Madras High Court
Lakshmi vs Subramani (Deceased) on 25 April, 2022
S.A.Nos.421 & 422 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.04.2022
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.Nos.421 & 422 of 2006
and
C.M.P. No.5483 of 2006
Lakshmi ... Appellant in both appeals
Vs.
1.Subramani (Deceased)
2.Ramasamy
3.Chinnappa Gounder
4.Kaliappa Gounder
5.Muthusamy Gounder
6.Muthusamy N.Arumugham
7.K.Thangaraj
8.Muniamooppan
9.Karuppayammal
10.Ramasamy
11.Valliammal
12.Pappathi
13.Duraisamy
14.Pavayammal
15.Minor. Myilsami @ Jeevanandam
(Rep. by his mother Pavayammal)
16.Muthayammal
17.C.Duraisamy
18.Saraswathi
Page 1 of 14
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S.A.Nos.421 & 422 of 2006
19.Pappathi
20.Vijayakumar
21.Sugumar
22.Chellammal
23.Boopathy
24.Kannammal
25.Marayammal
26.Jayammal
27.Ganapathi
28.Devi ... Respondents in S.A.No.421 of 2006
(RR25 to 28 brought on record as LRs of the deceased R1 vide order of
Court dated 17.09.2010 made in C.M.P.No.1816/2007)
1.Subramani (Deceased)
2.Ramasamy
3.K.Thangaraj
4.C.Duraisamy
5.Chinnappa Gounder
6.Kaliappa Gounder
7.Muthusamy Gounder
8. N.Arumugham
9.Muniamooppan
10.Karuppayammal
11.Ramasamy
12.Valliammal
13.Pappathi
14.Duraisamy
15.Pavayammal
16.Minor. Myilsami @ Jeevanandam
(Rep. by his mother Pavayammal)
17.Muthayammal
18.Saraswathi
19.Pappathi
20.Vijayakumar
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S.A.Nos.421 & 422 of 2006
21.Sugumar
22.Chellammal
23.Boopathy
24.Kannammal
25.Marayammal
26.Jayammal
27.Ganapathi
28.Devi ... Respondents in S.A.No.422 of 2006
(RR25 to 28 brought on record as LRs of the deceased R1 vide order of
Court dated 17.09.2010 made in C.M.P.No.1817/2007)
Prayer in S.A.No.421 of 2006 : Second Appeal filed under Section 100
CPC, 1908 against the decree and judgment dated 18.03.2005 passed in
A.S.No.50 of 2001, on the file of the I Additional District Court, Erode,
reversing the decree and judgment dated 18.08.1998 passed in
O.S.No.680 of 1981, on the file of the I Additional District Munsif Court,
Erode.
Prayer in S.A.No.422 of 2006 : Second Appeal filed under Section 100
CPC, 1908 against the decree and judgment dated 18.03.2005 passed in
A.S.No.51 of 2001, on the file of the I Additional District Court, Erode,
upholding the decree and judgment dated 18.08.1998 passed in
O.S.No.680 of 1981, on the file of the I Additional District Munsif Court,
Erode.
For Appellant
(in both the appeals) : Mr. Abu Backer Sidhic
for Mr. Narendhiran
For R7 in S.A. No.421/2006 &
R3 In S.A. No.422/2006 : Mr. M. Palani
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S.A.Nos.421 & 422 of 2006
COMMON JUDGMENT
The appellant in both the appeals is the plaintiff in
O.S.No.680/1981 on the file of I Additional District Munsif Court,
Erode. She filed the suit for partition and separate possession of the suit
properties.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their rank in
the present appeals would also be indicated.
3.The minimum facts that are required for the disposal of the
present second appeals are as follows :
The plaintiff is the daughter of the first defendant and the
defendants 2 & 3 are her brothers. The tenth defendant is the husband of
the plaintiff. The case of the plaintiff is that the suit properties are the
self acquired properties of her father late Kolandha Gounder and that she
is entitled to 1/32 share in Item Nos.1 to 3 and 1/64 share in Item Nos.
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S.A.Nos.421 & 422 of 2006
4 & 5 and 1/4 share in Item Nos.6 to 8 of the suit properties. According
to her, the defendants 4, 6, 8 and 9 are having 1/8 share in Item Nos.1 &
2 of the suit schedule properties. It is further contended by her that
though she requested the defendants 1 to 3 for effecting partition, they
did not come forward to do the same. Hence, she has filed the suit.
