BAGIRATHI Vs. S MANIVANNA

JUDGEMENT

(1.) PLAINTIFFS are the appellants.

(2.) PLAINTIFFS are the daughters of one Sundaraja Naicker, whereas the defendants 1 and 2 are the sons and the third defendant is the widow of such Sundaraja Naicker. The suit was filed for partition and injunction. During pendency of the suit, third defendant died. After the death of Defendant No.3, the plaintiffs claimed 1/8th share each in the property and proportionate mesne profits. Sundaraja Naicker died on 9.8.1975. According to the plaintiffs, the disputed property was purchased by Sundaraja Naicker from out of his own earnings and thus his separate property, and the plaintiffs are entitled to equal share as that of the sons, namely, the defendants 1 and 2. The defendants in their written statement, while not disputing the relationship between the parties, have contended that the property in question was the joint family property of the defendants along with their father and therefore after the death of Sundaraja Naicker, the plaintiffs together are entitled to 1/4th share and the defendants together are entitled to 3/4th share. It is stated by the defendants that the vacant land originally belonged to a landlord one Dorai Babu and the superstructure was constructed by Doraisamy Naaicker and Appadurai Naicker, who constituted a joint family. After the death of Doraisamy Niacker, his half share devolved on his widow Karpagambal. Appadurai Naicker had two sons, namely, Sundaraja Naicker through first wife and Ranganathan through second wife. Appadurai Naicker died leaving behind his two sons, Sundaraja Naicker and Ranganathan and his second wife Sundarambal and daughter Radhabai Ammal. All of them are entitled to 1/4th share of the half share of Appadurai Naicker. Subsequently, Karpagambal settled her half share in the property in favour of Sundaraja Naicker under a deed of settlement dated 3.10.1966. Thus, Sundaraja Naicker became entitled to 5/8th share in the superstructure. Thereafter, there was a partition on 1.2.1967, by which the property mentioned in 'D' schedule fallen to the share of Sundaraja Naicker. Subsequently the original landlord had initiated proceedings under the City Tenants Protection Act and ultimately by virtue of the order passed in such proceedings under Section 9, Sundaraja Naicker purchased the land on which the superstructure stood. Since Sundaraja Naicker did not have sufficient income, Defendant No.1, who was already serving, made major contribution for the purchase of such land.

(3.) SUCH a submission, even though found attractive on the face of it, cannot be accepted in view of the well settled principle of law that the property obtained by a co-parcener, even though becomes the separate property qua the quondam co-sharers, if such separated co-sharer has male progeny, such property retains the characteristics as ancestral property so far as his male issues are concerned.