No presumption of joint family property; claimant must prove nucleus; long delay bars partition claim.

JUDGMENT :

K. KUMARESH BABU, J.

The present first appeal has been filed challenging the decree and judgement dated 15.03.2017 made in the O.S.No.25 of 2013 on the file of Learned Additional District and Sessions Judge, Coimbatore.

1.The suit is instituted for partition and separate possession of the plaintiff’s 1/3rd share in the suit properties and for costs and other consequential reliefs. The case of the plaintiff is that she and the 1st defendant are sisters and the 2nd defendant is their brother, and they are the daughters and son of Late Krishnama Naidu through his junior wife Chinnammal, while his senior wife Akkammal died issueless.

2.The plaintiff submits that the suit properties were purchased by the said Krishnama Naidu out of joint family income under a registered sale deed dated 31.08.1944 and thereafter the said Krishnama Naidu, along with his wives and children including the plaintiff and defendants, were in joint possession and enjoyment of the suit properties by cultivating the same.

3.It is submitted that the said Krishnama Naidu died intestate on 24.11.1947 and his senior wife Akkammal died on 06.04.1956, and thereafter his junior wife Chinnammal, being the mother of the plaintiff and defendants, succeeded to the suit properties as a limited owner under the provisions of the Hindu Women’s Right to Property Act, 1937, and subsequently became the absolute owner by virtue of the Hindu Succession Act, 1956, and she continued to be in possession and enjoyment of the suit properties until her death on 17.03.1969, leaving behind the plaintiff and defendants as her legal heirs.

4.The plaintiff submits that after the death of Chinnammal, the suit properties have been in the joint and constructive possession of the plaintiff and defendants without any partition till date. she further submits that she is entitled to 1/3rd share in the suit properties and had made several demands to the defendants for amicable partition, but the defendants have been evading and postponing the same. The plaintiff therefore caused a legal notice dated 27.12.2012 calling upon the defendants to effect partition, and though the 2nd defendant sent a reply dated 03.01.2013 containing false averments, the defendants have failed to comply with the demand, thereby necessitating the filing of the present suit.

5. The defendants filed a detailed written statement stoutly denying the entire case of the plaintiff and contended that the suit property is not ancestral in character, but the absolute self-acquired property of late Krishnama Naidu, purchased under the registered sale deed dated 31.08.1944 Ex. A1 out of his independent income and not from any joint family nucleus as falsely alleged by the plaintiff. The defendants categorically denied the existence of any ancestral property or joint family income capable of forming a nucleus for such purchase. It was further contended that the recitals in Ex. A1 do not disclose any reference to joint family funds, and therefore the plaintiff cannot be permitted to contradict the written document by way of oral evidence.

6.The defendants further pleaded that Krishnama Naidu was in exclusive possession and enjoyment of the suit property as its absolute owner during his lifetime. According to them, he died on 07.04.1946 as evidenced by Ex. B1, and upon his demise, the property did not devolve in the manner alleged by the plaintiff. The defendants denied that Chinnammal acquired any absolute ownership over the property or that she was in exclusive possession as claimed. Instead, it was contended that the second defendant continued in uninterrupted, open, and exclusive possession and enjoyment of the suit property, exercising rights of ownership to the exclusion of others.

7.In support of their possession and enjoyment, the defendants relied upon a series of documentary evidence marked as Ex. B2 to Ex. B30, comprising