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Judgment
P.R. Shivakumar, J.—The submissions made by M/s. F.X. Eugene, learned Counsel for the Appellants and M/s. S. Ramesh @Ramiah, learned Counsel for the first and second Respondents were heard. The judgments and decrees of the courts below and connected appeal papers produced in the form of typed-set of papers were perused.
The following are the admitted relationship of the parties. Seenithai, the mother of Respondents 1 and 2/Plaintiffs 1 and 2 was the first wife of the first Appellant/first Defendant (Chellaiya Thevar @ Chellapandian). The Respondents 1 and 2/Plaintiffs 1 and 2 are the daughters born to them. After the death of Seenithai, the first Appellant married the third Respondent/4th Defendant and through her marriage, he got Appellants 2 and 3/Defendants 2 and 3 as daughter and son.
The Defendants 1 to 3 in the original suit (O.S. No. 301 of 2009)for partition filed by the Respondents 1 and 2 herein as Plaintiffs have come forward with the present second appeal. The original suit O.S. No. 301 of 2004 was filed on the file of the learned Principal District Munsif, Sankarankovil against the Appellants herein and the fourth Respondent herein arraying them as Defendants 1 to 3 and fourth Defendant respectively. Two schedules of properties have been provided in the plaint. In respect of plaint first schedule, the contention of the Respondents 1 and 2/Plaintiffs happened to be that the same was the ancestral property of their father namely, the first Appellant herein and that the Respondents 1 and 2 herein, namely, the Plaintiffs got married subsequent to the introduction of Section 29-A by Tamil Nadu Amendment under Act 1 of 1990 to the Hindu Succession Act and hence, they became co-parceners in respect of the suit first schedule properties along with their father Chellaiya Thevar @ Chellapandian, who is the first Appellant herein/first Defendant. It is also their contention that the Appellants 2 and 3 have also become co-parceners along with the first Appellant.
The only difference of opinion between the parties in this regard is whether Respondents 1 and 2/Plaintiffs 1 and 2 got married prior to the introduction of Tamil Nadu Amendment or subsequent to the same. According to the Respondents 1 and 2/Plaintiffs, they got married only subsequent to the date on which Tamil Nadu amendment introducing Section 29-A to Hindu Succession Act in Tamil Nadu was brought into force. Though this was disputed by the Appellants, after considering the evidence adduced on both sides, the courts below arrived at a concurrent finding that the above said contentions of the Respondents 1 and 2/Plaintiffs 1 and 2 stood proved and that the said contention of the Appellants/Defendants 1 to 3 that they got married even prior to 1989 was not substantiated. The said concurrent finding of facts does not warrant any interference in the second appeal, that too, when it is not shown to be perverse.
Admittedly, except the interested testimonies of the first Appellant/first Defendant and the third Respondent/4th Defendant, who is none other than the mother of Appellants 2 and 3, no other reliable evidence was adduced on the side of the Defendants to prove their contention that the marriage of Respondents 1 and 2/Plaintiffs took place prior to 1989. Of course, the position of the evidence adduced on the side of the Plaintiffs is on the same footing since no documentary evidence was adduced on their side to prove that their marriage took place on particular dates. However, the Defendants being none other than the father, half sister half brother and step-mother of the Plaintiffs are in a better position to produce documents to show the date of marriage of the Plaintiffs. Such persons who are place in a better position have not produced such documents. Instead of producing such documents which shall clinch the issue, the Defendants were choosy in their selection of evidence by producing a birth certificate of the daughter of the first Respondent herein/first Plaintiff as Ex.B5 to show that the said child was born on 07.01.1990. The said document was produced perhaps to show that at least 10 months prior to the date of birth of the said child the marriage of the first Respondent/first Plaintiff ought to have taken place. If such a calculation is made, it will take as to 07.03.1989 and an attempt was made to show that the marriage ought to have taken place prior to 07.03.1989 whereas the amendment introducing Section 29-A came to force w.e.f. 25.03.1989. But the said attempt cannot be said to be successful because, there is no wonder in a child being born to a person within 10 months from the date of marriage.
Even the actual gestation period is not full 10 months and it shall be around 9 months. Some times, even before the completion of 9 months, a child may be born. Therefore, Ex.B5 cannot be taken as a proof to show that the marriage of the first Respondent/first Plaintiff took place prior to 25.03.1989. Central amendment has also been brought to Section 6 of the Hindu Succession Act in 2005 by the Hindu Succession Amendment Act, 2005 (Act 39 of 2005) making daughters also co-parceners along with the father. The only exception provided therein is found in the proviso to Sub-section (1) which is to the effect that the right conferred by the amendment will not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20.12.2004. To deny the benefit of amendment, it should be proved that there had been partition, alienation or disposition either testamentary or otherwise which had taken place prior to 29.12.2004. Therefore, even assuming that the first Plaintiff might have been married prior to the Tamil Nadu amendment, nevertheless she would have become a co-parcener along with her father, namely the first Defendant. So far as the second Respondent/second Plaintiff is concerned, the evidence of P.W.1 is categorical to the effect that it took place in 1998, several years after Tamil Nadu Amendment was brought into force. The Plaintiffs also have given a specific evidence regarding the date on which the first Respondent''s/first Plaintiff''s marriage took place. They have stated that the marriage took place on 12.04.1989. A women married on 12.04.1989 can very well give birth to a child on 07.01.1990. There would be no wonder in it.
