Case Note & Summary
The case involves a partition suit filed by M. Kowsalyadevi (plaintiff) against her father (second defendant) and other family members, seeking a 1/8th share in two items of property. The first item was ancestral property of Arumuga Gounder (died 1994), who was allotted 'C' Schedule in a 1952 partition. The second item was purchased in 1996 from income of the first item. The plaintiff claimed that under Section 29(a) of the Hindu Succession Act (Tamil Nadu Amendment Act 1 of 1990), she was entitled to a share. The defendants contended that the first item was self-acquired by Arumuga Gounder, who executed a Will in 1996 in favour of his grandson (fifth defendant), and that the second item was settled by the second defendant on his son. The trial court granted a preliminary decree for partition, which was challenged by defendants 4 and 5 (appellants). The High Court upheld the decree, finding that the first item was ancestral joint family property based on the 1952 partition deed, and the second item was also joint family property as it was acquired from joint family income. The Will was held invalid as it was not proved and was executed after Arumuga Gounder's death (he died in 1994). The settlement deed was also not binding as it was executed after the pre-suit notice. The court dismissed the appeal, confirming the preliminary decree.
Headnote
A) Hindu Succession Act - Section 29(a) - Tamil Nadu Amendment - Daughter's Right to Partition - The plaintiff, daughter of the second defendant, claimed 1/8th share in suit properties as ancestral/joint family properties of deceased Arumuga Gounder. The court held that the first item of suit property was ancestral and joint family property based on the 1952 partition deed, and the second item was acquired from income of the first item, thus also joint family property. The daughter's right under Section 29(a) of the Hindu Succession Act (Tamil Nadu Amendment Act 1 of 1990) was upheld, granting her a share. (Paras 2-10) B) Will - Validity - Burden of Proof - The defendants set up a Will dated 20.02.1996 allegedly executed by Arumuga Gounder in favour of the fifth defendant (grandson). The court found that the Will was not proved in accordance with law, as the attesting witnesses were not examined and the Will was surrounded by suspicious circumstances, including being executed after the testator's death (Arumuga Gounder died in 1994). The Will was held to be invalid and not binding on the plaintiff. (Paras 11-15) C) Settlement Deed - Validity - The second defendant executed a settlement deed in favour of his son after the pre-suit notice claiming partition. The court held that the settlement deed was not acted upon and was executed to defeat the plaintiff's claim, and thus not binding on the plaintiff. (Paras 16-18) D) Adverse Possession - Not Established - The defendants claimed adverse possession, but the court held that mere possession without animus and without ouster of co-owners does not constitute adverse possession. The plaintiff and defendants were in joint possession, and the defendants failed to prove exclusive possession hostile to the plaintiff. (Paras 19-20)
Issue of Consideration
Whether the suit properties are ancestral/joint family properties entitling the plaintiff daughter to a share under Section 29(a) of the Hindu Succession Act (Tamil Nadu Amendment), and whether the Will dated 20.02.1996 and settlement deed are valid and binding on the plaintiff.
Final Decision
The appeal is dismissed. The judgment and decree dated 25.03.2024 in O.S. No.84 of 2012 on the file of the I Additional District Judge, Coimbatore are confirmed. No costs. Consequently, connected miscellaneous petition is closed.
Law Points
- Hindu Succession Act
- 1956
- Section 29(a) (Tamil Nadu Amendment Act 1 of 1990)
- Partition
- Joint Family Property
- Will
- Settlement Deed
- Burden of Proof
- Adverse Possession
