Vangili Gounder vs Kuppayee
2021 Latest Caselaw 1785 Mad

                                                                            S.A.(MD).No.139 of 2015


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED:27.01.2021

                                                     CORAM:

                            THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

                                           S.A.(MD).No.139 of 2015 and
                                              M.P(MD)Nos.1 of 2015

                      1.Vangili Gounder
                      2.Arumugam                                              ... Appellants

                                                      Vs.
                      1.Kuppayee
                      2.K.Rajalingam
                      3.K.Rathinam                                            ...Respondents
                      PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                      Code, against judgment and decree dated 25.08.2014 in A.S.No.9 of
                      2014, on the file of the Principal District Judge, Karur, confirming the
                      judgment and decree dated 11.12.2013 in O.S.No.477 of 2010, on the file
                      of Principal Subordinate Judge, Karur.
                                  For Appellants            : Mr.K.Govindarajan
                                  For R1                    : Mrs.N.Krishnaveni
                                  For R2 & R3               : Mr.M.P.Senthil

                                                     JUDGMENT

The defendants 1 & 2 in O.S.No.477 of 2010 are the

appellants. The Suit was laid by the first respondent herein, seeking

partition and separate possession of her 1/4th share, contending that the

http://www.judis.nic.in S.A.(MD).No.139 of 2015

property is the ancestral property of one Subbaraya Gounder @ Subba

Gounder, who died on 27.02.1989, leaving behind the plaintiff and the

first defendant who are the daughter and son respectively. The second

defendant is the son of the first defendant, the respondents 3 & 4 are the

purchasers of a portion of the property from the defendants 1 & 2.

2.While admitting the relationship, the defendants would

resist the suit contending that there was a oral partition between

Subbaraya Gounder @ Subba Gounder and the first defendant in the year

1985, wherein, the first defendant has paid a sum of Rs.10,000/- to

Subbaraya Gounder @ Subba Gounder and the entire property was

allotted to him. Subsequent partition between the first defendant and the

second defendant in the year 1991 was also sought to be projected as

evidence of the oral partition said to have been taken place in the year

1985.

3.At trial, the plaintiff was examined as PW1 and Exs.A1 to

A9 were marked. On the side of the defendants, first defendant was

examined as DW 1 and Marappan, Saritha and Rajalingam were

http://www.judis.nic.in S.A.(MD).No.139 of 2015

examined as DWs 2,3 and 4 respectively. Exs.B.1 to 6 were marked.

Ex.X1 was marked as Court document.

4.The learned trial judge, upon consideration of the evidence

on record, concluded that the defendants have not established the alleged

oral partition said to have taken place in the year 1985. In view of the

introduction of the Hindu Succession Amendment Act 2005, the learned

trial judge has concluded that the plaintiff would be entitled to 1/2 share

against her claim of 1/4th share.

5.Aggrieved, the defendants preferred an appeal in A.S.No.9

of 2014. The lower Appellate Court, concurred with the findings of the

trial Court and dismissed the Appeal. Hence, the Second Appeal.

6.At the time of admission, the following questions of law

were framed.

a) Whether the Courts below are correct in law in allowing the suit for partition and separate possession without considering Ex.A3 and Ex.A4?

http://www.judis.nic.in S.A.(MD).No.139 of 2015

b) Whether the Courts below are right in law in coming to the conclusion that the plaintiff is entitled to partition when the plaintiff had never in possession and enjoyment of the suit properties along with the appellants?

c) Whether the Courts below right in not considering Ex.X1 mortgage deed?

d) Whether in law the courts below are right in now considering the open, ininterrupted, continuous, without any interference of the possession and enjoyment of the suit properties by the appellant?

e) Whether the courts below right in holding that the plaintiff is in joint possession and enjoyment of the suit properties and come to a conclusion that the suit properties are properly valued and correct court fees is paid?

f) Whether the courts below right in applying the Hindu Succession (Amendment Act 39 of 2005 to the facts of the case especially there was a partition in the family long back?

http://www.judis.nic.in S.A.(MD).No.139 of 2015

7.I have heard Mr. K.Govindarajan, learned counsel for the

appellant and Mrs.N.Krishnaveni, the learned Senior Counsel for the first

respondent and Mr.M.P.Senthil, the learned counsel for the respondents 2

& 3, namely the purchasers.

