evasive denial in written statements does not suffice to challenge established familial relationships; rights of co-owners remain intact without proven ouster.

JUDGMENT :

N. SATHISH KUMAR, J.

1. Challenging the judgment and decree of the Trial Court, granting preliminary decree in favour of the plaintiffs, the present appeal came to be filed by the 3^rd defendant.

2. The parties are arrayed as per their own ranking before the Trial Court.

3. The case of the plaintiffs is that the 1^st plaintiff is the wife of one Sengodan and the 2^nd plaintiff is the daughter. The defendants 1 to 4 and the said Sengodan are brothers and their father Chinnathambi died on 15.01.2002 and their mother Chinnapillai also died on 22.03.2004. The said Sengodan predeceased his father Chinnathambi and his mother Chinnapillai on 27.12.1992. The suit property was a Hindu undivided ancestral joint family properties and therefore, according to the plaintiffs, they are entitled to 1/5^th share in the property.

4. The 3^rd defendant has filed a written statement, which has been adopted by the defendants 1, 2 & 4, wherein it is the stand of the 3^rd defendant that the 1^st plaintiff is not the wife of the deceased Sengodan and the 2^nd plaintiff was not born to Sengodan. The 1^st plaintiff left the place of the defendants 1 to 3 about 40 years ago and she was never in joint possession and enjoyment of the suit property along with the defendants at any point of time. The 1^st plaintiff has immoral character and the plaintiffs were not the legal heirs of Sengodan and therefore, they are not entitled to claim any share in the suit property.

5. The Trial Court, based on the above pleadings framed the following issues:

i) Whether the plaintiffs are entitled to have a share of 1/5 in the suit properties?

ii) Whether the plaintiffs are entitled to the relief of Preliminary decree as prayed for?

iii) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?

iv) To what other reliefs?

6. On the side of the plaintiffs, 1^st plaintiff examined herself as P.W.1 and P.W.2 to P.W.4 were examined and Ex.A1 to Ex.A8 were marked. On the side of the defendants, D.W.1 to D.W.3 were examined and Ex.B1 & Ex.B2 were marked.

7. The Trial Court, after appreciation of the material documents and evidence, decreed the suit in favour of the plaintiffs. Challenging the judgment and decree of the Trial Court, the present appeal has been filed.

8. Learned counsel for the appellant would mainly submit that the Trial Court has not properly appreciated the evidence and in fact, the relationship between the 1^st plaintiff and Sengodan has not been established. In the legal heir certificate (Ex.B4) obtained in the year 1991, the plaintiffs' name do not find incorporated in it, whereas the plaintiffs have later fraudulently obtained another legal heir certificate (Ex.A8) on 17.10.2017.The Trial Court has not considered all these aspects.

9. Learned counsel for the respondents 1 & 2 would contend that from the evidence of P.W.2 to P.W.4, there is no dispute with regard to the relationship between the plaintiffs and Sengodan. Ex.A6 and Ex.A7 / Aadhar Cards of the plaintiffs clearly prove the fact that the deceased Sengodan is the husband of the 1^st plaintiff and father of the 2^nd plaintiff and there is an evasive denial. He would further contend that the plea of ouster has not been established to deny the share.

10. In the light of the above, the short point involved for consideration in this appeal is as to whether the 1^st plaintiff was not the wife of Sengodan and the 2^nd plaintiff was not the daughter of the said Sengodan?

POINT:

11. It is the specific case of the plaintiffs that the 1^st plaintiff married Sengodan and the 2^nd plaintiff was born to