(Prayer: Second Appeal is filed under Section 100 CPC, to call for the records and to set aside the judgment and decree dated 29.11.2021 passed in A.S. No. 18 of 2021 on the file of the Fourth Additional District Court, Madurai, partly reversing the judgment and decree dated 19.01.2021 passed in O.S. No.80 of 2019 on the file of the Subordinate Court, Thirumangalam.)

1. The plaintiffs in a suit for partition, aggrieved by the reversal findings rendered by the first appellate Court, are the appellants herein.

2. I have heard Mr.J.Barathan, learned counsel for the appellants and Mrs.V.Sundari, learned counsel for the respondents.

3. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

4. The second appeal was admitted by me on 23.03.2026, on the following substantial question of law:

               “Whether the first Appellate Court was right in reversing the findings of the trial Court in respect of item Nos.15 to 19, ignoring the vital admissions made by the respondents regarding the existence of the joint family nucleus?

5. After hearing the learned counsel, on 22.04.2026, the following substantial question of law was framed additionally:

               Whether the respondents / defendants had having admitted to the character of the properties to be joint family properties can turn around and deny the share in the appellants in item Nos. 1 to 14?

6. Brief facts that are necessary for deciding the second appeal are as hereunder:

               6.1. The plaintiffs, claiming that the suit properties were joint family properties, claimed 18/25 share (each of them entitled to 6/25 share). The case of the plaintiffs is that the suit property originally belonged to one Pitchai, his wife/Thangammal as well as his mother/Kaluvayee. It is the further case of the plaintiffs that Thangammal was a non-earning member, who had no independent income alone and only for name sake and for good fortune, item Nos.15 to 19 were purchased in the name of the first defendant/Thangammal, who is wife of Pitchai. Taking advantage of the properties having been purchased in her name, the first defendant has executed a sale deed in respect of items 15 to 19, she executed a sale deed in respect of item Nos.15 to 17. Challenging the sale deed and also claiming partition, the suit came to be filed.

               6.2. The suit was resisted by the defendants stating that the suit is not maintainable. The properties in item Nos.15 to 19 purchased in the name of the first defendant are self acquired properties. The relief sought by the plaintiffs are beyond the pecuniary jurisdiction of the Court and the suit is hit by law of limitation and prayed the suit is to be dismissed.

 7.1. On the above pleadings, the trial Court framed the following issues.

               “1. Whether the plaintiffs are entitled for the relief of partition in respect of 18/25 share in respect of the suit properties as prayed for?

               2. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for?

               3. Whether registered sale deed dated 15.10.2018 executed by the 1st defendant in favour of the 2nd defendant is valid in law?

               4. Whether suit is hit by law of limitation?

               5. To what other relief?

               “ 7.2. The trial Court also framed the additional issue is as follows:

               “1. Whether the plaintiffs have paid correct court fee properly valuing the relief”

8. At trial, on the side of the plaintiffs, the first plaintiff examined himself as P.W.1 and 22 documents were marked as Ex.Al to Ex.A22. On the side of the defendants, defendants examined themselves as D.W.1 and D.W.2 and 8 documents were marked as Ex.Bl to Ex.B8.

9. The trial Court decreed the suit holding that the properties are joint family properties, even though item Nos.15 to 19 were purchased in the name of Thangammal, with the further finding that the said Thangammal was only a name lender. The trial Court has also granted a relief of permanent injunction as prayed for by the plaintiffs.

10. Challenging the said judgment and decree, the defendants 1 and 2 had preferred an appeal in A.S.No.18 of 2021 and the first appellate Court has reversed the findings and allowed the appeal in part, by granting decree for 1/5 share in respect of item Nos.1 to 14 and 21 alone.

