The defendants 1 to 3 in the suit are the appellants. The plaintiff in the original suit is the respondent herein. The suit was filed by the respondent herein for partition of the suit properties claiming that the plaintiff was entitled to 1/4th share in the suit properties and seeking partition of her share from the rest of the shares belonging to the appellants/defendants. The Trial Court, after trial decreed the suit and granted a preliminary decree for partition as prayed for in the plaint. Hence, the defendants have preferred the present appeal suit on various grounds set out in the memorandum of appeal.
2. The admitted facts leading to the filing of the present appeal can be summarized as follows:
i) The respondent/plaintiff is the mother of deceased Balasubramaniam. The first appellant (first defendant) and the appellants 2 and 3 (defendants 2 and 3) are respectively the widow, son and daughter of Balasubramaniam. The suit properties were the properties allotted to the said Balasubramaniam in a partition that took place under a registered deed dated 13.07.1969. The same was marked before the Trial Court as Ex.A.2. The respondent/plaintiff, deceased Balasubramaniam and the sisters of the deceased Balasubramaniam were the parties to the above said Partition. In the said Partition, the respondent/plaintiff was content with the allotment of a family fund kept in cash to the tune of Rs.5,000/- towards her share. Balasubramaniam and his two sisters were allotted shares in the immovable properties. Admittedly, the subject matter of the partition were the properties held by one Rengasamy Naicker, husband of the respondent/plaintiff. The properties held by Rangasamy Naicker consisted of properties allotted to him in a family partition and the properties purchased by him. The entire property left behind Rengasamy Naicker, were made the subject matter of the partition under the partition deed marked as Ex.A2 without making any distinction between the properties allotted to him in the family partition and the properties purchased by him. The suit properties came to be allotted to the share of Balasubramaniam, the son of Rengasamy Naicker.
ii) Claiming that the properties allotted to late Balasubramaniam under the said partition were his separate and absolute properties, the respondent herein/plaintiff, who is admittedly a class-I heir of Balasubramaniam, filed the suit claiming 1/4th share in the suit properties. According to the respondent's/plaintiff's contention, Balasubramaniam having died intestate, his properties shall devolve upon the appellants and the respondent equally, as his legal heirs. Thus the claim that she was entitled to one-fourth share in the suit property was made by the respondent/plaintiff.
iii) The claim of the respondent/plaintiff was resisted by the appellants/defendants with the contention that the properties of Balasubramaniam were not his absolute properties and on the other hand, they were the joint family properties of Balasubramaniam and the appellants 2 and 3 herein/defendants 2 and 3. According to their contention, by virtue of an amendment introduced to the Hindu Succession Act by Tamil Nadu Act 1 of 1990, the 3rd respondent also became a coparcener in respect of the ancestral properties of Balasubramaniam as she was not married on the date on which the Hindu Succession Act as amended by Tamil Nadu Act 1 of 1990 was brought into force and that hence, the interest held by Balasubramaniam in the suit properties as a coparcener was only 1/3rd share and the other 2/3rd belonged to the appellants 2 and 3 as coparceners. It was their further contention that, on the death of Balasubramaniam, in normal course, his 1/3rd share would have been devolved upon his legal heirs, each one of the appellants and respondent becoming entitled to 1/4th out of his 1/3rd share. However, the defendants had also taken a plea that even in respect of that 1/3rd share of Balasubramaniam, the respondent/plaintiff was not entitled to any share as his legal heir, since Balasubramaniam did not die intestate and he had left a will dated 07.06.1994, bequeathing all his properties in favour of the appellants herein, giving life estate to the first appellant and the vested remainder to the second appellant subject to an obligation to take the responsibility of getting the 3rd appellant suitably married. Based on the above said pleadings, the appellants/defendants had prayed for the dismissal of the suit in the entry stage. However, it had also been averred that if respondent/plaintiff was entitled to any share in the property, she would be entitled to 1/12th share in the suit properties.
iv) Based on the above said pleadings, the Trial Court framed the following issues:
1)Whether the plaintiff is entitled to the relief of partition as prayed for? If so at what ratio?
2)Whether the plaintiff is entitled to mesne profits?
3)Whether the Will allegedly executed by the deceased Balasubramaniam dated 07.06.1994 is true and valid?
4)Whether the court fee paid is correct?
5)To what relief plaintiff is entitled?
v) In the trial, respondent/plaintiff examined herself as the sole witness (P.W.1) and marked 10 documents as Exs. A.1 to A.10 on her side. The second appellant/second defendant was examined as the sole witness (D.W.1) and marked 6 documents as Exs.B.1 to B.6 on the side of the defendants. At the conclusion of trial, the Trial Court considered the pleadings and evidence in the light of the arguments advanced on either side and upon such consideration, came to the conclusion that the plaintiff had proved her case that she was entitled to 1/4th share in the suit properties. Based on the said finding, the Trial Court granted a preliminary decree directing division of the suit properties into four equal shares and allotment of one such share to the respondent herein/plaintiff.
