P ARUL Vs. P SEKARAN

JUDGEMENT

(1.) The present second appeal has been brought by the second defendant and his four sisters, aggrieved by the judgment and decree passed by the learned first appellate Court in A.S. No.40 of 2006, dated 26.10.2006, reversing the judgment and decree passed by the learned trial Court in O.S.No.423 of 2004, dated 30.06.2005.

(2.) The facts leading to the filing of the second appeal is given as under:-

(3.) A written statement was filed by the first defendant, stating that the suit property was allotted by the Government in the year 1953, in the name of his mother, Late Murugammal. After allotment of equal share --- half share to first defendant and another half share to one Velu, who is the brother of the first defendant --- this property cannot be treated as joint family property, so as to make a claim by the plaintiff. During cross-examination, the plaintiff produced various evidence to convince the trial Court that the suit property is a joint family property. According to the plaintiff, when he was serving in the Indian Army, every month, though he was getting a monthly salary of Rs.145/- to Rs.173/- from the years 1970 to 1974, he used to send Rs.60/- to his father by way of money order. By receiving all these money, the first defendant has constructed a house on the suit property, therefore, having received the contribution from the plaintiff by the first defendant and when he has not received any contribution from his second son or any other daughters, the question of quantum cannot be taken into account. Though the cost of the construction of the house was Rs.2 lakhs, but only the contribution alone should be taken into account for the purpose of considering the prayer for partition of the suit property. One another document was also pressed into service before the trial Court-Ex.B31. As per the said document, since the plaintiff's father, who is the first defendant herein, has on his own, treated the suit property as joint family property, the intention is very clear that the suit property is joint family property. On that basis, a claim was made to decree the suit as prayed for. One another aspect needs consideration is, during the pendency of the suit, as the plaintiff's father passed away, the plaintiff also by moving appropriate amendment application, sought for grant of 1/3rd share and in addition to 1/3rd share, he has also pleaded for 7/18 share. The trial Court, considering the case of both sides, finding the admission made by the plaintiff that the cost of the house was Rs.2 lakhs and though the plaintiff's contribution was very negligible, namely, a sum of Rs.3600/-, dismissed the suit, applying the rule that a property owned by a family member in the family, cannot be treated as ancestral property or joint family property. Aggrieved by the said judgment, when appeal was preferred, the learned first appellate Court reversing the judgment and decree passed by the trial Court has given a finding that the suit property is a joint family property and therefore, the plaintiff is entitled to have a share. Aggrieved by the same, the present second appeal has been filed by the defendants.