11. Aggrieved by the same, the plaintiffs are now before this Court by filing this Second Appeal.

12 . Arguments of Mr.J.Barathan, learned counsel for appellants:

               The learned counsel for the appellants would state referring to Ex.A18 and Ex.A19, which are sale deeds in the name of the first defendant, the said documents clearly indicate the status of the first defendant to be a house wife. He would therefore state that even according to the first defendant, she was not having any independent source of the income to acquire the properties in item Nos.15 to 19 in her name and therefore, it clearly established the fact that the first defendant was only a name lender, probalising the case put forth by the plaintiffs that only for good luck and fortune, the properties were acquired in the name of the first defendant. The learned counsel for the appellants would also bring to my notice the pleadings in the written statement, proof affidavit filed by the first defendant and the clear admissions made therein that the properties are joint family properties and not self acquired properties. The learned counsel would therefore state that in view of Section 58 of the Indian Evidence Act, admitted facts need not be proved and therefore, the trial Court had rightly granted the decree in respect of all items, which has been erroneously set aside by the first appellate Court. The learned counsel would also invite my attention to the judgment of the trial Court, which recorded the fact that the learned counsel for the defendants, himself has conceded to the fact that the properties were joint family properties. He would further state that the very same counsel represented the respondents even before the first appellate Court and in such circumstances, it is not open to the respondents to now take a different stand, after having admitted to the character of the properties to be joint family properties.

13. Arguments of Mrs.V.Sundari,learned counsel for the respondents:

               13.1. Per contra, Mrs.V.Sundari, learned counsel for the respondents would state that the appellants themselves as plaintiffs, have filed registered sale deeds, which are only in the name of Kaluvayee and her son Pitchai. It is therefore her contention that the properties purchased in the name of a Female Hindu, all transactions being after 1963 onwards can only be the self acquired properties of said Kaluvayee. Pitchai being her only legal heir, inherited the said 1/2 share of the said Kaluvayee, properties jointly purchased by them and Pitchai became the absolute owner. The learned counsel would therefore state the five children of Pitchai are entitled to 1/5 share alone, that too in respect of item Nos.1 to 14 and 21.

               13.2. With regard to item Nos.15 to 19, it is the submission of the learned counsel for the respondents that the properties have admittedly been purchased in the name of the first defendant and there is absolutely no evidence on the side of the plaintiffs to establish that the said properties were acquired, from and out of excess income available to the joint family. She would further state that so-called admissions in the proof affidavit cannot be read in isolation, to allow the second appeal holding that all the items of the properties are joint family properties.

               13.3. The learned counsel for the respondents has relied on the decision of the Hon'ble Supreme Court in Marabasappa (Dead) v. Ningappa (Dead) reported in 2011-9-SCC-451.

14. I have carefully considered the submissions advanced by the learned counsel for the appellants as well as the learned counsel for the respondents.

15.Discussion:

               15.1. The properties in item Nos.1 to 14 and 21 have admittedly been purchased in the name of Kaluvayee and her son/Pitchai. The parties to the partition suit are the children and legal heirs of said Pitchai. The Plaintiffs and the second defendant are the children of Pitchai. Thangammal is the wife of Pitchai. It is the case of the plaintiffs that item Nos.1 to 14 and 21 are joint family properties and therefore, by birth, the plaintiffs, daughters would also be treated as co-parceners and they along with the second defendant, would get 6/25 share in the suit property. Insofar as item Nos.15 to 19 is concerned, it is the case of the plaintiffs that though the properties were purchased in the name of their mother/Thangammal, the first defendant, she did not have any income of her own and their father/Pitchai alone purchased the properties in her name and therefore, these properties are joint family properties, which are available for partition.