4. The defendants 4 to 9 and 11 to 29 remained absent before
the trial Court and were set ex parte.
5. The suit was resisted by the defendants 1 to 3 and 10 on the
following grounds :
1) The suit properties are not the self acquired properties of late
Kolandha Gounder. He had purchased the suit items 1 to 3 from
out of the income derived from his ancestral properties and also by
selling some of his ancestral properties.
2) The suit items 4 & 5 were purchased by the defendants 2 & 10
jointly and the plaintiff cannot claim any right over the same.
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S.A.Nos.421 & 422 of 2006
3) The suit items 6 to 8 are dwelling houses and hence, the plaintiff
cannot seek for any partition as per Section 23 of the Hindu
Succession Act, 1956.
4) The plaintiff is entitled to get only 1/12 share in suit items 1 to 3
alone.
6. The trial Court after framing necessary issues and after full
contest decreed the suit partly vide its decree and judgment dated
18.08.1998. A preliminary decree for partition dividing suit items 1 to 3
and 6 to 8 into four equal shares and to allot one such share in favour of
the plaintiff was passed by the trial Court. The suit was dismissed as
regards items 4 & 5 and also with regard to mesne profit on the following
grounds :
1) The suit items 1 to 3 and 6 to 8 are the self acquired properties of
late Kolandha Gounder.
2) Ex.A9 to Ex.A18 proves that Kolandha Gounder purchased the
suit Items 6 to 8 from out of the income derived from suit items
1 to 3 and therefore, the plaintiff is entitled to get 1/4 share in the
above items.
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S.A.Nos.421 & 422 of 2006
7. Aggrieved over same the plaintiff preferred an appeal in
A.S.No.51 of 2001 and the second defendant preferred an appeal in
A.S.No.50 of 2001 before the I Additional District Court, Erode. The
first appellate court after analysing the oral and documentary evidence
adduced on both sides, passed a common judgment dated 18.03.2005
reducing the share of the plaintiff on the following grounds:
1) The suit items 1 to 3 were purchased by late Kolandha Gounder by
selling his ancestral properties and therefore, they have to be
treated as his ancestral properties and not self acquired properties.
2) After the death of Kolandha Gounder, the plaintiff is entitled to
1/12 share alone in suit items 1 to 3.
3) The above mentioned share of the plaintiff would be excluding the
1/8 share owned by the defendants 4 to 9. As far as the suit items
4 & 5 are concerned, it is self acquired properties of the defendants
2 & 10 and therefore, the plaintiff is not entitled to get any share.
4) The plaintiff cannot claim any partition in respect of suit items
6 to 8 as per Section 23 of the Hindu Succession Act, 1956 as they
are dwelling houses where male co-parceners are residing.
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S.A.Nos.421 & 422 of 2006
8. Now the present second appeals are filed by the plaintiff. At
the time of admission, the following substantial questions of law were
framed by this Court :
1) Whether the lower appellate Court erred in holding that the suit
items 1 to 3 and 6 to 8 are joint family properties in the absence of
any evidence to show that an ancestral nucleus existed and from
such ancestral nucleus there was surplus income derived for
acquiring the above said items of the suit properties?
2) Whether the lower appellate Court erred in not following well
established principles of law that a person claiming a property as
joint family property is not only bound to plead and prove that
there was an ancestral nucleus in the family and also to establish
that such ancestral nucleus was capable of yielding surplus income
to acquire such properties on the date of such purchase ?
9. Mr. Abu Backer Sidhic learned counsel for the appellant
contended that the suit items 1 to 3 and 6 to 8 stand in the name of late
Kolandha Gounder and they are the self acquired properties of late
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S.A.Nos.421 & 422 of 2006
Kolandha Gounder. In any event, even if the properties are treated as
ancestral properties, as per the recent decision in Vineeta Sharma
vs.Rakesh Sharma & Others, reported in 2020 (5) CTC 302, female legal
heirs also to be considered as co-parceners and therefore entitled for
equal shares in the ancestral properties as per the Hindu Succession
(Amendment) Act, 2005 in the absence of any prior partition. He would
further contend that after the repealing of Section 23 of Hindu
Succession Act in 2005, a female member is entitled to claim partition
even in respect of a dwelling house. In the circumstances, the first
appellate Court's observation that the plaintiff cannot claim any share in
suit items 6 to 8 cannot be accepted. He did not press his claim as far as
items 4 & 5 are concerned.
