In order to be classified as ancestral property in which the descendants acquire a right by birth, it should be shown that it devolved by succession for more than three generations
Citation
CDJ 2020 MHC 1220
A.Gunasekaran and others vs Minor eswara moorthy rep by next friend and guardian mother premakatha and others
JUDGEMENT
(Prayer: Second Appeal filed under Section 100 of C.P.C., to set aside the judgment and decree of the learned II Additional District Judge, Salem dated 29.04.2013 in A.S.No.30 of 2011, preferred against the judgment and decree of the learned II Additional Subordinate Judge, Salem dated 18.08.2010 in OS No.268 of 2005.)
1. The defendants 2 to 6 in OS No.268 of 2005 are the appellants. The said suit was laid by the first respondent claiming 1/6 th share in the suit properties. According to the first respondent, the suit properties though purchased in the name of the three sons of Alagesan are all joint family properties and as such, as the son of the first defendant, the plaintiff is entitled to 1/6th share in the suit properties by birth.
2. The suit was resisted by the defendants contending that the suit properties are not ancestral properties nor they were at any time blended with such ancestral properties. It was their further contention that the suit properties were purchased by the sons of Alagesan out of their own income and there was no income yielding joint family property that was available to have formed the nucleus for purchase of the suit property by the sons of Alagesan in their names.
3. At trial, the plaintiff's next friend Premalatha was examined as P.W.1 and Exhibits A1 to A15 were marked. On the side of the defendants, the defendants 1 to 3 were examined as D.Ws.1 to 3 and one Prakash was examined as D.W.4. A Will said to have been executed by Alagesan on 19.12.2001 that was projected by the defendants was marked as Ex.B1.
4. The learned Trial Judge upon a consideration of the evidence concluded that all the properties are joint family properties and as such, the plaintiff would be entitled to 5/32 share in the suit properties. Aggrieved the defendants preferred an appeal in AS No.30 of 2011.
5. The lower Appellate Court upon a reconsideration of the evidence concluded that the claim of the plaintiff regarding the character of the properties has not been established. The lower Appellate Court found that the properties that were purchased by the sons of Alagesan in their names belonged to them absolutely and the plaintiff who is the son of one of the sons of Alagesan, viz. the first defendant cannot claim any right by birth over those properties. The Lower Appellate Court, however, concluded that the third item of the suit properties could be characterised as ancestral property, since it was allotted to Alagesan at a partition that took place on 02.04.1964 between Alagesan, his father and his brother. Since the property had been partitioned between the father and sons, the Lower Appellate Court concluded that the said property could be characterised as ancestral property and therefore, the plaintiff would be entitled to a share only in the said property. The quantum of share was fixed by 5/32. The Will projected by the defendants was disbelieved on the ground that the testator had not made any provision for his wife in the said Will. Aggrieved the defendants have come up with this Second Appeal. The plaintiffs did not challenge the judgment of the Appellate Court.
6. The following questions of law were framed at the time of admission:
a) Whether the suit item 3 allotted to Alagesan in Ex.A5 Partition is not separate property in his hands?
b) Is not the assumption of the Courts below that suit item 3 is a joint family property contrary to law?
c) Whether the un-controverted evidence of DW4 Attestor does not establish Ex.B1 Will?
7. I have heard Mr. T.M.Hariharan, learned counsel appearing for the appellants. The respondents though served are not appearing either in person or through counsel duly instructed.
8. Mr.T.M.Hariharan, learned counsel appearing for the appellants would contend that the recitals of Ex.A5 dated 02.04.1964, which show that the property was the self-acquired property of Alagesan’s father, which is divided in 1964 between the sons of Alagesan after the coming into force of the Hindu Succession Act, 1956, and therefore the property allotted to the sons will not part take the character of ancestral property in order to enable the descendants to claim a right by birth. The recitals in the partition deed Ex.A5 dated 02.04.1964 would assume importance in answering the first question of law. The recitals read as follows:
“TAMIL”
9. Pointing out the above recitals Mr.T.M.Hariharan, would submit that the property has been described as the self-acquired property of Alagesan’s father namely, Perumal Gounder. If the property is the self- acquired property of Alagesan’s father and it has been allotted to Alagesan in the partition that took place after 1956, the same would not part take the character of ancestral property in the hands of Alagesan. If the property cannot be termed as ancestral property in the hands of Alagesan, his sons or grandsons will not get a right by birth.
10. I have considered the submissions of the learned counsel appearing for the appellants.
11. A reading of the recitals in the Partition Deed Ex.A5 dated 02.04.1964, very clearly show that the property was Perumal Gounder's self- acquisition which was divided among the sons of Perumal Gounder in the year 1964. Therefore, the character of the property that vested in the sons would be their self-acquisition and not ancestral, as concluded by the Lower Appellate Court. The Lower Appellate Court has just gone by the description in the document gpJuh$%j;kha[k; which cannot always mean that the property is ancestral property in which the sons or grandsons acquired a right by birth. In order to be classified as ancestral property in which the descendants acquire a right by birth, it should be shown that it devolved by succession for more than three generations. In the absence of such devolution, though, the property has been inherited from the ancestors it cannot be characterised as ancestral property in which the sons or grandsons would get a right by birth. In view of the same, the questions of law (a) and (b) are answered in favour of the appellants.
