This appeal suit has been filed by the 1st, 2nd, 3rd and 9th Defendants in OS.No.33 of 2005, challenging the judgement and decree dated 16.12.2009 passed by the I Additional District Judge, Tirunelveli.
2. The above suit had been filed by the 1st Respondent herein, namely, Vallimayil, wife of Murugan, seeking partition and separate possession of her 1/6th share in the suit property and for costs. In the Schedule to the plaint, nine items of properties have been given. The item (1) of the suit properties is 99 cents of land in TS.No.544/1, TS Block No.7, TS Ward No.4, in Kulavanigarpuram Village, Melapalayam Sub District, Palayamkottai. The item (2) of the suit properties is 10 cents in TS.No.544/1, TS Block No.7, TS Ward No.4, in Kulavanigarpuram Village, Melapalayam Sub District, Palayamkottai. The item (3) of the suit properties is 0.32.00 hectares in S.No.149/1B, 0.14.00 hectares in S.No.393/2 and 0.10.5 hectares in S.No.393/4 in Keezhaveeraghavapuram Village, Melapalayam, Palayamkottai. The item (4) of the suit properties is the land and building at Door Nos.3 and 5, 2nd Street, Ashoka Veedhi, Keezhaveeraghavapuram Village, Melapalayam Sub District, Palayamkottai. The item (5) of the suit property is the land, measuring 23 cents in S.No.283-30, 21 cents in S.No.283-26, Kulavanigarpuram Village, Melapalayam Sub District, Palayamkottai. The item (6) of the suit properties is the land in Block TS.No.690, Ward No.9, TS.No.4, Melapalayam Sub District, Palayamkottai, Keezhaveeraghavapuram Village. The item (7) of the suit properties is 2 and + cents of land with palm trees in TS.No.540-27, Ward No.7, TS.No.4, Melapalayam, Kulavanigarpuram Village, Palayamkottai. The item (8) of the suit properties is the land in TS.No.1014, Ward No.13, TS.No.4, Melapalayam Municipality, Ashoka Veedhi, Palayamkottai. The item (9) of the suit properties is 45 cents in S.No.563/14, Kulavanigarpuram Village, Palayamkottai. The Plaintiff claimed 1/6th share in each of the suit properties. By the judgement and decree dated 16.12.2009, the Trial Court granted 1/6th share in each of the suit properties.
3. It had been stated by the Plaintiff that the suit properties originally belonged to the grand father of herself and the 2nd and 3rd Defendants. It had been stated that the original owner was Ganapathy Thevar. His wife Vallimayil predeceased him. There were two sons, by name, Durairaj @ Vishnu and Ramaiah Thevar and a daughter Seethaiammal, the 1st defendant. Ramaiah Thevar is the father of the Plaintiff and the 2nd and 3rd Defendants. Ganapathy Thevar died intestate in 1971. After his death, his two sons, namely, Durairaj @ Vishnu and Ramaiah Thevar, were in joint possession and enjoyment of the suit properties. The first son Durairaj @ Vishnu died as a bachelor in 1991. His legal heirs were his brother Ramaiah Thevar and Sister Seethaiammal. Ramaiah Thevar died intestate in 1992. His wife predeceased him and had died in 1984. Subsequent to his death, the suit properties were in joint possession of the Plaintiff and the 1st, 2nd and 3rd Defendants.
4. It had been stated by the Plaintiff that the 1st Defendant Seethaiammal was entitled to an undivided one half share and the Plaintiff and the 2nd and 3rd Defendants were entitled to the other undivided one half share and hence they were each entitled to an undivided 1/6th share. It had been stated that the Defendants conspired to sell the properties and sold the properties to the 4th to 8th Defendants, suppressing the share and right of the Plaintiff. After the sale, the Plaintiff gave a petition to the Revenue Divisional Officer, Tirunelveli to include her name in the joint patta and after enquiry, by order dated 21.10.2004, her name was included. The Defendants denied the Plaintiff her share of the property. The 9th Defendant was also a purchaser. The Plaintiff had filed the suit, seeking undivied 1/6th share in the suit properties and for separate possession.
