Judgment · High Court · 1998

A.F.A.No. 7 of 1999:-3-:Madhavan Pillai. According to the plaintiffs, the partiesare Hindu Vellalas formerly governed by the NanjinadVellala Act and are at present governed by the HinduSuccession Act in the matter of inheritance andsuccession. So, according to the plaintiffs, they areentitled to 2/3 share and the first defendant is entitled to1/3 share in the property. It is their further case that inspite of repeated demands and issuing lawyer noticefinally to the first defendant to effect partition and settlethe matter amicably, the first defendant was notprepared for the same and hence the suit was filed forpartition and separate possession of 1/3 share each inthe schedule property. 4.The first defendant had filed a detailedwritten statement raising the following contentions:-The deceased Madhavan Pillai had another son byname Sankaralingom Pillai who died on 11.9.1976. Theschedule property was the ancestral property in thehands of Madhavan Pillai, to which the said MadhavanPillai and his two sons alone are entitled to. The A.F.A.No. 7 of 1999:-4-:deceased Madhavan Pillai had got 1/3 right only in theschedule property and the first defendant and hisdeceased brother Sankaralingom Pillai got 1/3 righteach. It is also averred that the deceasedSankaralingam Pillai left behind his daughterSmt. Meena and she is entitled to get 1/3 share to whichher father was entitled to. The mother of the plaintiffs, the first defendant and the deceased SankaralingamPillai owned and possessed 1 acre of land inMannanthala in Trivandrum. According to the firstdefendant, there was an oral agreement in the year 1964that in case that property in Mannanthala having anextent of 1 acre is given to the plaintiffs, they will notclaim any right over the plaint schedule property andaccording to such settlement, the plaintiffs were giventhat 1 acre of property which belonged to the mother ofthe plaintiffs, the first defendant and the deceasedSankaralingam Pillai and hence, according to the firstdefendant, plaintiffs are estopped from claiming anyshare in the plaint schedule property. It is also averred A.F.A.No. 7 of 1999:-5-:that the suit is bad for non joinder of parties as one of thesharers, Smt. Meena is not impleaded in the suit. It is alsodenied that the plaintiffs have requested for partition andfurther stated that they have already sent a reply to thelawyer notice sent by the plaintiffs. 5. Based upon the rival pleadings, the trial courtinitially framed seven issues and during the trial, evidences were adduced and the plaintiffs' evidence isonly the oral testimony of PW1 and there was nodocumentary evidence from the side of the plaintiffs. From the side of defendants, Dws.1 to 3 were examinedand they have produced Exts.B1 to B3 documents. Ext.X1 is also marked as the document produced by thewitnesses. While answering issue No.3, the trial courthas found that the plaint schedule property which was inthe hands of late Madhavan Pillai is an ancestralproperty. Finally by judgment dated 31.3.1984, the trialcourt had found that at the time of death of MadhavanPillai, he had 2/3 share in the plaint schedule propertyand since Madhavan Pillai had died subsequent to the A.F.A.No. 7 of 1999:-6-:commencement of the Hindu Succession Act, as perSection 8 of the said Act, both the plaintiffs and the firstdefendant would get the said 2/3 share of late MadhavanPillai in the plaint schedule property in equal shares andthus the court below found that each of the plaintiffs isentitled to get 1/3 of 2/3 share in the schedule property. Accordingly, a preliminary decree was passed declaringthat each of the plaintiffs is entitled to 1/3 of 2/3 share inthe plaint schedule property and the plaintiffs wouldapply for a commission to effect partition in the finaldecree.6.Challenging the above finding and allotmentof share, the first appellant, who is the sole defendant atthat time, preferred A.S.No.273 of 1984 before thisCourt. Suffice to say, the plaintiffs therein who are therespondents herein did not file any appeal or crossobjection against the finding of the trial court. Going bythe judgment of this Court in A.S.No.273 of 1984, dated17.3.1992 it can be seen that the only point which wasmaterially raised before this Court was the paternity or A.F.A.No. 7 of 1999:-7-:legitimacy of Smt. Meena who is the second appellantherein. No other point was canvassed for theconsideration of this Court and as such, all otherfindings arrived on by the trial court in its judgmentdated 31.3.1984 became final. In the appeal also, thisCourt found that admittedly, the plaint scheduleproperty was the ancestral property of the family. Bythe same judgment, it was further found that the secondappellant herein who was not a party to the suit is thelegitimate daughter of late Sankaralingam Pillai whowas none other than the son of late Madhavan Pillai- thefather of the plaintiffs and the first defendant. ThisCourt had also found that Smt. Meena was not made as anecessary party to the suit in spite of objection raised bythe first defendant- the first appellant herein andtherefore, this Court found that the suit was bad for nonjoinder of necessary