MUTHAMMAL Vs. M. NATARAJNAM

JUDGEMENT

(1.) Plaintiffs in O.S. No. 291 of 90, on the file of the Subordinate Judge, Tirupur, aggrieved by the dismissal of their suit filed the above appeal.

(2.) The case of the plaintiffs as set out in the amended plaint is briefly stated here under:- The suit properties originally belonged to one Marappa Gounder, son of Nanjappa Gounder of Murugam Palayam, Veerapandi village Tirpur taluk as his self acquired properties. The first plaintiff is the wife. The first defendant is the only son of the said Marappa Gounder. The said Marappa Gounder died intestate in the year 1953 leaving behind the first plaintiff and the first defendant as his only legal heirs. The suit properties devolved upon the first plaintiff and the first defendant in equal shares. Both of them are therefore each entitled to a half share in the suit properties. The first plaintiff and the first defendant are in joint possession and enjoyment of the suit properties. When the first plaintiff demanded for a partition of the suit properties the first defendant had been postponing under some or other untenable pretexts. Therefore, the first plaintiff issued notice thorough her counsel to the defendants on 12.3.1990 demanding partition. The 2nd defendant claims to have purchased a portion of the suit properties from the first defendant. The first defendant gave a reply on 30.3.1990 denying the right of the 1st plaintiff to have partition on incorrect and untenable grounds. In the reply notice it is stated that Marappa Gounder died only on 23.9.1949 and that the first plaintiff had relinquished all her rights in favour of the fast defendant are false. The claim of the fast defendant that the lands in S.F. No. 1-96/1 and 196/5 were purchased by him with his own funds is also incorrect. As the only male member in the family, he was looking after the family properties. The purchase, if any, could have been made only with funds realised by selling the family properties. Therefore, all the properties are liable to be partitioned. Even assuming that Marappa Gounder died only on 23.11.1949 still the fact that the 1st plaintiff has become the owner of the 1/2 share in the suit properties as per the provisions of the Hindu Women's Rights to Property Act, 1937 and the Madras Hindu Women's Right to Property (Extension to Agricultural Lands) Act 26 of 1947 and by virtue of Sec. 14(1) of the Hindu Succession Act, 1956, cannot be denied. Ever since the death of Marappa Gounder the entire properties including the suit properties were enjoyed jointly by the 1st plaintiff and the 1st defendant. The alleged sale by the first defendant in favour of the 2nd defendant is sham and nominal and was never acted upon. The 1st plaintiff executed a Settlement Deed in favour of the 2nd plaintiff on 7.6.1990, the property mentioned in item 1 of 'A' Schedule properties. The Settlement Deed is void ab initio and not acted upon. The 2nd plaintiff filed an application in I.A No. 845/91 to implead her as 2nd plaintiff in the suit and the same was allowed and the 2nd plaintiff was added as a formal party to the suit. Therefore, the plaintiff prays for a decree directing the division of the plaint schedule A and B properties into two equal shares by metes and bounds and allotting one such share in the plaint A and B schedules to the plaintiff.

(3.) The first defendant filed a written statement wherein it is stated that the suit is speculative and an attempt to blackmail the first defendant. The suit claim is totally devoid of merits and the plaintiff is not entitled to any relief. It is the plaintiffs junior most son-in-law Nachimuthu has come forward with this false suit in the name of the plaintiff to make immoral and illegal gain to harassing the 1st defendant. The plaintiff has neither title nor possession in the suit properties. She never exercised any right of ownership nor she has the animus of ownership in the suit properties at any point of time. When there is no animus of ownership and possession. Sec. 14(1) of the Hindu Succession Act, 1956 is not attracted. Ever since the death of her husband the plaintiff has been with the 1st defendant, who after becoming a major, has been taking care and looking after the plaintiff with all love and affection as a dutiful son. She has been under the care of her only son the 1st defendant. Her possession in the house of the 1st defendant was only as a mother in the house of her only son and not in any other capacity much less as a person exercising any title or right. Marappa Gounder was an agriculturist. He obtained ⅓ share in Item 2 and the entirety of item 7 of the suit property in schedule A and also a house of Murugam Palayam from his father Nanjappa Gounder. As such they are ancestral in character. Item 2 was the best of the lands possessed by the family and the yield therefrom was the maximum. Out of the income from item 2 and 7, Marappa Gounder purchased the residuary in item 2 and item 7. They are also a family properties and from the income from all of them, Marappa Gounder purchased items 3, 4 and 5. As such all the properties are family properties and not the self-acquisition of Marrappa Gounder. The 1st defendant being his only son has right by birth as to 1/2 share therein. The other 1/2 share therein after Marappa Gounder's death was succeeded by the plaintiff and the 1st defendant, each taking 1/4th. The plaintiff was entitled to 1/4th share only and the remaining 3/4 belonged to the 1st defendant. Item 2 was lost to the family. It was purchased by the 1st defendant out of his separate fund about 10 years later. He was doing cotton business and was having independent income. Item 6 is also the self acquisition of the 1st defendant he having purchased it out of his separate funds. This item wholly belonged to the 1st defendant absolutely. The land mentioned in schedule B belongs to the 1st defendant absolutely. It was a minor inam land and when the Tamil Nadu Minor Inam (Abolition and Conversion into Ryotwari) Act came into force in 1965, it vested in the Government. There were proceedings under the said Act for grant of patta in which the plaintiff was a party. Ultimately, the 1st defendant was granted patta in respect of the lands in schedule B in 1974. The order has become final. The plaintiff has no right whatsoever to any part of land in schedule B and cannot seek a partition thereof. The income from the property being insufficient, he had to sell a few portions. He got married in 1970. By that time, all his sisters were married and everything that should be done were done to them. Ever since he became a major he has been in absolute and exclusive possession of the suit properties as the full and absolute owner. The plaintiff was managing the properties for and on behalf of the 1st defendant while he was a minor. Having relinquished his rights if any in favour of her only son after five daughter, the plaintiff has been living with the 1st defendant as an affectionate mother. The first defendant to the knowledge of the plaintiff has been dealing with the properties as the absolute owner right from about 1961. He had been making various alienation's till some time before filing of this suit. The plaintiff never raised her objection. This first defendant has been in exclusive, hostile and open possession of all the properties adverse to every one and repudiating the title of the plaintiff if any and the plaintiff is fully aware of the same. By virtue of such exclusive, hostile, continuous and open possession for over 35 years, he has also perfected his title by ouster and the rights of the plaintiff if any are lost. He also raised several loans on the security of the properties from the State Bank, Land Development Bank, Village co-operative Agricultural Credit Society etc. the plaintiff never raised any objection. On the contrary, she has also given statements confirming the absolute right and title of the 1st defendant. Therefore, she is estopped from claiming any right or share in the property or denying the absolute title of the 1st defendant therein. The suit is also bad for the partial partition.