5. The 1st, 2nd and 3rd Defendants filed a written statement, stating that the Plaintiff was not entitled to any share in the suit properties. It had been stated that the Plaintiff and the 2nd and 3rd Defendants were sister and brothers. It had been denied that their father Ramaiah Thevar died in 1992. It was stated that he died in 1968. It was also stated that the statement that the mother of the Plaintiff predeceased him was also false. It had been stated that originally the suit properties were the joint family properties of Ramaiah Thevar, Durairaj @ Vishnu and their father Ganapathy Thevar. Ramaiah Thevar died first. Thereafter, the wife of Ganapathy Thevar Vallimayil died. Thereafter, her husband Ganapathy Thevar died. Thereafter, the mother of the plaintiff, the 2nd and 3rd Defendants, Vallimayil died. After that, Durairaj @ Vishnu died as a bachelor.
6. It had been further stated in the written statement that the grand father of the 2nd and 3rd Defendants was Muthu Thevar. It had been stated that his mother Madathi Ammal had given as gift the property at Door No.5, New No.16, on 20.1.1934. It had been further stated that the property at Door No.3, New Door No.10 had been purchased by a sale deed dated 30.3.1960 by the father of the 2nd and 3rd Defendants. It had been further stated that out of the suit properties, the items (1) and (2) and (3) had been purchased by Ganapathy Thevar in 1951, 1936, 1937 and 1967. His legal heirs were entitled to a share in the properties. It had been stated that since Durairaj @ Vishnu died as a bachelor, his share reverted back to his sister, the 1st Defendant. It had been stated that the Plaintiff had no share in the said properties. It had been stated that the 1st, 2nd and 3rd Defendants and the daughter of the 1st Defendant Sundari sold 11 cents in S.No.544/1C to V.Ponniah on 25.7.2005. They had also given a registered Power of Attorney to R.Krishnan and entered into a registered sale agreement with C.Sivasubramaniam. It had been stated that 40 cents out of 88 cents in S.No.544/1A, had been sold to the 4th to 8th Defendants on 16.7.2003. It had also been stated that other Defendants had given a Power of Attorney to the 2nd Defendant, who sold the balance 48 cents to the 4th to 8th Defendants by sale deeds dated 19.3.2004 and 13.9.2004. It had been stated that the purchasers are in possession. It had been stated that the court fee should have been paid on the market value. It had been further stated that the suit should be dismissed.
7. The 4th to 8th Defendants filed a separate written statement, stating that they are only concerned with item (1) of the suit properties. It had been stated that they had purchased 88 cents out of the above said property from the 1st, 2nd and 3rd Defendants. 11 cents was not sold since it was the share of the Plaintiff. It had been stated that these Defendants had spent huge sums of money towards development of the property purchased by them. It had been stated that the Plaintiff demanded 16.5 cents as her share and an agreement of sale was entered into on 13.9.2004. They also claimed that Rs.10 lakhs, had been given by a demand draft, to the Plaintiff and the Plaintiff withdrew her protest petitions before the revenue authorities. These Defendants had given a complaint against the Plaintiff for not executing the sale deed pursuant to the sale agreement and after receiving Rs.10 lakhs by demand draft. They also claimed that Ramaiah Thevar died 30 years back in and around 1975. They claimed that the suit for partition has been filed with ulterior motive to defeat their rights. The claimed that the suit should be dismissed in so far as the item (1) of the suit properties is concerned.
8. The 9th Defendant has also filed a separate written statement, stating that he had purchased the properties from the 1st, 2nd and 3rd Defendants and claimed that the suit should be dismissed.
9. The 3rd Defendant filed an additional written statement, claiming that the item (6) of the suit properties belonged to Muthu Thevar and the item (7) of the suit properties also belonged to Muthu Thevar and the item (8) of the suit property had actually been encroached upon and that item (9) of the suit property was not the property of family of Muthu Thevar. It had been stated that the suit should be dismissed with respect to items (5) to (9) of suit properties.