3. The said judgment and preliminary decree dated 03.04.2002 passed by the learned Additional District Judge (Fast Track Court No.1), Coimbatore is challenged in this appeal on various grounds set out in the memorandum of appeal.
4. The points that arise for consideration in this appeal are as follows:
(1) Whether the properties held by the deceased Balasubramaniam were his absolute properties or joint family properties, in which he had only undivided interest as a coparcener?
(2) Whether the respondent/plaintiff, as a legal heir of Balasubramaniam, is entitled to 1/4th share in the suit properties?
(3) To what relief the parties are entitled?
5. The submissions made by Mr.A.Thiagarajan, learned counsel for the appellants and Mr.M.Venkatachalam, learned Senior counsel representing Mr.M.Sriram, learned counsel on record for the respondent were heard. The entire records were also perused.
6. It is the contention of the learned counsel for the appellants that the Trial Court committed an error in arriving at the conclusion that the suit properties were the absolute properties of deceased Balasubramaniam, which led to the ultimate mistake in granting the decree for partition of the properties as prayed for by the respondent/plaintiff in the suit. According to the submissions made by the learned counsel for the appellants, there are clear documentary evidence capable of ruling out any oral evidence in this regard and the Trial Court failed to appreciate the implications of the partition effected under Ex.A.2, after the death of Rengasamy Naicker. The learned counsel for the appellants also drew the attention of the Court by pointing out the value of the shares allotted to each one of the parties to the said partition deed, indicating the consensus arrived at by the parties to the deed that the properties were the joint family properties of the coparcenary consisting of Rengasamy Naicker and his son Balasubramaniam as coparceners.
7. It is the further contention of the learned counsel for the appellants that even otherwise, the properties which came into the hands of Balasubramaniam on the death of his father Rengasamy Naicker as his legal heir, cannot be construed to be self-acquired properties of Balasubramaniam and that hence, the Trial Court ought to have rejected the contention of the plaintiff that the suit properties were the self-acquisitions of Balasubramaniam. The learned counsel for the appellants also pointed out the fact that though the appellants/defendants have taken a plea to the effect that the interest held by Balasubramaniam in the coparcenary property at the time of his death could not be subjected to the rule of intestate succession as he had left a will bequeathing all his properties in favour of the appellants, they have chosen to give up such plea by not producing the said Will in proof of such contention.
8. It is the further contention of the learned counsel for the appellants that the appellants 2 and 3 were coparceners along with their father Late Balasubramaniam and that the respondent/plaintiff shall only a right to have a share in the undivided interest of the deceased Balasubramaniam as on the date of his death as one of his legal heirs and thus the respondent/plaintiff shall be entitled to 1/4th share of Balasubramaniam's one-third share, namely 1/12th in the entire suit property. The learned counsel concedes that the respondent/plaintiff can be granted a decree for partition of her one-twelfth share in the suit property.
9. Per contra, the learned Senior Counsel for the respondent would contend that not only the ancestral properties of Rengasamy Naicker but also the properties purchased by him were made the subject matter of Ex.A.2-Partition Deed and that therefore whatever share that was allotted to Balasubramaniam should be construed to be his absolute property and that hence the claim of the respondent/plaintiff should be sustained. The learned senior counsel for the respondent also submitted that since the daughters and wife of Rengasamy were also allotted shares under the said partition deed, the properties allotted to Balasubramaniam should be construed to be his absolute property. It is his further contention that, in view of the same, the respondent/plaintiff is absolutely justified in claiming 1/4th share in the entire suit properties as one of the legal heirs of Balasubramaniam.
10. Taking note of the nature of pleadings and the nature of issues involved in this case, this Court is of the considered view that the oral evidence adduced on both sides did not play a vital role and the case can be disposed of based on the documents, especially Ex.A.2- Partition Deed and the respective pleadings made by the parties. It is not in dispute that none of the properties which are the subject matter of the suit was purchased either by the plaintiff or by her son Balasubramaniam. Admittedly, all the properties remained the properties of Rengasamy Naicker before his death. Entire properties left behind Rengasamy Naicker were divided among his wife, son and daughters under Ex.A.2. Ex.A.2 itself contains necessary indication regarding the nature of interest held by Rengasamy Naicker.
