Dismissed¶174

C.Murali v. S.Kumar @ Kumarasami

Madras HC12 Mar 2025SA/1229/2009

Case brief

AI extract

What is this about?

Second appeal dismissed; partition; joint family property versus self-acquisition; burden of proof on kartha/manager; adverse inference for kartha's non-appearance; PW2 evidence against registered document recitals upheld; conduct of parties; nucleus; deficiency of pleadings cured by going to trial (Ram Sarup Gupta, AIR 1987 SC 1242); legal necessity not established; pendente lite purchaser / lis pendens; ancestral recitals in Ex.A2/Ex.B7; woman member of joint family though not coparcener; plaintiff allotted 1/3rd share confirmed; Madras High Court; N. Sathish Kumar J.; Section 100 CPC.

What did the court decide?

None to the appellant; the second appeal is dismissed with no costs, leaving intact the decree of the Courts below granting the plaintiff a 1/3rd share in the suit property. ¶174

C.Murali Vs S.Kumar @ Kumarasami — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

None to the appellant; the second appeal is dismissed with no costs, leaving intact the decree of the Courts below granting the plaintiff a 1/3rd share in the suit property.

¶174

Issue for consideration

Substantial question 1: Whether the Courts below were right in holding that the properties acquired by Karuppathal and Ramasami Gounder under Exs.B2 and B3 are joint family properties available for division, in the absence of any indication to that effect in the documents themselves. +4 more

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Court's answer

Though Exs.A1/Ex.B2 do not indicate that the grandparents' purchases were made out of joint family nucleus, the conduct of the parties treating the properties as joint family/ancestral property cannot be ignored; Ex.A2 and Ex.B7 make clear that all sons and daughters were parties and averred the property to be ancestral.

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Ratio / Principle

It is common in a Hindu joint family to purchase property in the name of the elder member; merely because the property stood in the name of the elder family member with no indication of nucleus in the document, it cannot be said to be self-acquired property.

¶116

Key takeaways

Deficiency in pleadings regarding the nucleus is immaterial where the parties understood the case and proceeded to trial on all issues by producing evidence; it is thereafter not open to the parties to raise the question of absence of pleadings (proposition taken from Ram Sarup Gupta).ratio¶112
As far as a claim for partition is concerned, mere recitals in documents are not determinative; the conduct of the parties in how they treated the property is relevant, and therefore the evidence of PW2 cannot be ignored merely because the document to which she was a party is silent about the joint family nucleus.ratio¶117

Detailed headnote1 paragraphs

Madras High Court, S.A.No.1229 of 2009 (N. Sathish Kumar, J.; pronounced 12.03.2025) — Partition. The plaintiff, son of defendants 1 and 2, claimed a 1/3rd share in property purchased by his grandparents Karuppathal and Ramasami Gounder under sale deeds of 1946 and 1959 and conveyed by them to defendants 1 and 2 in 1974; defendants 1 and 2 thereafter sold to the fourth defendant (appellant) on 10.03.2005, after presentation of the suit. Five substantial questions addressed: (i) joint-family character of the grandparents' acquisitions absent nucleus recitals in Exs.B2/B3; (ii) reliance on PW2 (grandmother, party to the conveyance) speaking against document recitals; (iii) whether the 1974 sale, allegedly to discharge family debts, bound the plaintiff; (iv) want of pleading/proof of ancestral nucleus for the Ex.B7 property; (v) whether property standing in a female's name is her separate property. Held: recitals are not determinative in partition claims; the parties' conduct and the ancestral recitals in Ex.A2/Ex.B7, corroborated by PW2's testimony that the purchases came from joint family nucleus, establish joint family character; a deficiency in pleadings is cured when parties go to trial (Ram Sarup Gupta). Where the manager/Kartha asserts self-acquisition, the burden lies on him; the Kartha avoided the witness-box, drew an adverse inference, and legal necessity for the sale was not established. Defendants 1 and 2 never challenged the concurrent finding of joint family character; the appellant being only a pendente lite purchaser could not canvass their case, his purchase remaining subject to the decree. Second appeal dismissed; no costs.

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SA. No.1229 of 2009

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on : 05.03.2025 Pronounced on : 12.03.2025

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CORAM

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THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR

S.A.No.1229 of 2009

C.Murali

.. Appellant

Versus

1.S.Kumar @ Kumarasami 2.R.Shanmugasundram (Died) 3.Rajalakshmi (Died) (R2 and R3 died. R1 and R4 are recorded as legal heirs of the deceased vide order dated 14.12.2020 made in S.A.No.1229 of 2009 as per memo dated 14.02.2020 by VPNJ)

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4.Kalaiselvi .. Respondents

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Prayer: Second appeal filed under Section 100 of Civil Procedure Code, against the judgement & Decree passed in A.S No.5 of 2009 dated 13.07.2009 on the file of learned Principal District Judge, Coimbatore confirming the judgement and decree passed in OS No. 122 of 2005 dated 23.04.2004, by the learned Principal Subordinate Judge, Coimbatore.

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For Appellants : Mr.T.M.Hariharan For Respondent : Mr.N.Sridhar for Mr.R.Bharath Kumar R2 and R3 died R4 exparte

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