10. On consideration of the pleadings, the court below had framed the following issues and additional issues for trial:-
1.Whether the Plaintiff has got any share in the properties, if so what his her share?
2.Whether the Plaintiff is in joint possession of the suit properties?
3.Whether the court fee paid under Section 37(2) of the Court Fees Act is correct?
4.Whether the sale deeds and the sale agreement executed in favour of the 4th to 7th Defendants as alleged in the written statement are true and binding on the Plaintiff?
5.Whether the Plaintiff is entitled for the relief of partition as alleged in the plaint and for separate possession?
Additional Issues:-
1.Whether the purchase of northern side of 11 cents in S.No.544/1C on 25.7.2005 by the 9th Defendant is true and valid one?
2.Whether the 1st, 2nd and 3rd Defendants have right over the property to execute the sale deed in favour of the 9th Defendant on 25.7.2005?
3. After the sale of 88 cents to the 4th to 8th Defendants by the 1st, 2nd and 3rd Defendants, whether the 1st, 2nd and 3rd Defendants have right sell one portion of the same property to the 9th Defendant on 25.7.2005?
11. During the trial, the Plaintiff examined herself as PW.1. On behalf of the 4th to 8th Defendants, Sarif Ali was examined as DW.1. On behalf of the 1st,. 2nd, 3rd and 9th Defendants, the 3rd Defendant, Ganesan and an independent person Arumugam were examined as DW.2 and DW.3. The Plaintiff marked Ex.A1 to Ex.A3. These included the order of the Revenue Divisional Officer, Tirunelveli dated 21.10.2004 as Ex.A1, patta no.1108 issued by the Tahsildar, Palayamkottai, dated 4.6.2004 as Ex.A2 and a copy of the counter filed by the Respondent in the proceedings before the Revenue Divisional Officer, Tirunelveli dated 21.9.2004 as Ex.A3. On behalf of the 4th to 8th Defendants, Ex.B1 to Ex.B14 were marked. Ex.B1 is the agreement of sale entered into between the Plaintiff and the 4th Defendant dated 13.9.2004. Ex.B2 is the sale deed executed by the 1st, 2nd and 3rd Defendants and their children to the 4th to 8th Defendants dated 16.7.2003. Ex.B4 is another sale deed in favour of the 4th to 7th Defendants dated 16.7.2003. Ex.B5 is the another sale deed dated 16.7.2003 in favour of the 4th to 7th Defendants. The general Power of Attorney to the 2nd Defendant dated 16.7.2003 is Ex.B6. The agreement of sale with 6th Defendant dated 15.11.2003 is Ex.B7. The sale deeds in favour of the 4th to 8th Defendants dated 19.3.2004 are Ex.B8, Ex.B9 and Ex.B10 and the sale deed dated 13.9.2004 is Ex.B11. The survey plan and extract of town survey register are Ex.B12 and Ex.B14. On behalf of the 1st, 2nd, 3rd and 9th Defendants, birth of certificate of Vallimayil was marked as Ex.B2 and the marriage invitation of the Plaintiff was marked as Ex.B15. The receipts for purchase of jewellery were marked as Ex.B16 and Ex.B17. The death certificates of Ramaiah Thevar and Ganapathy Thevar and Durairaj @ Vishnu were marked as Ex.B18, Ex.B19 and Ex.B20. The order of the Principal Judge, Tirunelveli in OP.No.101/1975 dated 15.9.1975 was marked as Ex.B21. The notice from the Defendants dated 25.8.1975 was marked as Ex.B22 and the marriage invitation of the 2nd Defendant was marked as Ex.B23. The plan and the report of the Advocate Commissioner were marked as Ex.C1 and Ex.C2. On consideration of the oral and documentary evidence, the Trial Court granted a preliminary decree in favour of the Plaintiff for 1/6th share in the suit properties and also directed the 1st, 2nd and 3rd Defendants and the 9th Defendant to pay costs of the proceedings to the Plaintiff.
