PONNUSWAMY Vs. MEENAKSHI AMMAL

JUDGEMENT

(1.) THE plaintiff, who was partly successful in O. S. No. 76 of 1978 on the file of the Sub-Court, Udamalpet, is the appellant in this appeal. THE respondents herein are the defendants in the suit.

(2.) THE material allegations in the plaint are as follows: the plaintiff, who is the appellant herein, is the only son of his father Kuppuswamy Goun-der and his mother the first respondent herein. Defendants 2 to 5, Who are respondents 2 to 5 herein, are his sisters. THE appellant and his father Kuppuswamy Gounder were members of a joint family for which his father was the joint family manager. His father died on 6-7-1977 leaving behind the appellant and the respondents as his legal representatives. THEre was no partition during his lifetime. THE properties described in the second schedule of the plaint belonged to the joint family consisting of the appellant and his father Kuppusamy Gounder. Respondents 2 to 5 got married and they have settled in different places. After the death of Kuppusamy Gounder , the respondents also became entitled to a share in the plaint schedule properties as per law. THE debts payable by the family to the tune of Rs. 24 ,000 are described in the third schedule of the plaint. THE appellant is entitled to 7/12th share in the suit properties and each of the respondents is entitled to l/12th share in the same. After the death of the appellant's father, the appellant and the respondents were enjoying the suit properties as co-owners. But, however, later on misunderstandings arose between them. THE second respondent issued a notice on 6-10-77 to the appellant and other respondents calling upon them to effect a partition for which the appellant caused a suitable reply notice on 27-10-77 expressing his willingness for partition of the suit properties by metes and bounds, Now respondents 1 to 5 are colluding together and they have prevented the appellant from cultivating the suit properties, and from realising any income. THE house described as item B in the second schedule of the plaint is a dwelling house, and the respondents have no share in the said house. In these circumstances, the present suit for partition was filed.

(3.) THE only short point to be decided in the present appeal is, whether the house property described as item B in schedule 2 in the plaint was the joint family property or the self-acquired property of the father late Kuppuswami Gounder , learned counsel appearing for the appellant points out that nowhere in the pleadings, the respondents have raised the plea that the house property was the separate property of late Kuppuswami Gounder. In paragraph 3 of the written statement, the following passage occurs: "the properties mentioned in the plaint belonged to one Poonusamy Gounder who is the father of Kuppusamy Gounder and the grandfather of plaintiff and respondents 2 to 5. Upto the death of the father of the plaintiff, the properties were under full control of him and not with the plaintiff. " Even in the lawyer's notice dated 6-10-77 marked as ex. A. 1 issued on behalf of the second respondent, it was specifically claimed that the landed properties and the house property were the properties of the grandfather Ponnusamy Gounder , after his death, the father Kuppuswami Gounder was in possession and management of the joint family properties. Thus it is seen that the respondents have now come forward with a case that the house property was the self-acquired property of late kuppuswami Gounder. Nobody was examined on the side of the respondents to speak about this fact in evidence. However, during the course of trial the respondents produced a sale deed dated 21-7-36 in the name of the deceased Kuppuswamy Gounder marked as Exhibit B-2 with a plain attached to the sale deed. It was solely on the basis of this sale deed, the lower Court held that the house described as item B to the plaint schedule-2 was the separate property of the deceased Kuppuswami Gounder.