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2023 Supreme(Online)(Mad) 101406
MADRAS HIGH COURT
K.KANNAMMAL – Appellant
Versus
SUSEELA – Respondent
AS 887 2012
The validity of a Will and the entitlement to share in joint family property.
Headnote:
PARTITION - JOINT FAMILY PROPERTY - WILL - VALIDITY - Plaintiffs and defendants are entitled to equal share except some of the items of the suit properties which were bequeathed by way of Will in favour of the second defendant - The Will which was executed in favour of the second defendant is valid.
Fact of the Case:
The plaintiffs filed a suit for partition of the suit properties, claiming that the properties were joint family properties of both the plaintiffs and the defendants. The defendants resisted the suit, claiming that some of the properties were self-acquired properties of their grandfather, Kandasamy Gounder, and that he had bequeathed those properties to the second defendant by Will dated 12.03.1979.
Finding of the Court:
The court held that the plaintiffs failed to prove that some of the items of the properties were purchased from the income derived from the joint family properties. The court also held that the Will dated 12.03.1979 was valid and that the second defendant had derived title over the suit properties item No.9 to 12 and 15 to 18 after the demise of Kandasamy Gounder in the year 2002.
Issues: 1. Whether the plaintiffs and the defendants are entitled to equal share except some of the items of the suit properties which were bequeathed by way of Will in favour of the second defendant?2. Whether the Will which was executed in favour of the second defendant is valid?
Ratio Decidendi: The court relied on the following principles:- The burden of proof lies on the party who asserts a fact.- A Will must be executed in accordance with the provisions of the Indian Succession Act, 1925.- A Will must be proved by the party who propounds it.
Final Decision: The court dismissed both the appeal suits and confirmed the judgment and decree of the trial court.
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 14.12.2023 CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN AS.Nos.887 of 2012 & 527 of 2013 AS.No.887 of 2012
1.K.Kannammal
2.K.Subramani
3.Kavitha ... Appellants Vs.
1.Suseela
2.Kalaiselvi
3.Karpagam ...Respondents PRAYER:
Appeal Suit is filed under Section 96 of CPC against the judgment and decree of the learned Principal District Judge, Dharmapuri dated 20.03.2012 made in OS.No.55 of 2009.
For Appellants : Mr.I.Abrar Mohammed Abdullah For Respondents : Mr.R.Selvakumar AS.No.527 of 2013
1.Susila
2.Kalaiselvi
3.Karpagam ... Appellants Vs.
1.K.Kannammal
2.K.Subramani
3.Kavitha ...Respondents PRAYER:
Appeal Suit is filed under Section 96 of CPC against the judgment and decree of the learned Principal District Judge, Dharmapuri dated 20.03.2012 made in OS.No.55 of 2009.
For Appellants : Mr.R.Selvakumar For Respondents : Mr.I.Abrar Mohammed Abdullah
COMMON JUDGMENT
Both the appeal suits are arising out of the same judgment and decree of the learned Principal District Judge, Dharmapuri dated 20.03.2012 made in OS.No.55 of 2009, thereby partly allowed the suit for partition.
2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.
3. The appellants in AS.No.527 of 2013 and the respondents in AS.No.887 of 2012 are the plaintiffs. The respondents in AS.No.No.527 of 2013 and the appellants in AS.No.887 of 2012 are the defendants in the suit for partition. The case of the plantiffs is that the suit properties are joint family properteis of both the plaintiffs and the defendants and they are enjoying jointly. Some of the properties were issued patta in the name of Kandasamy Gounder and some of the properties were issued patta in the name of one, Kumaravel. The said Kandasamy Gounder died intestate. Subsequently, the husband of the first plaintiff also died. He had married Pavayee Ammal as his first wife and gave birth to defendants 1 to 3. After demise of the said Pavayee Ammal, he had married the first plaintiff and gave birth to the second and third plaintiffs. After demise of the said Kumaravel, both the plaintiffs as well as the defendants are in joint possession of the suit properties. Therefore, the defendants are not entitled for separate right over the suit properties. The income derived from the suit properties were utilised for the entire family expenses. Therefore, the plaintiffs and the defendants are entitled to get 3/6 share. Hence, the suit.
4. Resisting the same, the second defendant filed written statement stating that after demise of the first wife, the said Kumaravel got married the first plaintiff as second wife. The suit schedule properties item No.9 to 12 and 15 to 18 belong to Kandasamy Gounder. The said properties are self acquired properties and during his life time, he had executed registered Will in favour of the second defendant dated 12.03.1979. In the year 1992, the first wife Pavayee Ammal died. Thereafter, the said Kandasamy also died in the year 2002. After his demise, the Will came into force and as such, the plaintiffs are not entitled to have any share in respect of the properties which were bequeathed in favour of the second defendant. After demise of the said Kumaravel, the plaintiffs 2 and 3 got married and during their marriage, they were presented 30 sovereigns of jewels and Rs.14,000/- cash to each. The entire expenses were borne by the second defendant. Thereafter, due to family arrangement, other schedule properties were given to the second defendant. In fact, the said Kumaravel had obtained loan from the Indian Bank, Pulikarai Branch. It was repaid by the second defendant and thereafter both the plaintiffs and the defendants had pledged the documents with respect to one item of the suit properties and obtained loan from the same bank. Part of the loan amount was also repaid by the second defendant. Therefore, the first plaintiff cannot seek equal share over the property.
5. On hearing the rival pleadings, the learned tri