12. This appeal has been filed by the 1st, 2nd, 3rd and 9th Defendants. They have primarily challenged the finding that the 1st to 3rd Appellants had no right to convey 11 cents of land in S.No.544/1C in favour of the 4th Appellant and that the sale deed dated 27.5.2005 is not valid. The Appellants have also claimed that the issues (2) and (3), namely, whether the 1st Respondent is in joint possession and whether the court fee paid under Section 37(2) of the Act is correct should have been answered against her. It had been further stated by the Appellants that the 1st Respondent is entitled to only 1/27th share in the suit properties. It had been further stated that the father of the 2nd and 3rd Appellants and the 1st Respondent, namely, Ramaiah Thevar, died in 1968 and not in 1992. It had been stated that the items (5) and (9) are ancestral properties and not exclusive properties of Ganapathy Thevar.
13. The Appellants have also filed CMP(MD)No.4034 of 2017 under Order 41 Rule 27 of CPC, seeking permission to produce transfer certificate of the 2nd Appellant, Muthiah and the death extract of M.Subbiah Thevar as two additional documents and evidence in the appeal. The first document, namely, the transfer certificate of the 2nd Appellant, who had studied in the St.John Higher Secondary School, relates to his passing out 10th Standard. He had studied in the said school between 1969 and 1974. The second document is the death certificate of M.Subbiah Thevar, who died on 7.4.1992.
14. The Appellants are the 1st, 2nd, 3rd and 9th Defendants in the suit. The 1st Respondent in the appeal, namely, Vallimayil had filed the suit, seeking partition and separate possession of 1/6th share in the suit properties. She claimed 1/6th share in the following manner. According to her, she and the 2nd and 3rd Appellants, namely, Muthiah and Ganesan were sister and brothers. Their father was Ramaiah Thevar. The 1st Appellant Seethaiammal is the sister of Ramaiah Thevar. In the plaint, it had been stated that the properties mentioned in the plaint had originally devolved on to Ramaiah Thevar, his brother Durairaj @ Vishnu and the 1st Appellant Seethaiammal his sister. The properties devolved on them from their father Ganapathy Thevar. Ganapathy Thevar died intestate in the year 1971. His only legal heirs surviving him were Durairaj @ Vishnu, Ramaiah Thevar and Seethaiammal, 1st Appellant. They were each entitled to an undivied 1/3rd share in the suit properties. Durairaj @ Vishnu died as a bachelor. Consequently, his 1/3rd share reverted back to his brother and sister, namely, Ramaiah Thevar and Seethaiammal, 1st Appellant. In the plaint, it had been stated that Seethaiammal was entitled to an undivided one half share in the suit properties. The other one half share devolved on to Ramaiah Thevar. He died in 1992 intestate. His one half share further devolved on to the 2nd and 3rd Appellants and the 1st Respondent. The wife of Ramaiah Thevar had predeceased him. Consequently, the 2nd and 3rd Appellants and the 1st Respondent in the appeal were each entitled to an equal 1/3rd share in the undivided one half share of their father Ramaiah Thevar. It is only in such circumstances that the 1st Respondent Vallimayil had instituted the suit, seeking partition and separate possession of an undivided 1/6th share in the suit properties. The 1st Respondent, Vallimayil claimed that the 1st Appellant, Seethaiammal, who was the 1st Defendant in the suit, was entitled to undivided one half share and the 2nd Appellant, Muthiah, who was the 2nd Defendant in the suit, was entitled to an undivided 1/6th share and the 3rd Appellant Ganesan, who was the 3rd Defendant in the suit, was entitled to another undivided 1/6th share.
15. The above has been disputed by the Appellants herein in their written statement. According to them, the properties originally devolved from Muthiah Thevar and then to his son Ganapathy Thevar and then finally to Ramaiah Thevar. Consequently, they claimed that the properties in the hands of Ramaiah Thevar were ancestral properties. Since they were ancestral properties, it has been further claimed that the coparceners were the father Ramaiah Thevar and his two sons, namely, Muthiah and Ganesan, who are the 2nd and 3rd Appellants. They further claimed that the 1st Respondent Vallimayil as the daughter in the family was not entitled to any share in the ancestral properties. Consequently, they disputed the claim of the 1st Respondent in her plaint that she was entitled to 1/6th undivided share.