               15.2. The trial Court decreed the suit holding that the first defendant had admitted in the witness box that she was only taking care of the family and it was only her husband/Pitchai, who was taking care of the acquisition of properties and management of the same. However, the first appellate Court reversed the said findings of the trial Court, finding that the plaintiffs have not established the properties to be joint family properties and consequently, the plaintiffs are entitled to only 1/5 share and not 6/25 share each as claimed. In support of his submission, the learned counsel for the appellants would invite my attention specifically to the proof affidavit of the first defendant, in which paragraph No.4 reads as follows:

              

               15.3. Referring to the said statement in the proof affidavit, it is urged that it is a clear admission that the properties are the joint family properties and undivided and therefore, based on the admissions, the first appellate Court ought to have confirmed the findings of the first trial Court, I am unable to accept the said arguments of the learned counsel for the appellants. Firstly, the specific case of the first defendant in the written statement is that the properties in item Nos.15 to 19 are her self acquired properties, standing in her name and they are not available for partition. In paragraph No.4 of the proof affidavit, the reference can at best be only with regard to item Nos.1 to 14 and 21. Further, the statements cannot be interpreted that the first defendant had admitted the character of all items of the property to be joint family properties. If read as a whole, in the context of the defence raised in the written statement of the first defendant, it is only to be seen that the first defendant has only admitted 1/5 share to the plaintiffs/daughters and not the share as claimed by them, that is, 6/25 share each.

               15.4. The properties are admittedly standing in the name of the first defendant. The burden was very heavily on the plaintiffs' shoulders to establish that these properties were purchased in her name, by their father/Pitchai from and out of joint family funds and that the first defendant was only a name lender. The purchases in the name of the first defendant were admittedly after the coming into force of the Hindu Succession Act. Section 14 of the Hindu Succession Act confers full ownership on a female Hindu,over property acquired by her, including property obtained on her own or from and out of her Sreedhana. The Hon'ble Supreme Court in Marabasappa's case held that the property acquired by a Hindu woman does not become part of the joint family property, and she has full liberty to deal with the same as she wishes. In the very same issue, the Hon'ble Supreme Court also held that when no proof is forthcoming from the plaintiffs to establish that the disputed property is a joint family property, then burden of proof cannot be shifted to the defendants to prove that the properties are self acquired properties of the defendants. This judgment will squarely apply in all force, to the present case, both in respect of item Nos. 1 to 14 and 21 as well as item Nos.15 to 19.

               15.5. On going through the oral and documentary evidence, I do not find that the plaintiffs have been able to discharge the burden of proof with regard to the properties having been purchased from and out of the joint family income in the name of the wife of Pitchai/first defendant. The first appellate Court had rightly assessed the oral and documentary evidence and held that the plaintiffs are not entitled to any share in item Nos.15 to 19, which are the properties standing in the name of the first defendant. When the plaintiffs have not adduced any proof in this regard, they cannot expect the first defendant to give evidence to establish that she had independent source of income to acquire item Nos. 15 to 19 properties in her name.

               15.6. In view of the above, I do not see any illegality or perversity in the findings of the first appellate Court, dismissing the suit insofar as item Nos.15 to 19 are concerned and consequently the relief of declaration, which was negatived by the first appellate Court, though originally granted by the trial Court also does not warrant interference.

               15.7. Coming to item Nos.1 to 14 and 21, I have already held that the properties are admittedly purchased in the names of the grandmother/Kaluvayee and the father of the plaintiffs/Pitchai. There is no unequivocal admission that these properties are joint family properties. I have already dealt with the scope for admission which has been strongly relied on by the learned counsel for the appellants and found that it is not their admission that the properties are joint family properties, giving a birth right to the daughters/plaintiffs. Thus, the plaintiffs are only entitled to 1/5 share in item Nos.1 to 14 and 21 being daughters of Pitchai. In fact, admittedly, Pitchai was only son of Kaluvayee and on her demise, he became entitled, as sole and absolute owner of item Nos.1 to 14 and 21 and after his demise, the property would go equally to the wife/first defendant, daughters/plaintiffs and the son/second defendant, each taking 1/5 share alone. The first appellate Court has therefore, rightly modified the decree of the trial Court. There being no perversity in the findings rendered by the first appellate Court, I do not see any grounds for interference under Section 100 of the Code of Civil Procedure. There is no merit in the second appeal and the substantial questions of law are answered against the appellants/plaintiffs.

16. Result:

In fine, the Second Appeal is dismissed. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.