Property standing in the mother's name is her property unless purchased in fiduciary capacity on joint family funds = Any property standing in the name of the woman, which was acquired under Section 14(1) of the Hindu Succession Act (for short, ‘the Act’) becomes her absolute property except in cases where the purchase was made by the joint family funds in a fiduciary capacity with certain conditions. - in Gangamma etc., v. G.Nagarathnamma & Others[1], wherein it was held that when the property was standing in the name of mother-in-law, who has no source of income, it cannot be considered as a joint family property and by operation of Section 14(1) of the Act she becomes the full owner of the property. Therefore, even if the money is given by the 1st defendant or the 2nd defendant, the deceased becomes absolute owner of the property and since she died intestate, there can be no objection for the judgment and decree passed by the Court below. Therefore there are no merits in the appeal.

  

AS 376 / 2013

ASSR 2785 / 2013

PETITIONER RESPONDENT B.VIDYA SAGAR   VS SMT. A.SHAKUNTHALA AND 4 OTHERS PET.ADV. : BHAGESHWAR RAO RESP.ADV. : SRINIVAS EMANI SUBJECT: PARTITION DISTRICT:  RANGA REDDY

published in http://164.100.12.10/hcorders/orders/2013/as/as_376_2013.html

THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO

 

APPEAL SUIT No.376 OF 2013

JUDGMENT:

The 2^nd defendant in O.S.No.29 of 2010 on the file of the Court of the VIII Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar, is the appellant herein.   

2.       The suit was one filed for partition of the property alleging that the plaintiff and defendants 2 to 5 are the children of the 1^stdefendant and also deceased B.Shiva Lakshmi.   The schedule property is vacant land, which was purchased by the 1^st defendant in the name of his wife and a house was also constructed.   Smt.B.Shiva Lakshmi died intestate on 23.05.2005.   Therefore, the plaintiff and D2  to D5 are entitled to 1/5^th share each.  Defendants 1, 3 to 5 have supported the case of the plaintiff holding that the property belongs to the deceased B.Shiva Lakshmi and liable for partition, whereas the 2^nd defendant, who is one of the sons, has taken a stand that the property was purchased by him with his own funds and also the house was constructed in the name of his mother out of love and affection.   Consequently, after the death of the mother, he has become entitled to the property and therefore, the plaintiff or other defendants have no right or interest in the property.  Consequently, the suit is liable to be dismissed.

3.       On the basis of the above pleadings, necessary issues have been framed for trial.  After considering the evidence on record, the Court below has passed a decree for partition.  Aggrieved by the said judgment, the present appeal is filed.

4.       The points that arise for consideration are:

1)                 Whether the suit property is the separate property of the appellant?

2)                 Whether the decree for partition granted by the Court below is legal and sustainable?

5.       POINTS:

          Before considering the contentions, it is to be mentioned that the 2^nd defendant has taken a plea that the property, which was the subject matter of the suit, is his self-acquired property and was purchased with his own earnings from medical business.   However, he did not go into box nor any documents were filed to prove the same.  

6.       The learned counsel for the appellant contends that the 2^nd defendant could not be examined for the reason that he met with an accident and in the meantime the suit has been disposed of.

7.       Assuming to be that the 2^nd defendant could not appear before the Court for any valid reason, still this Court has to consider whether the plea set up by the 2^nd defendant is tenable.   In fact it is the evidence of the 1^st defendant who claims that the property was purchased by him and he has constructed the house.    It is not as though that the 1^st defendant has no employment and he was a Teacher and must be earning some salary when compared to the medical business claimed by the appellant.   Even otherwise the allegations in the written statement clearly goes to show that the property was purchased out of love and affection in the name of the mother.   Therefore, it is not a case where the property was kept nominally in the name of the mother without intending to recognize the title of the property.   In this case, there is no question of any fiduciary relationship nor any purchase jointly.   It is a clear case where the property was purchased in the name of the mother and the sale was intended to be acted upon.   In fact it is of no relevancy as to whether the mother has got any source of income or not.  Any property standing in the name of the woman, which was acquired under Section 14(1) of the Hindu Succession Act (for short, ‘the Act’) becomes her absolute property except in cases where the purchase was made by the joint family funds in a fiduciary capacity with certain conditions.    In fact it is not a case of such nature.   It is a case where the 2^nd defendant claims that the right of his mother is intended to be acted upon out of love and affection.  Therefore, she becomes the absolute owner of the property even his claim for total contribution is to be accepted.  

8.       In this connection, it is useful to refer to a decision reported in Gangamma etc., v. G.Nagarathnamma & Others[1], wherein it was held that when the property was standing in the name of mother-in-law, who has no source of income, it cannot be considered as a joint family property and by operation of Section 14(1) of the Act she becomes the full owner of the property.  Therefore, even if the money is given by the 1^st defendant or the 2^nd defendant, the deceased becomes absolute owner of the property and since she died intestate, there can be no objection for the judgment and decree passed by the Court below.  Therefore there are no merits in the appeal.

9.       Accordingly, the Appeal Suit is dismissed.  No costs.  Miscellaneous Petitions, if any, pending in this appeal shall stand closed.

____________________________________

JUSTICE N.R.L. NAGESWARA RAO

Date:10.07.2013

KNL/INL

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[1] AIR 2009 SC 2561