parties. Thus, this Court remandedthe suit to the lower court so as to enable the plaintiffsto implead Smt. Meena also as a party to the suit. Thus, it can be seen that in appeal, this Court had found that A.F.A.No. 7 of 1999:-8-:the second appellant herein is a necessary party to thesuit as she is also entitled to get share of the propertyand for such adjudication, the matter was remanded. The finding of this Court that the plaint scheduleproperty was an ancestral property of the family has alsobecome final as against the plaintiffs as the said findingis not challenged before any higher forum and thatfinding became final not only for the above reason, butfor the reason that the trial court had also found that theproperty in question was the ancestral property of thefamily and that finding was not challenged by theplaintiffs.7.Thus, on the basis of the remand order, i.e.,judgment dated 17.3.1992 in A.S.No. 273 of 1984, thesuit was again taken for consideration and in terms ofthe above judgment dated 17.3.1992, the secondappellant herein had been impleaded therein as thesecond defendant as per order dated 27.7.1992 inI.A.No.2581 of 1992. Finally, by judgment dated30.1.1993 in O.S.No.316 of 1982, the trial court A.F.A.No. 7 of 1999:-9-:disposed of the suit giving a decree for partition andseparate possession whereby it was held that each ofthe plaintiffs is entitled to get 1/12 share of the suitproperty and both the defendants are allowed to take5/12 share each in the suit property. Further, as per thetrial court judgment, the equitable relief claimed by thedefendants would be considered in the final decreeproceedings at the time of actual division.8.Aggrieved by the trial court judgment dated30.1.1993 in O.S.No.316 of 1982, the plaintiffs who arerespondents herein preferred A.S.No.121 of 1994before this Court. This Court by judgment dated 5thMarch, 1998 found that the suit property originallybelonged to Mrs. Kolamma Ammal, mother of lateMadhavan Pillai and not an ancestral property in hishands. On the basis of such finding, this Court furtherheld that on Madhavan Pillai's death, his four children, who are two plaintiffs, first defendant and lateSankaralingam Pillai take ¼ share each and lateSankaralingam Pillai's share devolved on the second A.F.A.No. 7 of 1999:-10-:appellant/second defendant. Thus, accordingly, theappeal was allowed and the revised preliminary decreepassed by the trial court is modified declaring that theplaintiffs are entitled to ½ share, first defendant isentitled to ¼ share so also the second defendant isentitled to ¼ share in the property. The above findingand allotment of shares are challenged in this appeal.9.We have heard learned Senior counselappearing for the appellants Sri.R.D.Shenoi andMr.G.S.Reghunath, learned counsel appearing for therespondents. 10.In his persuasive argument, Mr.R.D.Shenoi, the Senior Counsel submits that the ancestral propertyof late Madhavan Pillai belongs to the plaintiffs, the firstdefendant who are the children of late Madhavan Pillaiand Smt. Meena, daughter of late Sankaralingam Pillai. According to counsel, the property in question originallybelonged to one late Sankaralingam Pillai (Senior), thefather of late Madhavan Pillai and late Madhavan Pillaigot the property as per Ext.B1 partition deed dated A.F.A.No. 7 of 1999:-11-:13.7.1119. From Ext.B1, it is crystal clear that theproperty originally belonged to late Sankaralingam Pillai(Senior) who purchased the same with his own funds. The learned Senior counsel submits that the specificcase put forward by the defendants is that the propertyin question was the ancestral property in the hands oflate Madhavan Pillai which was inherited from his fatherlate Sankaralingam Pillai (Senior) and therefore, according to the defendants, late Madhavan Pillai anddeceased Sankaralingam Pillai have got right by birth inthe property even during the life time of their father. Thus, it is submitted that the share due to the brotherdeceased Sankaralingam Pillai will be vested on hisdaughter Smt. Meena who is the additional seconddefendant. The learned counsel further argued that thetrial court had held that the suit property is theancestral property in the hands of late Madhavan Pillai, but it was found that the second appellant/seconddefendant was not a legitimate issue of the deceasedSankaralingam Pillai who is the brother of the first A.F.A.No. 7 of 1999:-12-:defendant/the first appellant herein. It is also pointedout by counsel that as per the earlier finding of the trialcourt, each of the plaintiffs is entitled to claim 1/3 out of2/3 share and the first defendant is entitled to get 1/3share. According to the learned counsel, those findingsof the trial court are final as far as the plaintiffs areconcerned as they did not challenge those findings. Counsel further pointed out that it is the first appellantwho challenged the judgment of the court below to theextent to which it was held that each of the plaintiffs isentitled to claim 1/3 out of 2/3 share of the property andthe first defendant is entitled to the only remaining 1/3share and there was no share to the illegitimatedaughter of the deceased Sankaralingam Pillai. So,according to counsel, the finding of the trial court thatthe property in question was an ancestral property ofthe family became final. 