Madras High Court
Manicka G.Varadharajan ...1St ... vs Santhamani Ammal on 12 July, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA(MD)No.505 of 2011
&
MP(MD)No.2 of 2011
Manicka G.Varadharajan ...1st defendant /
appellant / appellant
Vs.
1.Santhamani Ammal
2.Dhanalakshmi ... Plaintiffs 1 & 2 /
Respondents 1 & 2 /
Respondents 1 & 2
3.Vanaja
4.Suseela ...Defendants 2 & 3 /
Respondents 3 & 4 /
Respondents 3 & 4
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 21.09.2010 in A.S No.42
of 2009 on the file of the Sub Court, Paramakudi confirming the
judgment and decree dated 11.08.2009 made in O.S No.102 of 2007
on the file of the District Munsif, Paramakudi.
For Appellants : Mr.K.Govindarajan
https://www.mhc.tn.gov.in/judis/
1/6
For Respondents : Mr.S.Sivathilagar for R2
No appearance for R3 & R4
R1 - died
JUDGEMENT
This second appeal arises out of partition suit proceedings.
There is no dispute that the suit properties belonged to one Manicka
P.Govindhan. The first plaintiff Santhamani Ammal was his wife.
The second plaintiff Dhanalakshmi as well as the defendants are the
children born to the said Manicka P.Govindhan through the first
plaintiff. Santhamani Ammal. The suit was instituted by keeping the
statutory scheme set out in the Hindu Succession (Tamil Nadu
Amendment) Act, 1989 in mind. The courts below have also granted
preliminary decree on that basis. Challenging the same, this second
appeal has been filed. The second appeal was admitted on the
following questions of law :
“a)Whether the finding of the courts below in
allotting equal share to the second respondent is
sustainable especially when there is no documentary
evidence available to prove the date of marriage of the
second plaintiff ?
b)Whether the finding of the courts below with
respect to partial partition is sustainable especially
when the evidence available to the effect that the 1st
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plaintiff received the money from the LIC on the death
of her husband and the same was not included ?”
2.During the pendency of this appeal, Santhamani Ammal
passed away. That leaves us only with the son and three daughters.
The Hon'ble Supreme Court in the decision reported in (2020) 9 SCC
1 (Vineeta Sharma vs. Rakesh Sharma and Ors.), held as follows :
“129.....
`(i)The provisions contained in substituted
Section 6 of the Hindu Succession Act, 1956 confer
status of coparcener on the daughter born before or
after amendment in the same manner as son with
same rights and liabilities.
(ii) The rights can be claimed by the daughter
born earlier with effect from 9.9.2005 with savings as
provided in Section 6(1) as to the disposition or
alienation, partition or testamentary disposition which
had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it
is not necessary that father coparcener should be
living as on 9.9.2005.
(iv) The statutory fiction of partition created by
proviso to Section 6 of the Hindu Succession Act, 1956
as originally enacted did not bring about the actual
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partition or disruption of coparcenary. The fiction was
only for the purpose of ascertaining share of deceased
coparcener when he was survived by a female heir, of
Class-I as specified in the Schedule to the Act of 1956
or male relative of such female. The provisions of the
substituted Section 6 are required to be given full
effect. Notwithstanding that a preliminary decree has
been passed the daughters are to be given share in
coparcenary equal to that of a son in pending
proceedings for final decree or in an appeal
(v)......”
3.In view of the aforesaid decision of the Hon'ble Surpeme Court,
I answer the substantial questions of law against the appellant and it
is decreed that the appellant and the respondents 2 to 4 will have
1/4th share each in the suit property. The second appeal is disposed
of accordingly. The preliminary decree passed by the courts below are
accordingly modified. The 3rd and 4th respondents will be entitled to
preliminary decree on payment of court fee proportionate to their
share. No costs. Connected miscellaneous petition is closed.
12.07.2021
Index : Yes / No
Internet : Yes/ No
skm
https://www.mhc.tn.gov.in/judis/
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1.The Sub Judge, Paramakudi.
2.The District Munsif, Paramakudi.
Copy to :
The Record Keeper,
V.R. Section, Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
G.R.SWAMINATHAN, J.
skm
SA(MD)No.505 of 2011
12.07.2021
https://www.mhc.tn.gov.in/judis/