8.Elaborating the questions of law, Mr.K.Govindarajan, the

learned counsel for the appellant would submit that the Courts below

were not right in concluding that the oral partition has not been

established. Pointing out Ex.A3, Partition Deed dated 12.02.1991

between the first defendant and the second defendant,

Mr. K.Govindarajan, would submit that the trial Court was not right in

disbelieving the oral partition pleaded by the plaintiff. Relying heavily on

the Partition Deed dated 12.02.1991, between the first defendant and the

second defendant, Mr.K.Govindarajan would contend that the fact that

the father and son had entered into a partition would probabilise the oral

partition said to have taken place in the year 1985.

http://www.judis.nic.in S.A.(MD).No.139 of 2015

9.Contending contra, Mrs.N.Krishnaveni, the learned Senior

Counsel appearing for the first respondent would submit that the present

situation is squarely covered by the decision of the Honourable Supreme

court in Vineet Sharma Vs. Rakesh Sharma & others, reported in 2020

5 LW Page 300, wherein, the Honourable Supreme Court has pointed out

that the benefits of the amendment Act would accrue to the daughters,

immaterial of the date of death of the father. Therefore, the plaintiff

would become co-parcener along with her father on the date of enactment

of 2005 Act. She would also draw my attention to the law laid down by

the Honourable Supreme Court with reference to partitions. According to

her, requirements of law, as set out in order to conclude that there was a

oral partition, have not been proved in the case on hand. Relying upon

the absence of even a reference to the alleged oral partition in Ex.A3

dated 12.02.1991, the learned Senior Counsel would submit that the

Courts below were right in disbelieving the oral partition.

10. Mr.M.P.Senthil, the learned counsel appearing for the

respondents 2 & 3 would submit that being the purchasers of a portion of

the property, they can claim equity at the time of final Decree and he

http://www.judis.nic.in S.A.(MD).No.139 of 2015

would also point out that the trial court has preserved such liberty to

them.

11. I have heard the rival submissions. All the questions of

law framed in this Second Appeal have lost significance, in the light of

the subsequent Judgment of the Honourable Supreme Court in Vineet

Sharma Vs. Rakesh Sharma & others, reported in 2020 5 LW Page 300

referred to supra. The Honourable Supreme Court has clearly pointed out

that immaterial of the date of death of the father, the daughter would

become co-parecener and she would be entitled to equal share. In order

to deny her the right, it should be shown that there was a partition by

registered instument or a partition, which has been recognised by the

revenue authorities or a partition that is referred to in a subsequent public

document. None of these three requirements have been satisfied by the

defendants 1 & 2 in the case on hand. The partition Deed Ex.A3 does not

even refer to the nature of the property and the so called partition that

took place in the year 1985. The revenue records have not been mutated

and they continued in the name of Subbaraya Gounder @ Subba

Gounder, the father of the first defendant. Therefore, the appellant cannot

http://www.judis.nic.in S.A.(MD).No.139 of 2015

be heard to contend that the partition of the year 1985 must be

recognised.

12.In the light of the above, the questions of law in the

Second Appeal are answered against the appellant and the appeal is

dismissed. The right reserved by the trial Court to the defendants 3 & 4

to claim equity in the final decree proceedings is preserved. No costs.

Consequently, the connected civil miscellaneous petition is closed.

                                                                                     27.01.2021

                      Index         : Yes/No
                      Internet      : Yes/No
                      vrn

                      To

                      1.The Principal District Judge, Karur

2.The Principal Subordinate Judge, Karur.

3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.

http://www.judis.nic.in S.A.(MD).No.139 of 2015

R.SUBRAMANIAN, J.

vrn

Judgment made in S.A.(MD).No.139 of 2015 and M.P(MD)Nos.1 of 2015

Dated 27.01.2021

http://www.judis.nic.in