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Judgment
Prabha Sridevan, J.—The plaintiff is the appellant. The plaintiff claimed 1/5th share in the suit schedule ''A'' to ''E'' and the entire ''F''
schedule property. But subsequently, the properties described in ''C'' and ''D'', were deleted by order of this Court in C.R.P.No.3905 of 1983.
The contest here is only with regard to the immovable properties described in ''A'' and ''B'' schedules.
The appellant is the daughter of the first respondent and the respondents 2 to 4 are the sister and brothers of the appellant. According to the
appellant, her father Kodandaraman Pillai died intestate in 1966 at Madras, leaving behind the parties herein as his legal representatives and some
properties. He did a lorry transport business and was earning a lot of money and an Insurance Policy for Rs.20,000/- was taken by him, wherein
the appellant and the second respondent were the nominees.
It is the case of the appellant that with the funds realised from the Insurance Policy, the ''A'' schedule property was purchased and with the rent
received from ''A; Schedule property, the ''B'' Schedule property was purchased. Therefore according to the appellant, they must be treated as her
father''s estate and she is entitled to a share.
The first respondent, who is the mother, denied the averments in the plaint and submitted that the lorry transport business was started in 1965
and since Kadhandaraman Pillai died soon after, there was no question of earning a lot of money from the said business. As regards the Insurance
Policy, the first defendant has stated that this amount is not available, since it has been spent for the maintenance and education of the children.
The trial court dismissed the suit. Against that the appeal has been filed. The question is whether the appellant is entitled to any share in the
properties.
The learned counsel appearing for the appellant vehemently argued that when the plaintiff had stated that the suit properties had been purchased
from the policy amount, it is the duty of the respondent to demonstrate that the suit property was purchased with other funds. When the first
respondent has been unable to do so, the presumption is that the source for consideration is the L.I.C. Policy amount and therefore the appellant
should be given a share.
The learned counsel for the respondents on the other hand would submit that the plaintiff seeking partition should first show what are the
properties that form the estate of the deceased and referring them as ""some property"" will not really establish the plaintiff''s case. The mother had
independent funds of her own and therefore there is no presumption that the suit properties were only purchased from the policy amount.
The learned counsel also submitted that even assuming that in the L.I.C. Policy, the appellant and her sister the second respondent were showed
as nominees. All that it means is they can represent the heirs of the deceased and realise the amount; but they are not exclusively entitled to the
sum. Therefore at best, the appellant would be entitled to 1/5th share in the policy amount. When the appellant is not able to prove her case, she is
not entitled to any relief and therefore the suit was rightly dismissed. Reliance was placed on SITAJI AND OTHERS VS. BIJENDRA NARAIN
CHOUDHARY AND OTHER In 1954 SC 601 and Gogula Gurumurthy and Others Vs. Kurimeti Ayyappa, to show that any property
purchased by a Hindu Widow out of the income generated from her husband''s estate cannot be presumed to be part of the estate of the
deceased, in which the co-parcener can claim a share. Unless the co-parcener or the persons claiming the share are able to prove that this was
treated to be a accretion to the estate, this property would be the Hindu window''s sole property.
The plaint states that after the death of father Kodhandaraman Pillai, the first defendant somehow or other realised the Insurance money and
purchased the ''A'' shcedule property and the ''B'' Schedule property was purchased with the rental earnings of the ''A'' schedule property. There is
no documentary evidence to support this case. According to the appellant, this information was given to her by her paternal grand mother. There is
nothing to show that ''B'' schedule property was purchased from the rental income generated from the ''A'' schedule property. The appellant could
have furnished acceptable evidence to show that the ''B'' schedule property was only purchased out of the ''A'' schedule property income. In the
absence of satisfactory pleadings and acceptable proof, it is not possible to grant a decree in favour of the appellant in respect of the ''B'' schedule
property.
As regards ''A'' schedule property, much reliance was placed on the fact that the recitals of Ex.B2 would show the schedule of payment of
consideration, wherein it is seen that Rs.19,100/- was paid before the Sub Registrar at the time of registration of the deed. This document has been
registered on 7.10.1968. The father of the appellant Kodhandaraman Pillai died in 1966. The evidence is that he left behind five young children
and the young widow. The evidence of DW1 is that the Insurance Policy was received six months after the death of her father. The appellant
would have us believe that the policy amount was retained by the young woman, who had to take care of five children for more than a year,
anticipating that she would purchase a property in 1968. The appellant herself admits that her mother had carried on the lorry shed business.
