A. SARASWATHY Vs. THANGAMUTHU AND ORS.

JUDGEMENT

(1.) This Second Appeal has arisen out of the Judgment and Decree of the Learned Principal District Judge, Erode dated 24.08.1999 made in A.S. No. 87 of 1999. A. Saraswathi, the appellant in the second appeal filed the suit O.S. No. 727/1996 on the file of the Principal District Munsif, Erode for partition and separation of her 1/4th share in the suit property, a house property in Erode Town. She claimed that the said property was the separate property of her father Kuppanna Gounder, who died intestate about 35 years prior to the filing of the suit and that by virtue of the rule of succession provided under the Hindu Succession Act, 1956 she became entitled to a share in the suit property as one of the legal heirs of Kuppanna Gounder. Kuppanna Gounder left behind him according to the appellant/plaintiff two daughters, namely the plaintiff Saraswathi and the 8th defendant Pavathal and two sons by names Ponnusamy and Thangamuthu besides his widow Chinnammal and all of them became entitled to an equal share in the property left by Kuppanna Gounder. Thus on the death of her father Kuppanna Gounder, the appellant/plaintiff became entitled to 1/5th share. Subsequently, Chinnammal, the widow of Kuppanna Gounder died and his 1/4th share devolved equally among her sons and daughters. Thus the share of all the four persons (two sons and two daughters of Kuppanna Gounder) got increased to 1/4th each. Out of the two sons of Kuppanna Gounder, Ponnusamy is no more and his legal heirs (wife and daughter) are respondents 2 to 7/defendants 2 to 7. The other son of Kuppanna Gounder, namely Thangamuthu is the first respondent/first defendant. Based on the above said contentions, the appellant/plaintiff prayed for a decree directing partition of the suit property into four equal shares and allotment of one such share to her and for separate possession of such share allotted to her.

(2.) The respondents 1 and 8/defendants 1 and 8 (Thangamuthu and Pavathal) did not resist the claim of the appellant/plaintiff. On the other hand, they supported the claim of the appellant/plaintiff. The first respondent/first defendant Thangamuthu not only supported the case of the appellant/plaintiff but also prayed for separate allotment of 1/4th share and paid necessary court fee for such allotment. Out of the six legal heirs of Ponnusamy, namely respondents 2 to 7/defendants 2 to 7, the second respondent/second defendant alone contested the case and the others remained ex-parte before the trial court. According to the contention raised by the second respondent/second defendant, the suit property was not the self acquired property of Kuppanna Gounder and on the other hand, the same was the joint family property in which her husband Ponnusamy, her husband's brother Thangamuthu (first respondent/first defendant) and her father in law Kuppanna Gounder alone were entitled to shares as coparceners. She contended further Kuppanna Gounder died prior to the enforcement of Hindu Succession Act, 1956 and on his death, the interest held by the Kuppanna Gounder in the suit property devolved on his sons Ponnusamy and Thangamuthu as surviving coparceners and that therefore neither the appellant/plaintiff nor the 8th respondent/8th defendant could make claim defendant shares in the property left by Kuppanna Gounder. It was her further contention that even if the property could be assumed to be the self-acquired property of Kuppanna Gounder since Kuppanna Gounder died prior to the Hindu Succession Act, 1956 coming into force both the appellant/plaintiff nor the 8th respondent/8th defendant stood excluded from inheriting the property of Kuppanna Gounder.

(3.) Based on the above said contentions, necessary issues were framed by the Trial Court and the trial was conducted. The learned Trial Judge, on appreciation of evidence, held that the plaintiff's case that Kuppanna Gounder died 35 years prior to the filing of the suit was proved by preponderance of probabilities and on the other hand, the contention of the 2nd Respondent/2nd Defendant that the death of Kuppanna Gounder took place prior to the Hindu Succession Act, 1956 coming into force was not substantiated and that therefore, the appellant/plaintiff was not excluded from seeking a share in the property of Kuppanna Gounder on his death. The learned Trial Judge further held that it was not proved that the suit property was purchased out of joint family nucleus and that it was proved by preponderance of probabilities that the suit property was the self-acquired separate property of Kuppanna Gounder; that even if it is assumed for arguments sake that Kuppanna Gounder died between 1948 and 1956, the mother of the plaintiff would have been entitled to the widow's share, which would have been enlarged into an absolute title on advent of Hindu Succession Act, 1956; and that only in order to deny the same, the 2nd respondent/2nd defendant took a stand that the Chinnammal, wife of Kuppanna Gounder orally relinquished her share in the property in favour of her sons Thangamuthu and Ponnusamy, but there was no proof of the said contention. It is also pertinent to note that till the filing of the suit, the records relating to house tax assessment in respect of the suit property was not changed in the names of the Kuppanna Gounder's sons alone. If at all Kuppanna Gounder had died prior to 1956, his sons would have chosen to get the assessment changed in their names. The very fact that they had not chosen to do so will make it clear that Kuppanna Gounder died only after 1956 and the same was the reason why the assessment was not changed in the names of Thangamuthu and Ponnusamy.