Muthusamy Gounder Vs Soliammal

Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, against the Judgment and Decree passed in A.S.No.30 of 2004, dated 18.02.2005 on the file of Sub Court, Karur reversing the Judgment and Decree passed in O.S.No.489 of 2001, dated 23.02.2004 on the file of Principal District Munsiff Court, Karur.

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S.A.(MD)No.985 of 2005

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1.Muthusamy Gounder 2.Manian ...Defendants/Appellants/Appellants

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-Vs-

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Soliammal

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...Plaintiff/Respondent/Respondent

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S.A.(MD)Nos.734 & 985 of 2005

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Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, against the Judgment and Decree passed in A.S.No.45 of 2004, dated 18.02.2005 on the file of Sub Court, Karur confirming the Judgment and Decree passed in O.S.No.489 of 2001, dated 23.02.2004 on the file of the Principal District Munsiff Court, Karur.

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For Appellants : Mr.C.Lakshmanan for M/s.V.Muthukamatchi (in both SA's) For Respondent : Mr.V.Suresh (in both SA's) * * * * *

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COMMON JUDGMENT

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These Second Appeals have been filed against the Judgment and Decree passed in A.S.Nos.30 and 45 of 2004, dated 18.02.2005 on the file of Sub Court, Karur reversing the Judgment and Decree passed in O.S.No.489 of 2001, dated 23.02.2004 on the file of Principal District Munsiff Court, Karur.

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2.For the sake of convenience, the parties are referred to as per their ranking in the Trial Court.

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3.The defendants in O.S.No.489 of 2001 on the file of the Principal District Munsif Court, Karur are the appellants herein in both the Second Appeals.

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S.A.(MD)Nos.734 & 985 of 2005

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4.

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4. The plaint averments in brief are as follows:-

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The fact of the case is that the plaint schedule properties are owned by Veerapa Gounder. The first defendant and the plaintiff are brother and sister. The second defendant is the son of the first defendant. Nallamal is the wife of Veerapa Gounder. The property is the self acquired property of Veerappa Gounder. Veerappa Gounder has died intestate. Therefore, his legal heirs Nallammal and the plaintiff and the first defendant are entitled to the properties. Nallammal has also died intestate leaving the plaintiff and the first defendant as the legal heirs. Since the property is the self acquired property of Veerapa Gounder, the plaintiff and the first defendant are entitled to ½ share of the properties. Therefore, they filed the suit for passing preliminary decree for ½ share in the plaint schedule properties.

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5.The defendant filed a written statement and contested the suit. The defendant specifically denied the contention in the plaint and further contented that Veerappa Gounder has purchased the property from the income of the ancestral property and the plaint schedule property is the joint family property. It is not self acquired property of Veerappa Gounder. After the death of Veerappa Gounder, the plaintiff and the first defendant are equally entitled for

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S.A.(MD)Nos.734 & 985 of 2005

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½ share in the property. Therefore, the plaintiff is entitled for only ½ share, besides the plaintiff has orally relinquished her ½ share to the first defendant a long back. Under such circumstances, the plaintiff is not entitled to claim any share over the plaint schedule property and thus pleaded to dismiss the suit.

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6.On the basis of the above said pleas set out by the respective parties, the

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following issues were framed by the trial Court for consideration: -

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“ 1.jhth nrhj;Jf;fs; thjpapd; je;ijf;F ghj;jpag;gl;l jdpg;gl;l nrhj;Jf;fsh?

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2.jhth nrhj;Jf;fs; g+h;tpf nrhj;jpypUe;J te;j tUkhdj;ijf; nfhz;Lk;> g+h;tpfr; nrhj;ij tpw;w gzj;jpypUe;Jk; thq;fg;gl;lnjd;gJ cz;ikah?

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3.thjpf;F tof;fpy; NfhhpAs;s ghfg;gphptpidg; ghpfhuk; fpilf;ff; $bajh?

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4.jhth nrhj;Jf;fisg; nghWj;J thjp mtUf;Fs;s chpikia tpLjiy nra;J nfhLj;J tpl;ljhf gpujpthjpfs; jug;gpy; $wg;gl;Ls;sJ Vw;ff;$bajh?

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5.NtW vd;d ghpfhuk;?

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7.Before the trial Court, in support of the plaintiff's case, the plaintiff herself examined as P.W.1 and one Mani examined as P.W.2 and 6 documents

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have been marked as Ex.A1 to Ex.A6. On the side of the defendants, the first

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defendant was examined as D.W.1 and 13 documents have been marked as

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Ex.B.1 to Ex.B13.

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S.A.(MD)Nos.734 & 985 of 2005

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8.The trial Court after considering the submissions of the Counsel for the parties and the evidence on record decreed ¼ share to the plaintiff and thus passed the preliminary decree as the plaintiff is entitled for ¼ share in the suit schedule property. Aggrieved by this Judgment and Decree, the plaintiff has filed a suit in A.S.No.30 of 2004 and the defendant filed an appeal in A.S.No.45 of 2004.

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9.On considering the evidence on record, the first appellate Court has allowed the appeal in A.S.No.30 of 2004 and set aside the Judgment and Decree of the trial Court in O.S.No.489 of 2001, dated 23.02.2004 and modified and granted preliminary decree of ½ share to the plaintiff and decreed the suit filed by the plaintiff in A.S.No.30 of 2004 and dismissed the appeal filed by the defendant in A.S.No.45 of 2004. Aggrieved over the same, the defendant has filed a Second Appeal before this Court.