11. The specific case of the appellants is that the properties held by the deceased Balasubramaniam were not his absolute properties, but were held by him as kartha of the joint family consisting of himself, his son and daughter as coparceners who have become entitled to a share in them by birth. On the other hand, the case of the respondent/plaintiff is that the properties were the absolute properties of her son late Balasubramaniam and hence she is entitled to an equal share in it along with each one of the appellants herein. What is the basis on which the respondent/plaintiff contends that the properties were the absolute properties of the deceased Balasubramaniam? has not been made clear. The evidence of P.W.1 in this regard is some what nebulous and evasive, besides giving room for confusion. At one stage, P.W.1 would say that the properties were purchased by herself and her son. But, it is an admitted fact that none of the suit properties was purchased either by the respondent/plaintiff or by her son late Balasubramaniam and that all the suit properties were the properties allotted to him in a partition effected under the original of Ex.A2 to which the respondent/plaintiff, the deceased Balasubramaniam and the daughters of the respondent/plaintiff were parties. In the said partition deed dated 13.07.1989, nothing has been mentioned about the antecedent title relating to those properties divided among them in clear terms. On the other hand, there is a recital in the said document to the effect that some of the properties came to the husband of the respondent/plaintiff, namely late Rengasamy Naicker under a partition deed and some of the properties were purchased by the said Rengasamy Naicker. Whether the purchases were made out of his separate funds or from the funds derived from the ancestral nucleus has not been spelt out in any of the documents produced by the parties to the present case.
12. Of course it is true that the respondent/plaintiff has produced Exs.A5, A6, A7 and A9 to show that properties were purchased by Rengasamy Naicker. But Ex.A10 shows that a property purchased by another person, namely Krishnasamy Naicker, the paternal uncle of Rengasamy Naicker was also made a subject matter of a partition between Rengasamy Naicker and Ranganathan, son of Krishnasamy Naicker in the year 1966 as evidenced by Ex.A8. In the said partition deed dated 25.07.1966 recital has been incorporated to the effect that properties belonging to Rengasamy Naicker by virtue of a sale deed dated 04.01.1945 and the properties belonging to Ranganathan son of Krishnasamy Naicker as self acquisition and ancestral properties, were divided under the said partition deed between Rengasamy Naicker and Ranganathan. It is also obvious from the documents that some of the properties purchased by Rengasamy Naicker had been sold by the said Rengasamy Naicker during his life time. Similarly, some of the ancestral properties were also sold by him during his life time as evidenced by Ex.B2-sale deed dated 29.05.1958. Ex.B3 dated 03.07.1937 evidences the fact that Gurusamy Naicker, the father of the Rengasamy Naicker had purchased a property in 1937 itself. The said document has been produced on the side of the defendants to show that there was ancestral properties in the hands of Rengasamy Naicker. Therefore, it is quite obvious that, though Rengasamy Naicker during his life time happened to purchase some of the properties in his name under Exs.A5 to A7 and A9, he was also having ancestral properties in his hands, out of which he was deriving income.
13. It is obvious from Ex.A8 that one of the properties purchased by Rengasamy Naicker and another property purchased by Krishnasamy Naicker, the paternal uncle of Rengasamy Naicker were made the subject matters of partition among Rengasamy Naicker and one Ranganathan, son of Krishnasamy Naicker. Krishnasamy Naicker had purchased the said property under Ex.A10. The same will give an indication that though separate purchases had been made, they were treated as family properties. The said view gets strengthened from the fact that all the properties left behind Rengasamy Naicker were divided under Ex.A2 among his son Balasubramaniam, the respondent/plaintiff (wife of Rengasamy Naicker) and the daughters of the respondent herein and that while effecting partition under Ex.A2, no distinction was made between the properties which were self-acquisitions of Rengasamy Naicker and which were the ancestral properties of Rengasamy Naicker. As rightly contended by the learned counsel for the appellants, the manner in which the division was made under Ex.A2 will lend help to ascertain the consensus of the parties regarding the nature of the properties which were divided under the said partition deed. The learned counsel pointed out the fact that the wife of the deceased Rengasamy Naicker were allotted only a cash of Rs.5,000/- and the two daughters of Rengasamy Naicker was allotted properties worth Rs.15,833/- and Rs.15,886/- respectively, whereas the son of Rengasamy Naicker, namely the deceased Balasubramaniam was allotted properties worth Rs.1,09,226/-. According to the submission made by the learned counsel for the appellants, the allotment of shares in the said partition will give a clear indication that the parties were of the view that the properties were the ancestral properties of Rengasamy Naicker in which his son late Balasubramaniam was entitled to half share by birth and that on the death of the other coparcener, namely Rengasamy Naicker, his half share by virtue of the proviso to Section 6 of the Hindu Succession Act, 1956 devolved upon all his legal heirs, namely late Balasubramaniam, the respondent herein and his two daughters, equally. Thus the respondent herein and each one of her daughters would be entitled to 1/8 share, whereas the deceased Balasubramaniam would be entitled to 5/8 share (1/2 as coparcener and 1/8 as legal heir of Rengasamy Naicker). Such an understanding, according to the learned counsel for the appellants, is reflected in the manner in which the properties were divided under Ex.A2. This court finds substance and force in the above said contention raised by the learned counsel for the appellants.