It is the admitted fact that the marriage of the second Respondent/second Plaintiff took place only after the introduction of Tamil Nadu amendment. Therefore, the finding by the courts below to the effect that the marriages of both the Plaintiffs took place only subsequent to 25.03.1989, the date from which Tamil Nadu Act 1 of 1990 was brought into force cannot be termed either defective or infirm, much less perverse. No interference with the same is warranted. The necessary corollary is that both the Plaintiffs 1 and 2 and the Defendants 2 and 3 became coparceners along with their father, namely the first Appellant/first Defendant. Therefore, in respect of the ancestral properties of the first Respondent/first Defendant, the Appellants 1 to 3 and Respondents 1 and 2 would have become entitled to 1/5th share each.
All the eight items found in schedule 1 of the plaint are claimed to be the ancestral properties or the properties acquired from the income derived from the ancestral properties and hence they should also be taken as coparcener property. Out of eight items, five items are admittedly ancestral properties. They are items. 1 to 3, 5 and 8 of plaint first schedule. So far as the remaining three items, namely items 4,6 and 7 are concerned, it is the contention of the Defendants that they are the self-acquired properties of the first Appellant/first Defendant. They have contended that the first Appellant/first Defendant, out of his own earnings as agricultural coolie and from Sheep rearing, purchased the same. Even for rearing sheeps, some amount should have been invested. The first Appellant/first Defendant being the Kartha of the family was possessed of sufficient ancestral nucleus in the form of items 1 to 3,5 and 8 of the suit first schedule properties. Apart from that, the Defendants have not proved by reliable evidence that the income derived therefrom was not even sufficient to meet the needs of the family and there was no surplus and that on the other hand, the first Defendant had independent source of income. The evidence adduced in this regard by the Defendants have been disbelieved by the courts below. On proper appreciation of evidence, both the courts below have rendered a concurrent finding that the Defendants had not proved that the first Defendant had an independent source of income out of which items 4,6,7 of suit first schedule could have been purchased and on the other hand, they ought to have been purchased with the income derived from the joint family nucleus in the form of items 1 to 3, 5 and 8 of the suit first schedule. The finding of the courts below that all the eight items of the suit first schedule are joint family properties in which Plaintiffs 1 and 2(Respondents 1 and 2) and Defendants 1 to 3(Appellants 1 to 3) are entitled to equal shares as co-parceners and each one of them would be entitled to 1/5th share is on sound reasoning and the same does not require any interference. Therefore, the finding of the courts below that the Plaintiffs 1 and 2 together are entitled to 2/5th share is bound to be confirmed.
So far as the plaint second schedule is concerned, it consists of two items. So far as the first item of plaint second schedule is concerned, the claim of the Plaintiffs have been negatived by the courts below. The claim of the Plaintiffs that the said property was the separate property of their mother was negatived by the courts below. As against the same, they have not filed any appeal. The claim of the Plaintiffs that the second item of second schedule was that of their mother and on the death of their mother ,both the Plaintiffs and the first Defendant(first Appellant)became entitled to equal shares as her legal heirs has been upheld by both the courts below. Admittedly, a larger property having an extent of 2.40 acres was jointly purchased by the first Appellant(first Defendant) and his wife, the mother of the Respondents 1 and 2 and the said purchase was made during the lifetime of the mother of the Respondents 1 and 2. It is to be noticed that only after the death of the mother of Respondents 1 and 2, the first Appellant/first Defendant married the third Respondent/fourth Defendant and through her, the Appellants 2 and 3/Defendants 2 and 3 were born. Though a joint purchase was made under Ex.A6 by the first Appellant and his deceased wife, namely the mother of the Respondents 1 and 2, it is the clear case of the Respondents 1 and 2 that subsequent to the purchase, there was an arrangement between the two and by virtue of such an arrangement, the northern portion was taken by the first Appellant and southern portion was taken by the mother of the Respondents 1 and 2. Only that southern portion having an extent o 1.20 acrs is shown as the second item and the Respondents 1 and 2/Plaintiffs as two out of three of their legal heirs of their mother have claimed 2/3rd share in it. The courts below have also considered the above aspect in the light of the evidence adduced on both sides and arrived at a conclusion that there was such a division after joint purchase between the first Appellant(first Defendant and the mother of Respondents 1 and 2) and in such division second item of plaint second schedule was allotted to the mother of Respondents 1 and 2. But an attempt was made by the Defendants to show that there was no division in respect of the suit land as claimed by the Plaintiffs by producing Ex.B8, a sale deed executed by the first Appellant/first Defendant in favour of the third Respondent/fourth Defendant, in which undivided half share was sought to be conveyed. The said document was admittedly executed after the institution of the suit. Therefore, no importance could be attached to such a recital found in the sale deed which was intended to defeat the claim of the Plaintiffs.
The courts below, on appreciation of evidence in a proper perspective, have arrived at a correct conclusion that there was a division in which the southern portion having an extent of 1.20 acres was allotted to and enjoyed by the mother of the Plaintiffs and the same is shown to be the second item of suit second schedule and that in the said property, the Respondents 1 and 2 herein/Plaintiffs 1 and 2 together are entitled to 2/3rd share and the remaining 1/3rd share belongs to the first Respondent/first Defendant. No defect or infirmity could be found in the said findings. The preliminary decree passed by the trial court, which was confirmed by the first appellate court, directing division of the suit first schedule of properties into five shares and allotment of two such shares to the Respondents 1 and 2/Plaintiffs 1 and 2 and the second item of plaint second schedule into three equal shares and allotment of two such shares to the Respondents 1 and 2/Plaintiffs 1 and 2 does not require any interference by this Court in the second appeal. No substantial question of law is proved to have arisen in the second appeal. All the findings of facts which are sought to be challenged are not proved to be perverse. They are not even proved to be defective or infirm. Therefore, this Court comes to the conclusion that the second appeal does not even merit admission and the same deserves to be dismissed.
Accordingly, the Second Appeal is dismissed. Consequently, connected Miscellaneous Petition is dismissed. No costs.