@mk;kh yhhp b&l; elj;jpaJ bjhpa[k@;; . She also admits that in 1975, her mother was earnuing a lot. 1975 -y; mk;khtpw;F ey;y tUkhdk;. mk;kh
rk;ghjpj;J epy'';fs; Tl th'';fp ,Uf;fpwhh;/
It is true that the reference to her mother''s earning is from the year 1975. ''A'' schedule property was purchased in 1968. But yet it establishes
that after the death of the husband, the first respondent had been independently carrying on business, managing a lorry shed and taking care of the
family, which had lost the father. The first respondent had also denied that she has utilised the Rs.19,000/-realised from the L.I.C. Policy for
purchasing the suit property. On the contrary, she has clearly stated that out of this amount, Rs.11,000/- was paid to clear the debts left by her
husband. Corroborating this evidence, DW2 has been examined, who has stated that he had lend Rs.11,000/- and the first respondent cleared the
debt, after she received the insurance money. DW2 claims to know the family of the appellant and the first respondent for the past 27 years, since
the first respondent used to be his tenant. Nothing has been elicited from this witness to show why his evidence regarding the loan must be
disbelieved. Further the appellant''s father had died very young, leaving behind 5 children, ranging from a infant of about 45 days and to a daughter
who is about 7 years old. Therefore, it was submitted that from the evidence of DW1 she had spent the amounts for maintaining her children, was
quite believable.
It was submitted that the written statement is totally silent regarding the manner in which the policy amount was spent, this Court should not
accept any evidence without pleadings to support it. But the plaint itself cannot be said to be complete with details regarding the allegations that the
appellant seeks to make. So this Court is left with no option but to balance the evidence adduced on both sides and arrive at a conclusion as to
which is more believable and plausible. The first respondent has established her case that the policy amount was not utilised to purchase the ''B''
schedule property and there is no evidence to show that the rental income generated from the ''A'' schedule property was utilised to purchase ''B''
schedule property and therefore the appellant cannot claim any share in the suit immovable property. Even as regards the L.I.C. Policy amount, as
rightly submitted by the learned counsel for the appellant, the nominees are not exclusively entitled to the policy amount. They can only receive it on
behalf of the other legal heirs. IN Shri Vishin N. Kanchandani and Another Vs. Vidya Lachmandas Khanchandani and Another, it has been held
that a nominee specified in a National Savings certificate does not on the death of the holder become entitled to the sum due to the exclusion of
other heirs. In that the Supreme Court held that a nominee cannot be treated as an heir or a legatee and any amount payable on the death of the
holder becomes the estate of the deceased and devolves upon all the heirs who are entitled to succeed under law. So the appellant has no
exclusive right. Further the evidence of DW1 as also her pleadings that she used it for the family expenses, cannot but be believed. It must be
remembered that when Kodhandaraman Pillai died, he left behind a very young family. The decisions relied on by the learned counsel for the
respondent are as follows:
SITAJI AND OTHERS VS. BIJENDRA NARAIN CHOUDHARY AND OTHER In 1954 SC 601 Index Note (d) Hindu Law - Widows -
Accretions - Acquisition - (Evidence Act (1872), Ss.101-103)
There is no presumption that any particular property in the widow''s hand is part of her husband''s estate because a widow can have properties of
her own. The fact that the widow purchased them out of the savings made by her from the income of her husband''s estate does not necessarily
make it an accretion because a Hindu widow has an absolute right to the income and is not bound to save any of it for the reversioners. She can, if
she so chooses, if she wants, keep it separate and deal with it as her own. The question is one of intention but it is also one of fact and must be
decided as such. Case law relied on. The burden is upon the reversioner to establish that such property formed part of the estate of the propositus
because he can claim only property which belonged to the propositus.
And
Gogula Gurumurthy and Others Vs. Kurimeti Ayyappa,
Index Note ( C ) Hindu Law - Widow - Accretions to husband''s estate - Presumption.
Brief Note:- ( c) The acquirer of property presumably intends to retain dominion over it and in the case of a Hindu widow the presumption is none
the less so when the fund with which the property is acquired is one which though derived from her husband''s property, was at her absolute
disposal
Held on facts that in the instant case it could not be held that the widow intended to treat the income from the husband''s estate as an accretion to
his estate ILR (1902) Mad. 351 Rel.on.
These two decisions also only help the respondents and support the trial court''s judgment that the appellant is not entitled to any share in the suit
property.
For all these reasons, I am not inclined to interfere with the judgment and decree of the trial court. The appeal is dismissed. Since the parties
are related to each other, no costs.