11.It is further argued by the learned Seniorcounsel that the above findings of the trial court are notchallenged in appeal by the plaintiffs, and those contra A.F.A.No. 7 of 1999:-13-:contentions were not taken even at the time of hearingof the appeal which was preferred by the first defendanti.e.,A.S.No.273 of 1984. By judgment dated 17.3.1992 inA.S.No.273 of 1984, this Court had found that theproperty in question is an ancestral property and alsofound that the second appellant herein who was notimpleaded as necessary party to the suit is entitled toget share in the property and for that purpose and forthe proper allotment of share to the second appellant, the suit was remanded with a direction for impleadingthe second appellant as additional defendant in the suit.On the basis of the above materials, the learned counselfor the appellants fervently submits that the findingarrived on by both the trial court as well as this Court inappeal, that the property in question is an ancestralproperty in the hands of late Madhavan Pillai becamefinal and the said finding is not disturbed in any appealor other proceedings in any other higher forum. Therefore, according to the learned counsel, the findingarrived by this Court as per the impugned judgment is A.F.A.No. 7 of 1999:-14-:not correct and beyond its appellate jurisdiction. Another point advanced by the learned counsel for theappellants is that the finding of the trial court as well asthis Court regarding the legitimacy of the secondappellant/second defendant Smt. Meena is also notchallenged by the plaintiffs and therefore, the secondappellant/second defendant is also entitled to get sharein the plaint schedule property and the only point to bedetermined is the extent of share to be allotted to theparties in the suit and how the same shall be allotted.12.Per contra, Mr.G.S.Raghunath, learnedcounsel appearing for the respondents, supporting thefinding arrived on by this Court in A.S.No.121 of 1994submits that the property in question is not an ancestralproperty, but it is a self acquired property of lateSankaralingam Pillai (Senior), the grandfather of theplaintiffs and the first defendant. According to learnedcounsel for the respondents, by judgment dated17.3.1992 in A.S.No.273 of 1984, this Court hadremanded the matter for fresh disposal and it was an A.F.A.No. 7 of 1999:-15-:open remand and hence, fresh issues can be raised. It isalso submitted by counsel that the findings of the trialcourt initially were wrong and based upon the remandorder, the matter was considered again and therefore, they can challenge all the wrong findings arrived on bythe court below initially. According to counsel, the realposition is clear from Ext.B1 document that the propertywas purchased by late Sankaralingam Pillai (Senior) byusing the dowry amount and hence it cannot be said thatit is an ancestral property, but on the other hand thewife of late Sankaralingam Pillai (Senior) has also rightover the property. Thus, supporting the judgment ofthe learned single Judge, the learned counsel for therespondents submits that there is no ground to interfereby this Court in appeal, against the finding arrived on bythe learned Single Judge.13.We have anxiously considered the rivalcontentions and also perused the materials and theevidence available on record. We have carefully perusedthe judgments of the trial court and also the judgments A.F.A.No. 7 of 1999:-16-:of the learned Single Judge of this Court. 14.As mentioned earlier, while answering toissue No.3 in para 8 of the trial court judgment dated31.3.1984, the trial court had held that so by birth, thefirst defendant and his brother late Sankaralingam Pillaigot right in the schedule property, which was in thehands of late Madhavan Pillai as ancestral property asper Ext.B1. It was also found that late Madhavan Pillaihad only 1/3 right. Since Smt. Meena, the secondappellant/second defendant was found to be theillegitimate child of late Sankaralingam Pillai by thetrial court, on his death, his 1/3 right in the scheduleproperty devolved on late Madhavan Pillai as his legalheir. So according to the trial court, at the time of deathof Madhavan Pillai, he had 2/3 share in the scheduleproperty and since Madhavan Pillai died subsequent tothe Hindu Succession Act, both the plaintiffs and thefirst defendant would get the said 2/3 share ofMadhavan Pillai in the schedule property in equalshares. So, according to the trial court, the property in A.F.A.No. 7 of 1999:-17-:question is an ancestral property of late Madhavan Pillaiand the first defendant is entitled to 1/3 share of theplaint schedule property. Though the trial court foundthat the property in question was an ancestral property, allotment was made in such a manner only on thefinding and footing that Smt. Meena is not a legitimatechild of the deceased Sankaralingam Pillai. Since theplaintiffs did not challenge the above finding or in theabsence of any cross objection in the appeal suitpreferred by the plaintiffs in A.S.No.273 of 1984, theabove finding