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MADRAS HIGH COURT
R.N. Manjula, J.
M. Lavanya and Ors. —Appellants
versus
Murugavel and Ors. —Respondents
A.S. (MD) No.78 of 2019 and C.M.P. (MD) No.4296 of 2019
Decided on 13.4.2022
(A) Hindu Succession Act, 1956—Section 8—Indian Evidence Act, 1872—Section 91—Partition suit—If a Hindu male inherits property in accordance with Section 8 of Act, property so inherited by him would be his self-acquired property and it cannot be considered as ancestral property—Even in ancestral properties, if partition had taken place and member of joint family had acquired its share, then share so acquired would lose character of ancestral nature and that should be treated as his self-acquired property only—Sale deeds would show that original owner of suit property is purchaser of suit properties—Sale deeds did not mention that original owner of suit property had purchased suit properties in his capacity as a Karta for joint family—Before claiming character of property as joint family property, appellants have got duty to prove that they were joint family properties which were managed by original owner of suit property as a Manager—When written registered documents like sale deeds would show that properties were purchased in name of a person in his personal capacity, burden to prove otherwise would be on shoulders of those who plead that properties were purchased on behalf of joint family in name of its title holder—By virtue of Section 91 of Evidence Act, 1872, burden of title holder of property and any of his subsequent purchasers to prove that properties were self-acquired properties of title holders would get discharged by production of very title deeds—It is right for trial Judge to presume that properties stood in name of original owner of suit property were properties purchased by him from and out of his own income—Property is proved to be only self-acquired property of original owner of suit property, at the death of original owner of suit property, succession opens as per Section 8 of Hindu Succession Act—Wife, son and daughters being Class I legal heirs of late original owner of suit property, they would exclude other heirs and inherit properties equally among themselves—There is no question of ancestral interest in suit property as against plaintiffs. (Paras 10, 11, 12, 14 and 15)
(B) Hindu Law—Partition—[Article 109 of Limitation Act, 1963]—Appeal by unsuccessful plaintiff—If anyone claims any share in property by claiming that it is ancestral in nature, it should be established that there was an ancestral property and it remained so without any partition until death of respective coparcener—Since appellants omitted to prove very cause of action itself, question of limitation will not arise—In any context, appellants did not prove that they got any right or interest in suit properties and further that, they are eligible to get any share in suit properties—Trial Judge is right in appreciating evidence and dismissed suit—Appeal Suit dismissed. (Paras 15 and 19)
Result: Appeal Suit dismissed.
JUDGMENT
R.N. Manjula, J.—This Appeal Suit has been preferred challenging the judgment and decree of the learned Additional District Judge (Fast Tract Court), Theni, dated 04.02.2019 made in O.S. No. 46 of 2017.
2. The appellants are the plaintiffs in the suit; the suit has been filed by the plaintiffs for the relief of partition; according to the case of the plaintiffs, the suit property belonged to the plaintiffs as their ancestral property; it was purchased in the name of one Kalappa Gounder from and out of the joint family income by virtue of three registered sale deeds, dated 28.02.1955, 15.10.1956 and 18.01.1974 respectively; the properties were enjoyed by the joint family members; Kalappa Gounder died on 07.04.2004; during his life time, he mortgaged the suit properties with Bodinaiyakkanur Co-operative Housing Building Society Limited and availed a loan of Rs.3,50,000/- (Rupees Three Lakhs and Fifty Thousand only); Kalappa Gounder had one son and five daughters; after the demise of Kalappa Gounder, his wife and five daughters had jointly executed a registered General Power Deed in respect of his son, i.e., Murugavel, who is the 1st defendant in the suit; on 21.09.2005, Murugavel for himself and as a power agent for his mother and sisters had executed the sale deed in respect of the suit properties in favour of the 2nd defendant; by virtue of the sale deed, the earlier mortgage loan pending with Bodinayakkanur Co-operative Housing Building Society Limited was discharged; a sum of Rs.34,306/- (Rupees Thirty Four Thousand Three Hundred and Six only) which was a debt due by Kalappa Gounder to the 2nd defendant was also discharged; despite the sale deed was executed, it could not be registered because of the non-payment of the correct registration fee by the 2nd defendant; only on 17.05.2017, the deficit fee was paid and the sale deed got registered; the sale deed was executed by Murugavel for himself and as a guardian for his two minor sons, who are the 5th and 6th plaintiffs; no permission was sought from the Court for selling the minor’s property; hence, the sale deed is null and void; the 1st and 3rd plaintiffs are the daughters of the 1st defendant and 5th and 6th plaintiffs are the sons of the 1st defendant; the 2nd plaintiff is the minor son of the 1st plaintiff and 4th plaintiff is the minor son of the 3rd plaintiff; they are represented by their mothers and guardian respectively; at the time of executing the sale deed, the 1st plaintiff was a major and she did not sign the sale deed; the 3rd plaintiff was a minor daughter of the 1st defendant and permission was not obtained for selling the suit properties and hence, she has got an interest; since the wife, daughters and sons have equal shares in the suit properties and the wife and daughters had relinquished their rights in the suit property in favour of Murugavel and he has full right over the suit properties; being the children of Murugavel, his two sons and two daughters along with Murugavel would get 1/5th share each in the suit properties; the sale deed executed by Murugavel does not have legal validity as against the plaintiffs; the 2nd defendant had executed a mortgage deed in favour of the 3rd defendant on 01.06.2017 and that will also not bind the plaintiffs in the interest of the suit properties; hence, the plaintiffs have filed a suit for preliminary decree for partition by claiming 1/10th share for the plaintiffs 1 to 4 each and 1/5th share for the 5th and 6th plaintiffs and also to declare the sale deed dated 21.09.2005 and mortgage deed dated 01.06.2017 as null and void and for further relief of permanent injunction restraining the 2nd and 3rd defendants from alienating or making any encumbrance in the suit property till the disposal of the appeal.
3. The 1st defendant remained exparte; the 2nd and 3rd defendants resisted the suit by stating that Kalappa Gounder had purchased the suit property from and out of his own funds; he was working as a Manager
(1) If a Hindu male inherits property in accordance with Section 8 of Hindu Succession Act, 1956, property so inherited by him would be his self-acquired property and it cannot be considered as ances....
A claimant must prove the ancestral nature of properties to claim entitlement under the amended Hindu Succession Act; mere assertions without evidence are insufficient.
The burden of proof lies on the person claiming property as self-acquired to establish that it was acquired without the aid of joint family funds.
The burden of proof is on the party asserting that the property is joint family property, and unless the foundational facts are established, the property will be deemed to be the self-acquired proper....
The amendment of co-parcenery rights retroactive effects and joint possession presumption prevent claims of ouster without substantial evidence.
The ancestral nature of property was affirmed, and a Will executed by a deceased patriarch in favor of an illegitimate child was recognized as valid for 1/3rd share, pending partition.
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