16. This claim of the Appellants that the properties were ancestral in nature had necessarily to be proved and established by them during the trial. The burden was on them to prove that the properties were ancestral. According to them, Ramaiah Thevar died in 1968. On the other hand, it is the case of the 1st Respondent in her plaint that Ramaiah Thevar died in 1992. Consequently, the burden was heavily upon the Appellants to prove that Ramaiah Thevar had actually died in 1968 which was a new fact pleaded by them and also that the properties were ancestral in nature. To establish the first fact that the Ramaiah Thevar died in year 1968, the Appellants had relied on Ex.B15, which is the marriage invitation of the Plaintiff, 1st Respondent and Ex.B18 which is the death certificate of Ramaiah Thevar. Ex.B18 is not an certificate which had been issued in the normal course by the Municipal Authorities. On the other hand, it has been admitted by the witness, who appeared on behalf of the Appellants, namely, the 3rd Appellant Ganesan, who was examined as DW.2, that after filing their written statement, he had filed a petition giving the year of death of his father as 1968, before the Judicial Magistrate Court V, Tirunelveli and on directions of the said Magistrate, Ex.B18 had been issued fixing the date of death as 24.04.1968. DW.2 in his cross examination had admitted that while filing the said petition, he had not impleaded as a Respondent his own sister, the 1st Respondent, who was the Plaintiff to the suit. In his cross examination, he had stated as follows:-
?...ehd; vq;fsJ vjpUiuia 19.09.2005 md;W jhf;fy; nra;Js;Nsd;. vjpUiu jahh; nra;a tpguq;fis ehd;jhd; tof;fwpQUf;F nrhd;Ndd;. gp.rh.M.18y; vd; je;ijapd; ,wg;G khefuhl;rpapy; 29.12.2005 md;Wjhd; gjpT nra;ag;gl;Ls;sjhf Fwpg;gplg;gl;Ls;sJ vd;why; rhpjhd;. vd; je;ijapd; ,wg;ig gjpT nra;a ePjpj;Jiw eLth; vz;.5-y; ehd; 24.11.2005 md;W kD jhf;fy; nra;Njd;. me;j kDtpy; vd; xNu rNfhjhpahd thjpia jug;gpduhf;ftpy;iy. ePjpj;Jiw eLthplk; jhf;fy; nra;j kDtpy; ,e;j tof;fpd; thjp vd; je;ij ,we;jjhf Fwpg;gplg;gl;bUf;Fk; Njjp gw;wp vJTk; nry;ytpy;iy vd;why; rhpjhd;. gp.rh.M.18 Fwpg;gpl;l tpguk; ngha; vd;Wk; mJ ,t;tof;fpw;fhf ngha;ahd jfty; mbg;gilapy; ePjpkd;w cj;juT ngw;W gjpT nra;jjhFk; vd;W nrhd;dhy; rhpay;y .....? ?
This clearly shows that the said death certificate giving the date of death of Ramaiah Thevar as 24.04.1968 had been created for the purpose of the case. The Trial Court rejected the said document. I also reject the said document. The order of the Judicial Magistrate is not binding at all. It has been passed only on the self-serving statement made by DW.2. In fact, the Trial Court used the words that it had been produced by ?deceitful means?. This practice adopted to obtain Birth/Death certificates has been deprecated by the Division Bench of this Court in P.Duraisamy Vs. The State of Tamil Nadu (2017 (3) CTC 23), and Magistrates have been specifically prohibited from entertaining any petition of such nature. Consequently, Ex.B18 has no legal credibility at all.
17. The other document which is relied on is the marriage invitation of the 1st Respondent, which was marked as Ex.B15. Again, this marriage invitation has to be rejected because in the absence of oral evidence surrounding the invitation, there is a clear suspicion that it has been prepared only for the purpose of the suit. DW.2 had been instrumental in creating the death certificate of his own father. I am not able to convince myself to attach any credibility to Ex.B15. Consequently, both the documents are rejected by me. This leads to the only fact that Ramaiah Thevar died in the year 1992. It is in this circumstance that CMP(MD)No.4034 of 2017 will have to be considered.