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10.This Court while admitting the Second Appeal has framed the following substantial questions of law :-

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1.Whether the 1^st Appellate Court not erred in holding that the suit properties are self acquired properties and the existence of joint family property not formed the nucleus for acquisition of the suit property?

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2.Whether the 1^st Appellate Court erred in not holding that the Appellant/Defendant discharged the onus of proving that the suit property is a joint family property and the onus is shifted to the respondent/plaintiff to prove that it is a self acquired property?

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3.Whether the 1^st Appellate Court right and granting half of the share to the respondent/plaintiff in absence of any proof that the suit properties are self acquired property of the father of the plaintiff and the 1^st defendant?

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11.The learned Counsel appearing for the appellants submitted that the property is the joint family properties of Veerappa Gounder and the first defendant. After the death of Veerappa Gounder, the first defendant is entitled to ½ share with Veerappa Gounder and in the Veerappa Gounder share of ½ share, the plaintiff and the first defendant are equally entitled for ¼ share. The learned Counsel appearing for the appellants further contented that the plaintiff a long back, has orally relinquished for ½ share in favour of the first defendant. Therefore, she had no share in the plaint schedule properties. The first appellate Court has not considered the fact and erroneously came to the conclusion that the plaintiff is entitled for ½ share and allowed the appeal filed by the plaintiff and dismissed the appeal filed by the defendant. Hence, the Judgment and Decree of the first appellate Court is not sustainable and thus pleaded to allow both the Second Appeals.

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12.The learned Counsel appearing for the respondent supported the Judgment and Decree of the first appellate Court in A.S.No.30 of 2004 and further contended that assuming that the property is the joint family property and purchased from the income of the joint family property stands in the name of the Veerappa Gounder.

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13.In view of the law settled by the Hon'ble Supreme Court, Vineeta Sharma Vs. Rakesh Sharma and others reported in 2020 (9) SCC 1, the plaintiff is entitled to ½ share, it has to be treated as co-parcenar, who is having every right equally with the other co-parcenars. Therefore, the plaintiff is entitled for ½ share and there is no ground to interfere in the findings of the first appellate Court in A.S.No.30 of 2004 and seeks to dismiss both the Second Appeals.

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14.I have considered the matter in the light of the submissions made by the learned counsel on both sides and perused the materials available on records.

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15.Further, on perusal of the records, the facts reveals that the property stands in the name of Veerappa Gounder, it is evidence by sale deed Ex.A1, dated 12.03.1966. The plaintiff is the daughter and the first defendant is the son of Veerappa Gounder. Veerappa Gounder has died intestate. His wife Nallammal has also died intestate. The legal heirs of Veerappa Gounder are the plaintiff and the first defendant. The relationship between the parties are admitted.

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16.Assuming the property purchased by Veerapa Gounder from the income of the ancestral property, though no evidence for that. In view of the law settled by the Hon'ble Supreme Court in Vineeta Sharma Vs. Rakesh Sharma and others reported in 2020 (9) SCC 1, daughters also to be considered as co-parcenars and she is entitled for equal shares in the co-parcenar's property. Therefore, the plaintiff's daughter is entitled to get equal share with son. Therefore, in either case, the plaintiff and the first defendant are legal heirs of Veerappa Gounder who are entitled to get equal shares in the property stands in the name of Veerappa Gounder. Therefore, the first appellate Court has decreed in favour of the plaintiff and passed the preliminary decree in favour of the plaintiff for ½ share is legally sustainable one.

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S.A.(MD)Nos.734 & 985 of 2005

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17.Further, I have considered the arguments placed by the learned Counsel appearing for the appellants. But the plaintiff relinquishes her right over the ¼ share in the plaint schedule property. Admittedly, there is no written documents for relinquishing her right over the immovable property. The right over the immovable property cannot be transferred orally in the values more than Rs.100/-. Admittedly, the properties are more than value of Rs.100/-. Therefore, the oral relinquishment of right over the immovable property of ¼ share is legally unsustainable. Therefore, the arguments of the learned Counsel appearing for the appellants have no merits. Apart from the pleadings, the plaintiff has orally relinquished ¼ share in the plaint schedule property. Under these circumstances, the arguments placed by the appellants have no merits and rejected.

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18.In the absence of any evidence for relinquishment and in view of the legal position settled by the Hon'ble Supreme Court in Vineeta Sharma Vs. Rakesh Sharma and others reported in 2020 (9) SCC 1 , the plaintiff is entitled for ½ share in the plaint schedule property. Therefore, the first appellate Court has rightly allowed the appeal filed by the plaintiff in A.S.No.30 of 2004 and dismissed the appeal filed by the defendant in A.S.No.45 of 2004 and there is

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no grounds for interfere in the Judgment and Decree of the first appellate Court. These second appeals have no merit and fail and liable to be dismissed.

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19.In the result, these Second Appeals are dismissed. The Judgment and Decree of the first appellate Court in A.S.Nos.30 of 2004 and 45 of 2004, dated 18.02.2005 on the file of Sub Court, Karur, are hereby confirmed and the defendants are entitled for equity as passed by the trial Court. No costs. Consequently, connected miscellaneous petition is also closed.

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21.01.2025

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NCC : Yes/No Index : Yes/No Internet: Yes/No RJR

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To