of the trial court has become final and theplaintiffs are estopped from re-agitating the issue.15.It is equally important to note that the trialcourt during the trial, after the remand, confined to thepoints as discussed and directed by this Court at thetime of disposing of the appeal and therefore, there is noillegality committed by the trial court while disposing ofthe suit. But, on the other hand, this Court at the timeof disposing of A.S.No.121 of 1994 under the guise ofappeal went beyond the scope of the remand order and A.F.A.No. 7 of 1999:-18-:such exercise of the powers virtually barredby the principles of res judicata. The operative portionof the order of remand reads as follows:-“The court below shall dispose of thesuit having regard to the finding of thisCourt that Meena is the legitimatedaughter of Sankaralingam Pillai and thecourt shall re-allot the shares to theparties in accordance with law.”From the above order of remand, it is crystal clear thatthe task given to the trial court is to re-allot the sharesto the parties in the light of the finding of this court inappeal that Smt. Meena who is the second appellantherein/additional second defendant is the legitimatedaughter of late Sankaralingam Pillai. The other issuewhether the property is an ancestral property, hasalready been settled as per the finding of the trial courtas per its preliminary judgment and as per the finding ofthis Court in appeal at the first time. As stated earlier, the above findings of the trial court as well as this Courtbecame final since the respondents herein who are theplaintiffs did not challenge the above finding of this A.F.A.No. 7 of 1999:-19-:Court, in appeal or in any other forum and also due tothe failure of the plaintiffs in challenging the finding ofthe trial court by filing an appeal or by filing a crossobjection in A.S.No.273 of 1984. In the abovecircumstances, the trial court has rightly confined to thepoints for which the case was remanded and hence inappeal, this Court ought not have reopened the issueregarding the nature of the property and such aninterference will amount to indirect interference withthe remand order and such interference isimpermissible. Even otherwise, the same is barred bythe principles of res judicata.16.In this respect, it is relevant to refer to adecision of this Court in Saraswathy Amma v.Karthiyani Pillai (2008(1) KLT 784). In the saiddecision, this Court had held in para 4 as follows:-“Had the Appellate Court dismissed theappeal in toto the aggrieved party could havemaintained a Second Appeal. Of course that canonly be in accordance with the provisionscontained in S.100 of Civil Procedure Code. Theappellant in that Second Appeal is not entitled to A.F.A.No. 7 of 1999:-20-:agitate questions of fact. It is to be noted thatif the order of remand is in the nature of aninterlocutory order the parties are notaggrieved. But if the Appellate Court decidesany point and remands the case forreconsideration of other point, the aggrievedparty must challenge those findings by filing aMiscellaneous Appeal before this Court. If hefails to challenge the point decided by theAppellate Court on its merits he will beprecluded from challenging the correctness ofthat finding at a subsequent stage. So theaggrieved party is entitled to challenge allconcluded findings of the lower Appellate Courtin a remand order. But that challenge can onlybe in accordance with the provisions contained inS.100 of Civil Procedure Code. The party cannotchallenge a finding of fact on the ground thatthe appeal is against an order of remand. So anaggrieved party can challenge concluded findingsin an order of remand provided substantialquestions of law arise. If the contention of therespondents is accepted, the aggrieved partywill be left without any remedy. He will not be ina position to challenge the points decided by thelower Appellate Court by filing a C.M.A. He willnot be in a position to challenge the correctnessof that finding in a regular appeal to be filedagainst the decree passed after remand as thesame is barred by res judicata.”In another decision in Neelakanta Pillai v. MadhavaKurup (2007(2) KLT 340), a learned Judge of this Court A.F.A.No. 7 of 1999:-21-:had held that the appellate court had confirmed thefindings of the trial court that the plaintiffs are notentitled to get a permanent prohibitory injunction andthat they are not entitled to get a decree for fixation ofboundary. It was also held that the remand was madeonly for the limited purpose of claiming the relief ofrecovery of possession based on title and forincorporating a relief for declaration of title. It was alsoheld that the plaintiffs are, therefore, not entitled tocircumvent the remand order and get nullified thefindings therein under the guise of instituting a freshsuit after withdrawing from the suit. Rule 1(3) of OrderXXIII is not intended for such a course being adopted.On examining the facts and circumstances involved inthe present case in the light of the above decision, itcan be seen that the attempt of the plaintiffs, who werethe respondents herein, is to circumvent the findings inthe remand order indirectly without filing an