2022 (2) TMI 683

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....nts, who are the plaintiffs 1 and 2 in the above referred suit, are before this Court with the present Second Appeal. 2. The suit is for declaration, declaring that the suit property is the joint family property of the plaintiffs and the defendants. 3. For the sake of convenience, hereinafter the parties are referred to, as per their litigative status before the trial Court. 4. The laconic averments made in the plaint, are as follows: (i) The plaintiffs 1 and 2 are recognised as the legal representatives of the deceased 3rd plaintiff. The father of the first plaintiff, namely, K.J. Damodaran has got 3 brothers, viz. K.J. Venkataperumal, K.J. Bhakthavatchalam (3rd plaintiff) and K.J. Munuswamy (3rd defendant). As of now, th....

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.... same was denied by the plaintiffs. Therefore, it would necessary to declare that the suit property is the joint family property of the plaintiffs, first defendant and third defendant and for consequential permanent injunction. Hence, the suit. 5. The case of the first defendant, as averred in the written statement, is as follows: (i) The relationship mentioned in the plaint, is admitted. The suit schedule property has not been purchased by utilising the joint earnings of the plaintiffs' father K.J. Venkataperumal and his brother Bakthavatchalam. The first defendant has purchased the suit property from Vasudeva Naidu under a registered Sale Deed dated 14.05.1958 out of her own earnings and out of her own funds. After made pu....

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.... before him, the learned District Munsif, Madurantagam, by judgment and decree dated 21.12.2004, came to the conclusion that the plaintiffs had not proved their case and ultimately, dismissed the suit. In the appeal preferred by the plaintiffs in A.S. No. 31 of 2009, the learned Subordinate Judge, Madurantagam, had confirmed the findings arrived at by the trial Court and dismissed the appeal. 9. Feeling aggrieved over the findings arrived at by the lower appellate Court, the plaintiffs 1 and 2/appellants, are before this Court with the present Second Appeal. The Second Appeal was admitted on file after formulating the following substantial questions of law; "(i) When Order 14 Rule 2 of C.P.C. mandates that judgment should be pro....

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....ty having by K.L. Jeyarama Naidu's family. The said stand taken by the plaintiffs was denied by the defendants as the suit schedule property has been purchased by the first defendant by utilising her own funds. 13. Therefore, being the reason that the plaintiffs asserted their case as the suit schedule property has been purchased from the funds realised from the joint family property, it is for them to prove their case. In this regard, it would necessary to see the recital found in the Sale Deed stands in the name of the first defendant, but here is the case, the plaintiffs have not produced a copy of the said Sale Deed, as exhibit. So, we have to decide the plaintiffs' case, without seeing the Sale Deed, which stands in the name....

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....equate nucleus having by them for purchasing the suit schedule property in the name of the first defendant. In this regard, in order to show the same, none of the document has been exhibited on the side of the plaintiffs. 17. More than that, the first defendant being the lady, the law is well settled, unless there is definite, clinching proof that the property stands in the name of the female was purchased by utilising the joint family fund, which is not for the female to prove how she acquired the same. In this regard, the Hon'ble Division Bench of this Court in the judgment of RANGANAYAKI AMMAL vs. SRINIVASAN reported in 1978 (1) MLJ 56 has observed as follows; "It is by now well established that properties standing in the....

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....so traversed in the same line and concurrently held that the plaintiffs have not proved their case. 20. Another aspect, which is necessary to decide in this appeal is that, while at the time of framing the substantial questions of law, the alleged Will executed by the first defendant has been mentioned as the same has not been answered. In this regard, on going through the judgment rendered by the Court below, after the death of the first defendant, the plaintiffs have not taken any steps to amend the plaint, and impleaded the legal representatives of the deceased first defendant. 21. It is well settled that without any pleading, the evidence let in on that score, cannot be looked into. Herein also, without producing the alleged Will ....