SUNDARAMBAL Vs. DEIVANAAYAGAM

JUDGEMENT

(1.) PLAINTIFFS in O. S. No. 192 of 1977 on the file of the district Munsif, Cuddalore, are the appellants in both the appeals. They filed the suit for declaration of the 1st pl aintiff's title to A schedule property and for recovery of possession of the same besides partition and separate possession of 4/6th share in B schedule properties. The trial Court granted a decree declaring the first plaintiff's title to the A schedule properties and holding that the plaintiff's were entitled to 4/18th share in B schedule properties except in item No. 6 and directing a division thereof. There was an appeal by defendants 1 and 2 in the Court of subordinate Judge, Cuddalore , in A. S. No. 142 of 1979 and another appeal by defendants 3, 4 and 6 in A. S. No. 143 of 1979. The subordinate Judge allowed A. S. No. 142 of 1979 in part and held that the fist plaintiff was entitled only to l/3rd share in the A schedule property and recovery of possession thereof. He dismissed the said appeal in other respects. The learned Subordinate Judge allowed Appeal No. 143 of 1979 and modified the decree of the lower court granting equity claimed by defendants 3, 4 and 6 in the properties purchased by them.

(2.) THOUGH the plaintiffs could have filed one second appeal and questioned the judgment of the lower appellate court, the plaintiffs have chosen to file two second appeals. As they relate to the same subject matter, they were heard together and a common judgment is being delivered now.

(3.) THE learned appellate judge has taken the view that the first plaintiff giving evidence as P. W. 1 admitted the fact that her father-in-law owned 10 acres of land and her deceased ,husband was his only son. THE learned Judge proceeds to state that P. W. 1 was not able to say as to how her husband got A schedule properties and the burden was on her to prove that it was the exclusive property of Velayutha Padayachi as she admitted the existence of joint family properties owned by her father-in-law. THE reason, to say the least, is wholly untenable if not absurd. Once the truth of the settlement deed is accepted, the recitals therein should be given due weight. When it is declared by Velayuth a that the properties covered by the settlement deed were his exclusive properties, the burden is on the defendants to prove that the recital in the settlement deed was a false one and the properties were really ancestral properties or joint family properties. THE defendants have failed to produce any rele ant evidence to prove the same. THE mere existence of some ancestral properties with Velayutha's father would not lead to the conclusion that the A schedule properties were acquired with the income from the ancestral properties or by the sales of ancestral properties. No evidence has been produced by the defendants to show the income from the ancestral properties so as to hold that there was adequate nucleus to enable Velayutha to purchase a schedule properties with the aid of joint family funds. In the absence of any such evidence it has to be held that the A schedule properties were the exclusive properties of Velayutha and the settlement deed in favour of the plaintiffs was valid in law.