appealagainst the earlier remand order. As stated earlier, thequestion regarding the nature of the property as to A.F.A.No. 7 of 1999:-22-:whether it is an ancestral property or not has becomefinal as per the preliminary judgment of the trial courtas well as the finding of this Court in A.S.No.273 of 1984and especially in the absence of any contra finding by ahigher forum or a superior court against the finding ofthe learned Single Judge and on failure on the part ofthe plaintiff to challenge the finding of the trial court orat least filing a cross objection when the defendantspreferred the appeal which culminated in the judgmentdated 17.3.1992 in A.S.No.273 of 1984. Thus, the finaljudgment of the trial court is fully justified as it isconfined to the point for which the case was remandedby this Court. In view of the bar contained underSection 10 of the Code of Civil Procedure, no suchsettled issue can be reopened under the guise of appealand the divergent finding arrived on by the learnedsingle Judge as per the judgment in A.S.No.121 of 1994is incorrect and unwarranted. Therefore, the judgmentof the learned Single Judge in A.S.No.121 of 1994 isliable to be set aside. A.F.A.No. 7 of 1999:-23-:17.It is also pertinent to note that whiledisposing of A.S.No.273 of 1984, His Lordship Mr.JusticeK.G. Balakrishnan (as he then was) found that thesecond appellant/second defendant is the legitimatedaughter of late Sankaralingam Pillai (Jr.) and therefore, the suit was bad for non joinder of parties as one of thesharers Smt. Meena is not impleaded in the case and thesuit was remanded for the limited purpose of impleadingher as necessary party to the suit and for re-allotting theshare to the parties in accordance with law. From thediscussions and observations contained in the abovejudgment and from the order of remand, it is crystalclear that this Court, while maintaining the finding ofthe trial court that the property in question was anancestral property, reiterated the same by stating asseen in para 6 of the judgment that “admittedly, plaintschedule property was the ancestral property of the family”.It appears that no argument was advanced before thisCourt while hearing the above appeal, to canvass that A.F.A.No. 7 of 1999:-24-:the property in question was not an ancestral property.As stated earlier, neither any appeal nor any crossobjection was filed by the plaintiffs against the finding ofthe trial court regarding the nature of the property. It isalso not in dispute that no further appeal was filed bythe plaintiffs/respondents herein against the abovefinding of this Court regarding the nature of theproperty as per judgment in A.S.No.273 of 1984. So, thefinding of both the trial court as well as the learnedsingle Judge that the property in question is an ancestralproperty has become final. It is, in the light of the abovediscussion and direction, the trial court passed thesubsequent judgment allotting shares to both theappellants and defendants and especially, on the legalfinding that the property in question is an ancestralproperty. Therefore, we are of the view that as long asthe finding of the trial court as well as this court inappeal regarding the nature of the property becamefinal and undisturbed, this Court committed a gravemistake in reopening the issue during the second round A.F.A.No. 7 of 1999:-25-:and in coming into a divergent conclusion that theproperty in question is not an ancestral property. Hence, we are of opinion that on that count alone, thejudgment of the learned single Judge dated 5.3.1998 inA.S.No.121 of 1984 is liable to be set aside. 18.In this juncture, it is pertinent to note that thequestions as to whether the second appellant/seconddefendant is entitled to any share and what is the extentof such share, if any, depend upon two answers to thequestions as to whether the property in question is anancestral property and whether the secondappellant/additional second defendant is the legitimatedaughter of the deceased Sankaralingam Pillai. If theanswers are positive, certainly Smt. Meena is entitled toget 5/12 share of the plaint schedule property. 19.In the light of our discussion and observationmade above, we have already found that the finding ofthe learned single Judge as per the impugned judgmentthat the property in question is not an ancestral propertyis factually and legally incorrect and in that connection, A.F.A.No. 7 of 1999:-26-:we have to uphold the finding arrived on by the trialcourt as well as this Court by judgment dated 17.3.1992in A.S.No.273 of 1984. With respect to the questionregarding the paternity and legitimacy of the secondappellant/second defendant, that finding is also notdisturbed by the impugned judgment. Therefore, theonly question remained to be answered, in case we arereopening the issue, is as to whether the property inquestion is an ancestral property. As a matter of factand settled position of law, the learned Judge was notcorrect in reopening the issue which became final as perthe earlier judgment of this Court and as per thejudgment of the trial court and especially when there isno challenge against the judgment of the learned singleJudge in A.S.No.273 of 1984.20.Still then, since the learned counselappearing for the respondents has strenuously arguedthat the property in question is not an ancestral propertyand therefore, the plaintiffs are entitled to ½ share anddefendants 1 and 2 are entitled to get ¼ share each, we A.F.A.No. 7 of 1999:-27-:are inclined to consider the above question for thepurpose of completion. 