18. The Appellants herein have produced a school transfer certificate and a death certificate. Again, I am not inclined to take on record both the records since under Order 41 Rule 27 of CPC, the Appellants will have to first satisfy by cogent reasons as to why they did not produce the said documents during the trial. The documents cannot be admitted merely to fill up lacunae. The school was in Tirunelveli and the transfer certificate could very well be obtained during the trial. A perusal of the documents shows that what is now produced is a duplicate copy and had been issued subsequent to the filing of the appeal. I am not inclined to take on record the said school transfer certificate. Even the death certificate which has been produced will be of no help to the Appellants since the same has also been issued after filing of the appeal. I reject both the documents and consequently, CMP(MD)No.4034 of 2017 is to be dismissed.
19. It is now to be established whether the properties are ancestral properties or self-acquired properties in the hands of Ramaiah Thevar. In this connection, DW.2 in his cross examination had admitted as follows:-
?' .......jgrpy; 5 Kjy; 9tJ ,yf;fr; nrhj;Jf;fs; Mjpapy; vd; nfhs;Sj;jhj;jh Kj;Jj;NjtUf;F ghj;jpag;gl;lJvd;gijf; fhl;l Mtzq;fis vijAk; jhf;fy; nra;atpy;iy vd;W nrhd;dhy; rhpjhd;. \ Kj;Jj;Njthpd; kfd;fshd FUehj; Njth;> fzgjp Njth; kw;Wk; Rg;igah Njth; MfpNahh; nrhj;Jf;fis ghfk; nra;ahky; $l;lhf mDgtk; nra;J te;jhh;fs; vd;Wk;> ehsJ Njjp tiu $l;lDgtj;jpNyNa ,Uf;fpwJ vd;gjw;Fk; Mtzq;fs; vijAk; jhf;fy; nra;atpy;iy vd;W nrhd;dhy; rhpjhd;.
........? ?
It is therefore seen that the Appellants have not proved that the properties originally belonged to Muthu Thevar. The learned counsel for the Appellants also stated that some of the properties came to Ganapathy Thevar by way of a family partition. I hold that this argument cannot be countenanced since if a property devolved during partition, then it becomes the self-acquired property of the said individual. The learned counsel for the Appellants relied on Ex.B21 and stated that in the order passed by the Sub Court, Tirunelveli in OP.No.101 of 1975, dated 15.9.1975, the name of Ramaiah Thevar was not found. However, that cannot be a ground to infer that at that time Ramaiah Thevar was dead. I am unable to accept the arguments advanced by the learned counsel for the Appellants in this regard.
20. The learned counsel for the 2nd to 6th Respondents stated that there was a balance of 11 cents in the item (1) of the suit properties and this balance was retained since it was stated that that share fell to the 1st Respondent herein. However, the Appellants had sold that portion of 11 cents also to the 4th Appellant, V.Ponniah. The 1st Respondent appears to have entered into an agreement of sale to the 2nd to 6th Respondents with respect to 16.5. cents. It is her 1/6 share out of 99 cents in the item (1) of the suit properties. This agreement of sale had been marked as Ex.B1 and it is dated 13.9.2004. This protects the interest of the 2nd to 6th Respondents. It is seen that the sale by the 1st to 3rd Appellants to the 4th Appellant had not been proved in a manner known to law. The 4th Appellant has not grazed the witness box to express bonafide about his purchase. It is clear that the 4th Appellant is a speculative purchaser of property, the title of which is under challenge. Therefore, I hold that the claim of the 1st Respondent for partition and separate possession would not be defeated because of the said sale. It is also pertinent to point out that the 4th Appellant purchaser has not tendered evidence and has not come forward to be subjected for cross examination regarding the circumstances surrounding his purchase of the property.
