This appeal suit sought to set aside a trial court decree in a partition suit involving ancestral properties. The High Court distinguished a cited precedent, observing that the marriage of the daughter predicated her inability to claim coparcenary status under the 2005 Amendment, and upheld the trial court's decision.
No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
A.S.No.466 of 2013
1.Saraswathi (Died) ...Appellant / 3rd Defendant
2.Ganesaa Murthi Kri
3.K.Sumathi
4.K.Padmavathy ...Appellants
(Appellants 2 to 4 brought on record
as LRs of the deceased 1st appellant
vide Court order dated 12.03.2020
made in CMP No.4568 & 4570 of
2020 in A.S.No.466 of 2013.)
Vs
1.S.Seerangan ...Respondent / Plaintiff
2.C.Gurusamy ...Respondent / 1st Defendant
3.S.Muthusamy ...Respondent / 2nd Defendant
PRAYER : Appeal Suit filed under Section 96 of CPC to set aside
the Judgment and Decree 24.01.2013 made in O.S.No.233 of 2011 on
the file of the Principal District and Sessions Court, Erode.
For Appellants :Mr.V.Raghupathi
For R1 :Mr.M.Arun
For R2 & R3 :Mr.A.Sundaravadhanan
JUDGMENT
This Appeal suit is filed against the Judgment and Decree
dated 24.01.2013 made in O.S.No.233 of 2011 on the file of the
Principal District and Sessions Court, Erode.
2. For the sake of convenience, the parties are referred
to as per their ranking in the trial Court.
3. The brief case of the plaintiff is that the defendants
1 and 2 are the sons and the 3rd defendant is the daughter of one
Chennimalai Gounder. The suit properties are ancestral property.
Therefore, the plaintiff called upon the defendants for an
amicable partition by a legal notice dated 01.10.2001. The
third defendant issued a reply notice stating that the suit
properties have been already partitioned orally and she is
entitled for 1/4th share in the suit property. The plaintiff and
the defendants 1 and 2 along with the 3rd defendant received a
compensation before the National Highway Authorities equally.
Further, the plaintiff is entitled to have 1/16th share in the
suit property. No oral partition took place between the
parties. The third defendant got married prior to 1989 and only
after her marriage their father died on 03.12.2000. Therefore,
she is not entitled to claim any share as per the State
Amendment Act as well as Central Amendment Act in the Hindu
Succession Act. Hence, the suit for partition.
4. The defendants 1 and 2 filed a written statement and
accepting the case of the plaintiff and prayed for the allotment
as per the plaint.
5. The third defendant filed a separate written statement
stating that item Nos.5, 10 and 11 of the suit properties are
ancestral properties. Those properties were purchased out of
self earnings of their father and grand father. Therefore, the
third defendant is equally entitled for 1/4th share in the suit
properties. As per the oral partition among them, the plaintiff
and the defendants have received 1/4th share of compensation,
which was given by the National Highway Authorities. Therefore,
she is entitled for 1/4th share in the suit property.
6. On hearing the rival pleadings, the learned trial
Judge framed the following issues for determination of the
suit :-
1. Whether the plaintiff is entitled for partition and separate possession as prayed for ?
2. Whether the items 5, 10 and 11 are purchased from out of the joint family nucleus ?
3. Whether the 3rd defendant is not entitled to 1/4th share as per the oral partition between them ?
4. To what relief ?
7. On the side of the plaintiff, he examined P.W.1 and
marked Exs.A1 to A32. On the side of the defendants, they
examined D.Ws.1 to 3 and marked Exs.B1 and B2. On considering
the oral and documentary evidences adduced by the respective
parties and the submissions made by the learned counsel, the
Court below decreed the suit as prayed for and allotted 5/16th
share to the plaintiff and the defendants 1 and 2 are allotted
5/16th share each. The third defendant is entitled to have 1/16th
share in the suit property. Aggrieved by the same, the third
defendant preferred the present Appeal Suit.
8. The learned counsel for the appellants would submit
that admittedly, some of the suit properties were acquired by the National Highway Authorities and paid compensation equally to all the plaintiff and the defendants nearly 1/4th share each. Therefore, she is entitled to have 1/4th share in the suit property instead of 1/16th share. He further submitted that there was no blending of ancestral properties and also for joint family properties. When it being so, the Court below ought to have concluded that the suit properties are self earning properties and the third defendant is also entitled to equal share. In this regard, the learned counsel for the appellant relied upon the judgment reported in 2020 (6) CTC 822 in the case of K.Subbulakshmi @ Pappayee Vs.C.V.Ramasamy Pillai (Died), in which, this Court held as follows :
“21. The Hon'ble Supreme Court of India held
that the law on the aspect of blending is well
settled that the property separate or self-acquired
of a member of a Joint Hindu Family may be impressed
with the character of Joint Family property if it is
voluntarily thrown by the owner into the common
stock with the intention of abandoning his separate
claim therein ; but to establish that abandonment a
clear intention to waive separate right must be
established. Therefore, having appreciated evidences
on record, this Court concluded the plea that the
“A” schedule property is the Joint Family property
and as such the plaintiff is entitled for her
share.”
9. Heard, Mr.V.Raghupathi, the learned counsel appearing
for the appellants and Mr.M.Arun, learned counsel appearing for
the 1st respondent and Mr.A.Sundaravadhanan, learned counsel
appearing for the 2nd respondent.
10. The suit is filed for partition by the plaintiff
claiming 1/16th share in the suit property. Admittedly, the suit
properties are ancestral properties. The plaintiff and the
defendants 1 and 2 are the brothers and the third defendant is
the daughter. The third defendant got married prior to 1989.
After her marriage, prior to the amendment, her father died on
30.12.2000. The amendment Act 39/2005 in the Hindu Succession
Act came into force and even before the amendment, the third
defendant marriage was solemnized. Therefore, as per the
Amendment Act 1/90 in the Hindu Succession Act cannot be
construed as co-parcener. Therefore, she is entitled only from
the share of her father. The Trial Court rightly decreed the
suit and accordingly allotted 5/16th share in favour of the
plaintiff and the defendants 1 and 2. The third defendant was
allotted 1/16th share in the suit property. Therefore, this Court
finds no infirmity or illegality in the order passed by the
Court below. Since, the property is an ancestral property, the
Judgment cited by the learned counsel for the appellants is not
helpful to the case on hand.
11. In the result, the Appeal Suit is dismissed. No
order as to costs.
Assistant Registrar
// True Copy //
Sub Assistant Registrar
lpp
To
1.The Principal District and Sessions Judge, Erode.2.The Section Officer, V.R. Section, High Court, Madras.+1cc to Mr.V.Raghupathi, Advocate SR.No.31753
A.S.No.466 of 2013
RLD(CO)
RVM(26/10/2021)
3 issues framed by the court
Whether the third defendant is entitled to a 1/4th share in ancestral properties as a self-acquired property or only as a coparcener under the Hindu Succession Act Amendment Act 2005?
Whether the suit properties are ancestral or self-acquired given the existence of joint compensation received from National Highway Authorities?
Whether the trial court's allotment of 1/16th share to the daughter is legally sound despite her marriage prior to the 2005 Amendment?
Colour shows how this judgement treated each authority
K.Subbulakshmi @ Pappayee Vs.C.V.Ramasamy Pillai (Died)Distinguished¶30
2020 (6) CTC 822
2 provisions across 2 enactments
Saraswathi (Died) represented by Ganesaa Murthi Kri and K.Sumathi
K.Padmavathy
S.Seerangan
C.Gurusamy
S.Muthusamy
G.K.ILANTHIRAIYAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court