10. No representation on behalf of the respondents except the
seventh respondent. Mr. Mr. M. Palani, learned counsel for the seventh
respondent who contended that he does not have any interest in the suit
properties.
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S.A.Nos.421 & 422 of 2006
11. At the outset, it may be observed that the defendants 1 to 3
and 10, though contested the suit, did not file any appeal against the
judgment of the trial Court. The second defendant and the plaintiff alone
filed the first appeal. The first appellate Court did not grant any share in
respect of suit items 6 to 8 mainly on the basis that they are dwelling
houses and as per Section 23 of the Hindu Succession Act, the plaintiff
and the first defendant (mother of the plaintiff) cannot claim any share in
those properties. Therefore, the first appellate Court set aside the share
given to the plaintiff by the trial Court with regard to suit items 6 to 8.
Under Section 23 of the Hindu Succession Act, the female members are
not entitled to claim partition of a dwelling house until the male heir
chose to divide his share. However, Section 23 was amended by Hindu
Succession (Amendment) Act, 2005 and thus, there is no bar for a
daughter to claim a share in the dwelling house. Therefore, the plaintiff
can very well claim a share in respect of the same.
12. When the trial Court held that suit Items 1 to 3 and 6 to 8
are the self acquired properties of late Kolandha Gounder, the first
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S.A.Nos.421 & 422 of 2006
appellate Court held that they are ancestral properties. Now as per the
recent decision in "Vineeta Sharma vs.Rakesh Sharma & Others" (cited
supra) the female heirs are co-parceners and they are entitled to get an
equal share in ancestral properties also as per the Hindu Succession
(Amendment) Act 2005. In the instant case, admittedly there was no
prior partition and in such circumstances, the plaintiff is entitled to get a
share in suit items 1 to 3 and 6 to 8. As far as suit items 4 & 5 are
concerned, both the Courts below concurrently and rightly held that they
were purchased by the second defendant and the tenth defendant
(husband of the plaintiff) and the plaintiff cannot claim any share. A
perusal of the records shows that suit items 4 & 5 were purchased by the
defendants 2 & 10 in their names and the plaintiff has not proved her
claim that her father purchased suit items 4 & 5 in the name of the
defendants 2 & 10. In the circumstances, the observation of the trial
Court and the first appellate Court that the plaintiff cannot claim any
right in respect of suit items 4 & 5 is upheld.
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S.A.Nos.421 & 422 of 2006
13. It is admitted that the defendants 4, 6, 8 & 9 have 1/8 share
in suit items 1 & 2 and therefore the plaintiff is entitled to 1/32 share in
suit items 1 & 2. As regards, suit items 3, 6 to 8, the plaintiffs are entitled
to get 1/4 share. The suit with regard to items 4 & 5 are dismissed. In
view of the decision in "Vineeta Sharma vs. Rakesh Sharma & Others"
(cited supra), answering the substantial questions of law 1 & 2 does not
arise as the daughter has filed the suit for partition against her mother,
brothers and other co-sharers.
14. In the result,
i. the second appeals are allowed. No costs.
Consequently connected miscellaneous petition is
closed.
ii. The decree and judgment dated 18.03.2005 passed in
A.S.Nos.50 & 51 of 2001, on the file of the I
Additional District Court, Erode, and the decree and
judgment dated 18.08.1998 passed in O.S.No.680 of
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S.A.Nos.421 & 422 of 2006
1981, on the file of the I Additional District Munsif
Court, Erode, are set aside.
iii. The plaintiff is entitled for the following shares.
1) 1/32 share in suit items 1 & 2.
2) 1/4 share in suit items 3, 6 to 8.
3) The plaintiff is not entitled any share in suit items
4 and 5.
25.04.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1.The I Additional District Court, Erode.
2.The I Additional District Munsif Court, Erode.
3. The Section Officer, VR Section, High Court, Madras.
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S.A.Nos.421 & 422 of 2006
R. HEMALATHA, J.
bga
S.A.Nos.421 & 422 of 2006
25.04.2022
https://www.mhc.tn.gov.in/judis