21. It is also seen that DW.2 while justifying the sale of properties to the 2nd to 6th Respondents during his cross examination had actually admitted that the property was sold to them because it was the exclusive property of Ramaiah Thevar who had an undivided one half share and the other one half share was in the holding of Seethaiammal, 1st Appellant. The admission in the cross examination is as follows:- 'vq;fspy; 1> 2 egUf;F jfg;gdhiug; ngw;w jhj;jhTk; 3-tJ egUf;F jfg;gdhUk; 4> 5 egh;fSf;F jhahiug; ngw;w jhj;jhTkhd fzgjp Njth; mth;fs; 15.4.1951 Njjpapy; jd;Dila ngaUf;F Rahh;[pjkhf fpuak; vOjp thq;fpAk; \ Mtzk; ghis kh.g.mYtyfk; Gf; 1> 911> 270> 1242/1951 vz;zhfg; gjpthfpapUf;fpwgbAk; \ ahh; ngauhy; gl;lh vz;.892 Vw;gl;L \ ahNu jd;Dila Mas; fhyk; tiu rh;t Rje;jpukhfTk; ahnjhU tpy;yq;fKk; Vw;ghKk; nra;J itf;fhky; Mz;lDgtpj;J te;J fhyQ;nrd;w gpd;G \ ahhpd; Neh; thhpRfshd vq;fspy; 1> 2 egh;fsF;F jfg;gdhuhd uhikahj; Njth; -1 \ 1-tJ eghpd; rNfhjuh; tp\;Z vd;w Jiuuh[; Njth; -2 vq;fspd;; 3-tJ egh; rPijak;khs; ,th;fs; %d;W Ngh;fSk; thhpR fpukg;gb [hapz;lhf mile;J Mz;lDgtpj;J tUiapy; \ 2tJ eguhd tp\;Z vd;w Jiuuh[; Njth; mth;fs; jpUkzkhtjw;F Kd;Ng ,we;Jtpl;l epyikapy; \ 1tJ eguhd uhikahj; Njth; kw;Wk; 3tJ eguhd rPijmk;khs; mth;fs; thhpR fpukg;gb mile;J ehsJ Njjp tiu ahnjhU gphptpidAk; nra;ahky; Mz;lDgtpj;J tUifapy; \ fzgjp Njth; mth;fs; thhpRfshd ehq;fs; Ie;J Ngh;fSk; Nrh;e;J thhpR epyikapy;...............?
22. It is, therefore, seen that the Appellants are projecting mutually destructive stands. While denying the share of the 1st Respondent, they claim that the properties are ancestral. While justifying their sale to the 2nd to 6th Respondents, they state that they had a right to sell the properties because the properties are self-acquired properties in the hands of Ramaiah Thevar. The stand of the Appellants cannot be accepted and has to be rejected.
23. The learned counsel for the Appellants stated that on 29.1.2015, the 3rd Appellant Ganesan was murdered. According to him, he died as a bachelor. It had been stated that the son of the 1st Respondent had surrendered before the Melapalayam Police Station. He consequently stated that the 1st Respondent was disqualified from claiming any share in her father's property. It has to be mentioned that investigation has not been completed and charge sheet has also not been filed. Consequently, this court has to reject the averments in the affidavit informing this fact before the court.
24. For all the above circumstances, I hold that the 1st Respondent is entitled to an undivided 1/6th share in the suit properties on the ground that the properties originally belonged to Ganapathy Thevar, who had two sons and one daughter, namely Durairaj @ Vishnu, Ramaiah Thevar and Seethaiammal. On the death of Durairaj @ Vishnu as a bachelor, his entire 1/3rd share reverted back to Ramaiah Thevar and Seethaiammal, who both became entitled to an undivided one half share. The 1st Respondent as daughter of Ramaiah Thevar is entitled to an undivided 1/3rd share in the undivided one half share of her father. She is therefore entitled to an undivided 1/6th share in the suit properties. Consequently, I find no reason to differ from the findings of the Trial Court.
25. In the result, this appeal suit is dismissed with costs. The impugned judgement and decree dated 16.12.2009 made in OS.No.33 of 2005 on the file of the I Additional District Judge, Tirunelveli is confirmed. The CMP(MD)No.4034 of 2017 is also dismissed.
To:
1. The I Additional District Judge, Tirunelveli.
2.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
.