14. Apart from that, clear averments have been made on behalf of the appellants to the effect that the properties allotted to deceased Balasubramaniam under Ex.A2 were not his absolute properties and they were held by him in his capacity as the manager/kartha of the joint family consisting of himself, his son and daughter (appellants 2 and 3) as coparceners and that therefore, in the properties held by late Balasubramaniam, he was entitled to 1/3 share alone, whereas the other 2/3 share would go to the appellants 2 and 3 in their capacities as coparceners as son and unmarried daughter of the deceased Balasubramaniam. It is an admitted fact that the third appellant remained unmarried when the Tamil Nadu Amendment to Hindu Succession Act was brought into force. It is also not the case of the respondent/plaintiff that there was any partition effected to bring the joint family into disruption before the State Amendment was brought into force so as to deny the benefit of the amendment to the third appellant. As against the clear stand taken by the appellants that the suit properties were the joint family properties of deceased Balasubramaniam in which the appellants 2 and 3 had got equal share by birth, the evidence of the respondent/plaintiff is not uniform. During cross-examination, P.W.1 candidly admitted that the recitals found in Ex.A2 were correct and that the separate properties and ancestral properties of her husband were divided by her with her children under Ex.A2. It has also been admitted by her that the son was allotted a larger share whereas the daughters and she were allotted smaller shares. It is also her admission that in the properties earned by her husband, she, her son and her daughters were entitled to equal shares. But at the same time, she would also state that the said properties were divided in accordance with such shares, which is obviously erroneous one. In the light of Ex.A2, the said testimony of P.W.1 stands falsified. At the end of her testimony during cross-examination, the respondent as P.W.1, has also stated that she earned money and purchased the properties which is against the plaint pleadings and the documentary evidence produced on either side.
15. On the other hand, the plea taken by the appellants and the evidence adduced on their side were uniform throughout. In civil cases, issues are decided not on the basis of proof beyond reasonable doubt, but on broad probabilities. In this case, the plaintiff (respondent herein) who has come forward with the suit claiming 1/4 share in the suit properties based on her plea that the properties were the absolute properties of her son, has not adduced sufficient evidence in proof of the said plea to discharge the initial burden cast on her and to shift the burden on the defendants who pleaded otherwise. Admittedly, none of the properties held by the deceased Balasubramaniam was his self-acquisition. On the other hand, he got all those properties only under the partition deed dated 13.07.1989, a certified copy of which has been marked as Ex.A2. There are also admissions to the effect that the properties held by the father of late Balasubramaniam which were partitioned among his son, wife and daughters included not only his self-acquisitions but also his ancestral properties. It has also been indicated supra that the division made under Ex.A2 would indicate the consensus among the parties to the partition that the son Balasubramaniam was a coparcener along with his father and hence he was allotted a major share, whereas each one of the others was allotted a lesser share, which would be more or less equal to 1/4th of the 1/2 share referable to the father of Balasubramaniam (equivalent to 1/8th of the properties). In the evidence P.W.1 has also admitted that her husband did possess self-acquired as well as ancestral properties. The defendants have also produced documents to show that some of the ancestral properties were also sold by the father of Balasubramaniam. Therefore, the defendants' contention that the acquisitions by the father of Balasubramaniam were made from out of the income of the joint family nucleus and using the funds raised by selling some of the joint family ancestral properties becomes more probable.
16. For all the reasons stated above, this court comes to the conclusion that the trial court failed to appreciate the above said aspect in proper perspective and arrived at a wrong conclusion that the properties held by deceased Balasubramaniam were his absolute properties, in which each one of the appellants and the respondent would get 1/4 share on his death. The said decision arrived at by the trial court is found to be erroneous and the same deserves to be reversed. The evidence adduced in this case indicates the fact that the suit properties were the ancestral joint family properties of Balasubramaniam in which Balasubramaniam, the second appellant and the third appellant had got equal shares as coparceners and the 1/3 share of Balasubramaniam alone devolved upon all the parties to the suit as his legal heirs, on his death. Thus the respondent/plaintiff shall be entitled to 1/4 x 1/3 = 1/12 share alone. To the above said extent, the preliminary decree passed by the trial court has got to be modified.
17. In the result, the appeal is allowed and the preliminary decree dated 03.04.2002 passed by the trial court is modified by directing division of the suit properties into twelve equal shares and allotment of one such share to the respondent in the appeal/plaintiff. Subject to the above said modification, the decree of the trial court shall stand confirmed in all other respects. No cost. Consequently, the connected miscellaneous petition is also closed.
asr To The Additional Judge (Fast Track Court No.1), Coimbatore