21.Mr.Raghunath, learned counsel appearing forthe respondents submits that as per the recitalcontained in Ext.B1, it can be seen that the property inquestion is a stridhana property belonging to KolammaAmmal who is the mother of late Madhavan Pillai. Thus, strongly supporting the impugned judgment, the learnedcounsel submits that it is not an ancestral property inthe hands of late Madhavan Pillai and therefore, thefinding of the trial court has to be held as incorrect andillegal as done by the learned single Judge. In supportof the above submission, the learned counsel placedreliance on a decision of the Privy Council in SellamaniAmmal v. Thillai Ammal (AIR (33) 1946 Privy Council185) wherein it was held that the separate propertyinherited from mother's side is separate property andthere was no blending with joint family property andtestamentary disposition was valid. The learned counselalso placed reliance on the decision reported in A.F.A.No. 7 of 1999:-28-:Narinjan Das v. Krishan Lal (AIR 1941 Lahore 31). Inthe above decision, it was held that absolute devise tothe widow would not be avoided by the adoption. It wasalso held that the property was self-acquired in thehands of the widow as it came to her by will from herhusband. It was also held that similarly, the propertywas self-acquired in the hands of her adopted son as itcame to her by will by her adoptive mother. On thestrength of the decision reported in Vijaya CollegeTrust v. Kumta Co-op. Arecanut Sales Society Ltd.(AIR 1995 Karnataka 35), Mr.Raghunath, the learnedcounsel appearing for the respondents further submitsthat in order to come with the definition of ancestralproperty, the property must have been inherited by amale Hindu from his father's father etc. and propertyinherited from female cannot be treated as an ancestralproperty. On the death of mother, widow the propertyis being devolved upon the sons and therefore, the samecannot be treated as an ancestral property. A.F.A.No. 7 of 1999:-29-:22.Per contra, Mr.R.D.Shenoi, the learned SeniorCounsel submits that the very recital contained inExt.B1 partition deed to which the late Madhavan Pillaiis a party shows that the property was acquired by thefather of late Madhavan Pillai, late Sankaralingam Pillai(Senior) benami in the name of his wife late KolammaAmmal and he himself had settled the mode ofdevolution of the property after his death. It is alsosubmitted that late Madhavan Pillai and other childrenof late Sankaralingam Pillai (senior) treated the propertyas ancestral only and hence, the daughters of lateMadhavan Pillai cannot now plead to the contrary. Thelearned counsel further argued that though the propertywas acquired in the name of Kolamma Ammal by herhusband with his own funds, there are no other facts ortransaction to show that the acquisition was intended forher exclusive benefit only. Thus, according to thecounsel, in such circumstances it has to be held that it isthe property of late Sankaralingam Pillai (Sr.) alone andit is an ancestral property in the hands of late Madhavan A.F.A.No. 7 of 1999:-30-:Pillai as per the partition deed Ext.B1. In support of theabove plea, the learned counsel very much placedreliance on the decision of the Privy Council in SuraLakshmiah Chetty and others v. KothandaramaPillai (1925) I.A.286 (48 Madras 605). It is also arguedby the learned counsel that the learned Single Judgefailed to note that there is no claim from the daughtersof Kolamma Ammal who are otherwise entitled to getshare in the property, and therefore, it has to be treatedas the property of late Sankaralingam Pillai (Sr.) andhence the property was dealt with by his sons alone asancestral property only. The learned counsel furthersubmits that the learned Single Judge was not correct inarriving at a conclusion that the property is a stridhanaproperty and the same is unfounded, with reference tothe pleadings as well as the reference to the evidenceavailable on record. It is the definite case of the learnedcounsel that the plaintiffs never claimed the property asstridhana property of their grand mother. On thestrength of Ext.B1 partition deed, the counsel submits A.F.A.No. 7 of 1999:-31-:that at the most, what can be seen is that lateSankaralingam Pillai (Sr.) had created only life estate infavour of his wife Kolamma Ammal and nothing more.On a close perusal of Ext.B1 deed, it can be seen thatthe property in question is an ancestral property in thehands of late Madhavan Pillai which he inherited fromhis father late Sankaralingam Pillai (Sr.). Nothing isdiscernible from Ext.B1 to show as to how Smt. KolammaAmmal got the property to consider it as a stridhanaproperty of Kolamma Ammal. 