SAMANDHI Vs. ARUMUGAM

JUDGEMENT

(1.) The plaintiff is the appellant before this Court. She has filed the suit for partition contending that the first defendant is her father, the second defendant is the concubine of the first defendant and the third defendant was born to her father-D1 through D-2-concubine. It is alleged by her that the third defendant is an illegitimate child. The suit properties are ancestral agricultural properties inherited by the first defendant, being Kartha of the joint family and that as the ancestral properties are not in dispute, the plaintiff would be entitled to the relief of partition on the ancestral properties. It is also further contended that the plaintiff was born to the first defendant through Ranganayaki, who is alleged to be the wife of the first defendant. The plaintiff got married in Sept. 1989 and became co-parcener to the properties and hence, the plaintiff filed the suit for partition.

(2.) The defendants, who are the respondents herein, took a stand that the appellant/plaintiff had no inclination to give a share of her properties to the defendants, as they are separate properties and the plaintiff was born out of the illegal relationship between Ranganayaki and Annamalai. Even assuming for the sake of argument without admitting that she was born to the first defendant, her marriage has not taken place prior to the coming into force of the Act 1 of 1990 (Hindu Succession Act, 1989) and only after amendment, the marriage has taken place and the plaintiff has not established the date of marriage and that the defendants have contended and established before the trial Court that the marriage has taken place as early as in 1989. It is the contention of the plaintiff that the marriage had taken place only after the amendment of the Act 1 of 1990 (The Hindu Succession Act, 1989). The property being separate properties, the plaintiff would not be entitled to any relief.

(3.) The trial Court held that the plaintiff is not the daughter of the first defendant and that the plaintiff failed to prove that she was born to Ranganayaki and the first defendant and she also failed to prove the date of marriage. On these findings, the trial Court non-suited the plaintiff from getting the relief, thereby, the suit was dismissed. As against the judgment and decree of the trial Court, the unsuccessful plaintiff preferred appeal before the lower appellate Court, which reversed a finding with regard to the aspect that she is the daughter born to Ranganayaki and the first defendant in the suit. The first appellate Court held that the plaintiff was born to the first defendant. However, the lower appellate Court has held that the plaintiff has not produced evidence to show that she has married only after 1989. It was further observed that the plaintiff looses her right to the properties, as she got married prior to 1989, i.e. after enactment of the said Act, 1956 and that the character of ancestral properties ceased to exist. The lower appellate Court further held that the properties, though, in the name of the father of the first defendant, when there is a partition among the sons, including the first defendant and his brother, it becomes self-acquired / separate properties of the first defendant and not the ancestral properties. The lower appellate Court further held that the right of the first defendant to the properties becomes absolute and the plaintiff looses her right as she has married even prior to 1989. It was further observed by the lower appellate Court that the plaintiff cannot have right over the suit properties, as the subject matter of the properties, is ancestral properties and that the suit properties are separate properties of the first defendant. Aggrieved by the above findings of the lower appellate Court, i..e the concurrent findings of the Courts below, the present Second Appeal has been preferred by the plaintiff.