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TMI Blog2022 (2) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants, they cannot ask such a relief as against the first defendant, who is having a title. Therefore, in all, the evidence let in by the plaintiffs have not shown that the property has been purchased by utilising the funds realised from the ancestral property of the plaintiffs and defendants. Since the title and possession have not been proved by the plaintiffs, they are not entitled to the relief of injunction. The Courts below had also traversed in the same line and concurrently held that the plaintiffs have not proved their case. 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. 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 and without amending the pleading in respect to the death of the first defendant and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ataperumal's son K.V. Sathiyanarayanan [2nd plaintiff], K.J. Bhakthavatchalam [3rd plaintiff] and defendants 1 and 3 have got equal shares in the suit property along with the other joint family properties. After made purchase, the first plaintiff alone, is maintaining the property on behalf of other plaintiffs. At the instigation of the third defendant, the first defendant is attempting to alienate the suit property to the second defendant. (iii) The first defendant herein has given a false notice to one Sarangan calling upon him to hand over the possession of the suit property. The said Sarangan is the friend of the first plaintiff. In the said notice, it is submitted that the first defendant is not in possession of the suit property. Now, the first defendant is attempting to alienate the suit property by denying the joint family nature of the suit property, the 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 statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 pronounced on all issues whether the Courts below are correct in not answering all the issues framed in the suit? (ii) Whether the non-consideration of the Will set up by the defendants is fatal to the case when the 1st defendant had died pending suit? (iii) When the 1st defendant has died pending suit and the suit properties will devolve on the legal heirs whether the Will pleaded by the defendants have to be proved or not for claiming exclusive right? 10. Heard Ms. R. Rajashama Gayathri, learned counsel for Mr. K. Govi Ganesan appearing for the appellants and Mr. N. Nagusah, learned counsel appearing for the second respondent and also perused the materials available on record. 11. One K.J. Damodaran, who is the father of the first plaintiff (Dilli Babu); one K.J. Venkataperumal, who is the father of the second plaintiff (K.V. Sathyanarayanan); the third plaintiff K.J. Bhakthavatchalam; and the third defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate. 16. Accordingly, applying the principle set out in the above referred judgment, here, it is a case, the plaintiffs have to show that, there was an adequate 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 names of the female members are their own, unless ..... X X X X Extracts X X X X X X X X Extracts X X X X
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