Devathal vs Periasamy
2022 Latest Caselaw 2002 Mad

                                                                                  A.S.No.87 of 2017


                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 08.02.2022

                                                            CORAM

                                   THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN

                                                        A.S.No.87 of 2017

                     Devathal                                                ...Appellant
                                                               vs.

                     Periasamy                                               ... Respondent

                     PRAYER: Appeal Suit is filed under Order 41 Rule 1 of the Code of
                     Civil Procedure read with Section 96 of the Code of Civil Procedure,
                     against the judgment and decree of the learned III Additional District
                     Judge, Dharapuram in O.S.No.17 of 2016 dated 02.01.2017.


                                        For Appellant    : Mr.A.K.Kumarasamy, Senior Counsel
                                                          for Mr.S.Kaithamalai Kumaran


                                        For Respondent : Mr.M.Guruprasad


                                                        JUDGMENT

The plaintiff, in O.S.No.17 of 2016, which was pending on the file

of the III Additional District Court, Dharapuram, is the appellant herein.

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The respondent in the present appeal who was also the defendant is her

own brother. For the sake of convenience, let me revert back to the

nomenclature as was referred to in the trial Court viz., plaintiff and

defendant. To reiterate, the plaintiff is the appellant and the defendant is

the respondent herein.

2. The plaintiff, had filed the suit in O.S.No.17 of 2016, which was

subsequently taken up for trial, by the learned III Additional District

Judge, Dharapuram, for partition and separate possession of ½ share with

respect to the suit properties. In the plaint, it had been stated that the

father of the plaintiff and the defendant viz., Kandhasamy Gounder had

died in the year 2001. The mother of the plaintiff and the defendant had

pre-deceased the father. The properties mentioned in the schedule to the

plaint, to which the partition is now sought for, are ancestral properties.

Claiming ½ share in the suit properties, the suit has been filed.

3. In the written statement, the defendant also put up the very same

stand that the properties are ancestral in nature and that the mother had

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pre-deceased the father. It was claimed that therefore, when the father

and the defendant were alive, they were both equally entitled to ½ share

and on the death of the father, the ½ share of the father has to be divided

into two shares, leaving the plaintiff entitled to 1/4th un-divided share and

the defendant who already had ½ share entitled to another 1/4th un-

divided share, leaving the defendant with 3/4th share.

4. The learned Additional District Judge had framed the following

issues for trial:

1. Whether the suit is hit by res judicata?

2. Whether the plaintiff can seek partition and

separate possession under the Act 39 of 2005

amended by the Central Government to the Hindu

Succession Act?

3. Whether the plaintiff is entitled for partition and

permanent injunction?

4. To what other reliefs are the parties entitled?

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5. The parties went to trial and during the course of trial, the

plaintiff examined herself as PW1 and for good measure the defendant

also examined himself as DW1. On the side of the plaintiff, Exs.A1 to

A6 were marked. Ex.A1 is the partition deed dated 12.08.1974. Ex.A2

is the death certificate of the father dated 07.10.2001 and Ex.A6 was the

plaint in O.S.No.229 of 2011, and probably based on the particular suit,

the first issue of res judicata was framed by the trial Judge. The

defendant marked Exs.B1 to B3. The defendant primarily marked

documents relating to possession and claimed exclusivity on that

particular aspect and marked Kisth receipts as Ex.B1, property tax

receipts as Ex.B2 and Computerized chitta as Ex.B3.

6. Heard Mr.A.K.Kumarasamy, learned Senior Counsel appearing

for the appellant and Mr.M.Guruprasad, learned counsel appearing for

the respondent.

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7. The point which arises for consideration under Order 41 Rule 31

of the Code of Civil Procedure is the effect of the introduction of the

amendment of Section 6 of the Hindu Succession Act, 1956 and whether

the daughter can be recognised to be entitled to a share in the ancestral

property?

8. I am deeply impressed with the arguments advanced in a most

sanguine manner by Mr.A.K.Kumaraswamy, learned Senior Counsel who

pointed out that by the introduction of amendment of Section 6 of the

Hindu Succession Act, 1956, the daughters must be recognized to have

share in ancestral property. The issue had travelled to the Hon'ble

Supreme Court, since there were conflicting verdicts by different High

Courts and finally the issue was settled in the year 2020 by the judgment

in Vineeta Sharma Vs. Rakesh Sharma and others reported in 2020 (9)

SCC 1: 2020 (5) CTC 302, in which the Hon'ble Supreme Court after

examining various judgments and the object behind the Act held that the

daughter is actually entitled to an equal share as that of the son in

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ancestral property.

9. It was held in paragraph 137 as follows:

137. Resultantly, we answer the reference as under:

137.1.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.

137.2.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.

137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

137.4. 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 partition or disruption

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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 1956 Act 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.

10. It had thus been held that a daughter is entitled to an equal

share in the ancestral property. This would naturally mean that when the

father was alive, the father and the son and daughter in the instant case,

formed part of a joint family and all three were entitled to an equal

undivided 1/3rd share in the property. On the death of the father, his

share once again devolved on to the son and the daughter viz., the

plaintiff and the defendant herein, and this would also mean that

consequent to the death of the father, the plaintiff and the defendant

would get equal shares in the share of the deceased father. Equal shares

would only mean that they would each then get an undivided ½ share in

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the property.

11. The learned trial Judge erred in holding that the daughter was

not entitled to a share in the ancestral property. Answering issue No.2,

the learned Judge held that the plaintiff cannot claim share on the basis

of the amendment to the Hindu Succession Act 1 of 1990 and the

amendment Act 39 of 2005. The learned Judge has stated that

vdnt thjp ,e;J thhp R h pi k rl;lk;

1-1990 ? d; g o a[ k;. kj;jpa mu R bfhz;Lt e;j

jpUj;j rl;lk; 39- 2005 ? d; g o a[ k; ghpfh u k;

nfhu Koa h J/

12. It was also pointed out by the learned Judge that the plaintiff

had married long back. Probably the learned Judge held that the

daughter is unreasonable in claiming an equal share. But, the son cannot

deny an equal share, when she is entitled to under law.

13. I hold that the daughter and son are equally entitled to an

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equal ½ undivided share in the suit schedule properties. The point

framed is answered accordingly.

14. The judgment of the trial Court is interfered with and the

decree granted is set aside. A decree is granted that the plaintiff/

appellant herein is entitled to undivided ½ share in the suit properties.

15. Accordingly, this Appeal Suit is allowed. The judgment and

decree of the trial Court is set aside. The suit is decreed in the above

terms as the plaintiff is entitled to an undivided ½ share in the suit

properties. Let further proceedings move forward before the trial Court.

In view of the nature of the relationship between the parties, there will be

no order as to costs.

08.02.2022 dsa Index : Yes Internet: Yes Speaking order

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C.V.KARTHIKEYAN,J.

dsa

To The III Additional District Judge, Dharapuram.

A.S.No.87 of 2017

08.02.2022

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