12. In the light of the above answers in questions of law (a) and (b), the Appeal is allowed. The judgment and decree of the Lower Appellate Court are set aside and the suit in OS No.268 of 2005 will stand dismissed. Since the suit itself is dismissed, the genuineness or otherwise of Ex.B1Will is not taken up for consideration in the Appeal. There will be no order as to costs. Consequently, the connected miscellaneous petition is closed.
1. The defendants 2 to 6 in OS No.268 of 2005 are the appellants. The said suit was laid by the first respondent claiming 1/6 th share in the suit properties. According to the first respondent, the suit properties though purchased in the name of the three sons of Alagesan are all joint family properties and as such, as the son of the first defendant, the plaintiff is entitled to 1/6th share in the suit properties by birth.
2. The suit was resisted by the defendants contending that the suit properties are not ancestral properties nor they were at any time blended with such ancestral properties. It was their further contention that the suit properties were purchased by the sons of Alagesan out of their own income and there was no income yielding joint family property that was available to have formed the nucleus for purchase of the suit property by the sons of Alagesan in their names.
3. At trial, the plaintiff's next friend Premalatha was examined as P.W.1 and Exhibits A1 to A15 were marked. On the side of the defendants, the defendants 1 to 3 were examined as D.Ws.1 to 3 and one Prakash was examined as D.W.4. A Will said to have been executed by Alagesan on 19.12.2001 that was projected by the defendants was marked as Ex.B1.
4. The learned Trial Judge upon a consideration of the evidence concluded that all the properties are joint family properties and as such, the plaintiff would be entitled to 5/32 share in the suit properties. Aggrieved the defendants preferred an appeal in AS No.30 of 2011.
5. The lower Appellate Court upon a reconsideration of the evidence concluded that the claim of the plaintiff regarding the character of the properties has not been established. The lower Appellate Court found that the properties that were purchased by the sons of Alagesan in their names belonged to them absolutely and the plaintiff who is the son of one of the sons of Alagesan, viz. the first defendant cannot claim any right by birth over those properties. The Lower Appellate Court, however, concluded that the third item of the suit properties could be characterised as ancestral property, since it was allotted to Alagesan at a partition that took place on 02.04.1964 between Alagesan, his father and his brother. Since the property had been partitioned between the father and sons, the Lower Appellate Court concluded that the said property could be characterised as ancestral property and therefore, the plaintiff would be entitled to a share only in the said property. The quantum of share was fixed by 5/32. The Will projected by the defendants was disbelieved on the ground that the testator had not made any provision for his wife in the said Will. Aggrieved the defendants have come up with this Second Appeal. The plaintiffs did not challenge the judgment of the Appellate Court.
6. The following questions of law were framed at the time of admission:
a) Whether the suit item 3 allotted to Alagesan in Ex.A5 Partition is not separate property in his hands?
b) Is not the assumption of the Courts below that suit item 3 is a joint family property contrary to law?
c) Whether the un-controverted evidence of DW4 Attestor does not establish Ex.B1 Will?
7. I have heard Mr. T.M.Hariharan, learned counsel appearing for the appellants. The respondents though served are not appearing either in person or through counsel duly instructed.
8. Mr.T.M.Hariharan, learned counsel appearing for the appellants would contend that the recitals of Ex.A5 dated 02.04.1964, which show that the property was the self-acquired property of Alagesan’s father, which is divided in 1964 between the sons of Alagesan after the coming into force of the Hindu Succession Act, 1956, and therefore the property allotted to the sons will not part take the character of ancestral property in order to enable the descendants to claim a right by birth. The recitals in the partition deed Ex.A5 dated 02.04.1964 would assume importance in answering the first question of law. The recitals read as follows:
“TAMIL”
9. Pointing out the above recitals Mr.T.M.Hariharan, would submit that the property has been described as the self-acquired property of Alagesan’s father namely, Perumal Gounder. If the property is the self- acquired property of Alagesan’s father and it has been allotted to Alagesan in the partition that took place after 1956, the same would not part take the character of ancestral property in the hands of Alagesan. If the property cannot be termed as ancestral property in the hands of Alagesan, his sons or grandsons will not get a right by birth.
10. I have considered the submissions of the learned counsel appearing for the appellants.
11. A reading of the recitals in the Partition Deed Ex.A5 dated 02.04.1964, very clearly show that the property was Perumal Gounder's self- acquisition which was divided among the sons of Perumal Gounder in the year 1964. Therefore, the character of the property that vested in the sons would be their self-acquisition and not ancestral, as concluded by the Lower Appellate Court. The Lower Appellate Court has just gone by the description in the document gpJuh$%j;kha[k; which cannot always mean that the property is ancestral property in which the sons or grandsons acquired a right by birth. In order to be classified as ancestral property in which the descendants acquire a right by birth, it should be shown that it devolved by succession for more than three generations. In the absence of such devolution, though, the property has been inherited from the ancestors it cannot be characterised as ancestral property in which the sons or grandsons would get a right by birth. In view of the same, the questions of law (a) and (b) are answered in favour of the appellants.
12. In the light of the above answers in questions of law (a) and (b), the Appeal is allowed. The judgment and decree of the Lower Appellate Court are set aside and the suit in OS No.268 of 2005 will stand dismissed. Since the suit itself is dismissed, the genuineness or otherwise of Ex.B1Will is not taken up for consideration in the Appeal. There will be no order as to costs. Consequently, the connected miscellaneous petition is closed.
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