JAYALAKSHMI Vs. DHANASEKARAN

JUDGEMENT

(1.) THE Second Appeal is filed against the judgment and decree dated 16.04.2002 in A.S. No.12 of 2001 on the file of the Sub-Court, Ponneri, reversing the judgment and decree dated 30.03.2001 in O.S. No.556 of 1996 on the file of the District Munsif Court, Ponneri.

(2.) THE averments in the Plaint are as follows:(i) THE First Plaintiff is the mother of Plaintiffs 2 to 4 and Defendant. THE Defendant is the eldest son and kartha of the family. THE First Plaintiff-s husband is Thangavelu. Both of them stayed at Bandikavanoor Village. THE said Thangavelu died in 1980. After his death, the First Plaintiff along with Plaintiffs 2 to 4 and Defendant had purchased a house site in the Village and constructed a thatched house and living thee as joint family.(ii) In 1991, they purchased the suit property, which is a vacant site out of the joint family fund through the registered Sale Deed dated 20.02.1991. THEy constructed a Pucca brick built house out of the joint nucleus. All the Plaintiffs and Defendant are residing in the property. No partition is effected so far. Since, the Defendant is the eldest male member of the family and kartha of the family, the property has been purchased in his name. He has no other independent source of income. THE brick building was constructed in the year 1992. All the Plaintiffs are having equal rights in the suit property. THEy reserve their right to file a Suit for partition.(iii) Now, the Defendant attempted to alienate the property, so the Plaintiffs are constrained to file a Suit for permanent injunction restraining the Defendant from alienating in any manner or assigning in favour of the third parties, without the knowledge and consent of the Plaintiffs and they prayed for a decree.

(3.) AT the time of admission of the Second Appeal the following substantial questions of law have been framed for consideration:i. Whether a property purchased in the name of the Kartha of a Hindu Undivided Family can be claimed to be the absolute property of the Kartha?ii. Whether the Kartha of a Hindu Undivided Family has the primary duty and burden of proof cast upon him to show that the property standing in his name is not the Joint Family property, but his own absolute property?iii. Whether the Lower Appellate Court was right in not considering the effect of Section 101 and Section 114 of the Indian Evidence Act, with regard to the burden of proof and the presumption to be drawn in favour of the Appellant?