23. Page 530 of Raghavacharia's Hindu Law 7thEdition contained Chapter XIII, Stridhana and Section468 deals with definition of Stridhana and Section 469deals with sources of acquisition. Section 472 deals withgifts subsequent to marriage which runs as follows:-“472. Gifts subsequent to marriage.-Properties given to a woman subsequent toher marriage might have been given to hereither by her husband or by others. When ahusband gives properties to his wife, eitherunder a gift inter vivos or by will, it is aquestion of construction of the deed of giftor will, whether the husband intended her to A.F.A.No. 7 of 1999:-32-:take the property absolutely as herstridhana property or only for a qualifiedinterest. The later judicial view seems to bethat in the absence of words in the deedindicating the contrary intention, thepresumption is that the donee takes theproperty as an absolute owner and this viewseems to be more in consonance with thepresent-day sentiment of the Hindus which, owing, to the influence of westerncivilisation and culture, abhors anydistinction being created in the legal rightsof parties, merely because of sex. Propertiesgiven or bequeathed to a woman by herrelations or strangers during coverture orwidowhood are her Stridhana except thatunder the Dayabhaga and the MithilaSchools, property given by a stranger duringcoverture is subject to her husband'sdominion and becomes her absolute propertyonly after his death.” (underline supplied)From the above underlined portion of the above quotedpassage, it can be seen that there must be sufficientevidence either documentary or oral to show thatwhether the husband had intended the wife to take theproperty absolutely as her stridhana property or only fora qualified interest. In the present case, there is noevidence to show that absolute right was given to A.F.A.No. 7 of 1999:-33-:Kolamma Ammal. But Ext.B1 would show that whatSankaralingam Pillai(Sr.) intended was to give a lifeestate to his wife Kolamma Ammal. It is also clear as tohow the property would devolve upon his son on hisdeath. It is also vivid that no share was intended to givethe daughters. The facts and circumstances also showthat the daughters of late Sankaralingam Pillai(Sr.) havenever demanded for share in the above property. Theadmitted case of the plaintiffs is also to the effect thatthe property in question belongs to late Madhavan Pillaiand therefore, the real and deserving claimants are onlyplaintiffs and first appellant who is the first defendant inthe suit. 24. The 16th Edition of Hindu Law by Mulla isalso an authoritative text on the subject. Chapter X ofthe same deals with women's property -- part I aboutStridhana. In the above text, Section 113 deals withstridhana, according to the Smritis, that is, the sacredwritings of Rishis or sages of antiquity. Manuenumerates six kinds of stridhana which reads as A.F.A.No. 7 of 1999:-34-:follows:-“1.Gifts made before the nuptial fire, explained by Katyayana to mean gifts made atthe time of marriage before the fire which isthe witness of the nuptial (adhyagni).2. Gifts made at the bridal procession, that is, says Katyayana, while the bride is being ledfrom the residence of her parents to that ofher husband (adhyavahanika). Reference may bemade to the undermentioned case (Vinod Kumarv. State of Punjab [(1982) 84 Punj.L.R.337 (F.B.)(dowry articles and traditional presents given atthe wedding)].3.Gifts made in token of love, that is saysKatyayana, those made though affection by herfather-in-law and mother-in-law (pritidatta),and those made at the time of her makingobeisance at the feet of elders (padavandanika)4. Gifts made by father.5. Gifts made by the mother.6. Gifts made by the brother (Manu, ix, 194)” In page 163 of Mulla's Hindu Law under Section 125deals with sources of woman's property which reads asfollows:-“125. Sources of woman's property.-- A Hindufemale may acquire property from diverse source. Several descriptions of property that may belawfully acquired by a Hindu female are:(1) Gifts and bequests from relations[ § 126].(2) Gifts and bequests from strangers [§ 127].(3) Property obtained on partition [ § 128]. A.F.A.No. 7 of 1999:-35-:(4) Property given in lieu of maintenance [ § 129].(5) Property acquired by inheritance [§ 130].(6) Property acquired by mechanical arts [ § 131].(7) Property obtained by compromise [ § 132].(8) Property acquired by adverse possession [§ 133].(9) Property purchased with stridhana or withsavings of income of stridhana [ § 134].(10) Property acquired from sources other thanthose mentioned above [ § 135]. Bequests stand on the same footing as gifts (Judoo Nath Bussunt Coomar (1873) 19 W.R.264)”Among the above lists, item No.9 is shown as propertypurchased with stridhana or with savings of stridhana.In the light of the terms contained in the above quotedpassage from the Mulla's Hindu Law, it has to beestablished by the respondents-plaintiffs that theproperty in question was purchased with the stridhanain order to come into a different conclusion that theproperty in question is not an ancestral property. 25. The learned Single Judge casually observedthat the property belonged to Kolamma Ammal and hermother Kali Ammal and that they acquired the propertywith the funds given by late Sankaralingam Pillai (Sr.).But, the learned Single Judge did not discuss and enter A.F.A.No. 7 of 1999:-36-:any finding regarding the source of fund before holdingthat the property belongs to Kolamma Ammal and hermother Kali Ammal. While making the aboveobservation, the learned single Judge failed to note therecital contained in Ext.B1 that the property belongs tothe father of parties to Ext.B1. If that be so, theproperty is an ancestral property at the hands of lateMadhavan Pillai and to take a different view, the courthas to come into a definite finding as to how KolammaAmmal and her mother Kali Ammal got the fund so as toname them as owners of the properties. The learnedJudge stated that “it is therefore clear that the propertiesbelonged to late Madhavan Pillai's mother Kolamma Ammal. It wasacquired in her name, may be with the funds provided by herhusband” (emphasis supplied). The above underlinedportion of the observation of the learned Judge assumesmuch importance. It is crystal clear from the abovewords that the property was acquired by using the selfacquired funds of the late Sankaralingam Pillai (Sr.) and A.F.A.No. 7 of 1999:-37-:therefore, late Madhavan Pillai has got right as anancestral property. There is no evidence to show thatthe property in question was acquired by using thestridhana fund of late Kolamma Ammal. The specificrecital contained in Ext.B1 regarding the right ofKolamma Ammal is only life estate which would furtherconfirm that she has no absolute right over the propertyand the modes of devolution of the property among thesons are also finding a place in Ext.B1 and that is alsoanother factor unerringly and conclusively establishesthat it is an ancestral property. The daughters of lateSankaralingam Pillai have not made parties to Ext.B1and they did not raise any claim with respect to theproperty of late Sankaralingam Pillai (Senior) and henceit can safely be concluded that the property in questionat the hands of late Madhavan Pillai is an ancestralproperty.26.In Sura Lakshmiah Chetty's case (citedsupra), on appeal from the High Court at Madras, thePrivy Council held that “when it is alleged that a purchase of A.F.A.No. 7 of 1999:-38-:property in India by an Indian out of his own money, but in thename of his wife, was made in pursuance of an ante-nuptialagreement, and that consequently it is not to be regarded as abenami transaction, the alleged anti-nuptial agreement, if oral, must be proved by the clearest and most satisfactory evidence ofcredible witnesses; it would be unwise to act upon oral evidence, unless there was contemporaneous written evidence tocorroborate it”. In the present case, the proved facts andcircumstances mentioned above are sufficient to holdthat the property in question is an ancestral propertyand there is absolutely no evidence to show that theproperty was purchased by using the stridhana propertyof late Kolamma Ammal. Ext.B1 contained no indicationor recital to that effect. No other documentary evidencewas adduced by the plaintiffs to establish such claim. Absolutely there is no oral evidence in this regard.27.We have no doubt about the position of lawsettled through the decisions namely, SellamaniAmmal v. Thillai Ammal (AIR (33) 1946 Privy Council A.F.A.No. 7 of 1999:-39-:185), Narinjan Das v. Krishan Lal (AIR 1941 Lahore31) and The Vijaya College Trust v. The Kumta Co-operative Arecanut Sales Society Ltd. (AIR 1995Karnataka 35), relied on by Mr.Raghunath, learnedcounsel for the respondents. In the absence ofnecessary pleadings and concrete evidence to show thatthe property in question belongs to the grandmother ofparties, namely Kolamma Ammal as her stridhanaproperty, the above contentions fail. Therefore, onapplying the principles laid down by the Privy Counciland in the light of the authorities mentioned above, itcan be seen that there is no specific pleading orevidence from the side of the plaintiffs to show that theproperty in question is purchased by using the stridhanaproperty of late Kolamma Ammal. But, on the otherhand, all the available evidence including thedocumentary evidence and the conduct of the partiesunerringly established that the property in question isan ancestral property in the hands of late MadhavanPillai. A.F.A.No. 7 of 1999:-40-:28.The observation and finding arrived on by thelearned single Judge in para 9 appears to be not correct. Under the above circumstances, the finding of thelearned single Judge is absolutely unfounded and not atall warranted and hence the judgment of the learnedsingle Judge is liable to be set aside.29.In the result, we allow this appeal and thejudgment dated 5.3.1998 in A.S.No.121 of 1994 is setaside, restoring the finding of the trial court and wefurther direct the trial court to dispose of O.S.No.316 of1982 in accordance with law and in the light of therevised preliminary judgment and decree passed by it asper the judgment dated 30.1.1993 in O.S.No.316 of1982. Parties are directed to bear their respective costs. P.R.RAMAN, Judge V.K.MOHANAN, JudgeMBS/ A.F.A.No. 7 of 1999:-41-:P.R.RAMAN & V.K.MOHANAN, JJ.-------------------------------------------- A.F.A.NO. 7 OF 1999 ------------------------------------ J U D G M E N TDATED: 25-03-2008 A.F.A.No. 7 of 1999:-42-: