Madras High Court
Pavayammal vs Sampoornam on 20 April, 2023
S.A.No.922 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2023
CORAM
THE HONOURABLE JUSTICE Mr.V.LAKSHMINARAYANAN
S.A.No.922 of 2013
1.Pavayammal
2.Sampoornam
3.R.Prabha
4.Makudapathi alias R.Mukeshraja ...Appellants.
Vs.
Sampoornam,
w/o Ammasai Gounder Erangator Perumugai
Village Gobichettipalayam Erangator
Perumugai Village Gobichettipalayam Taluk
Erode District. ...Respondent.
PRAYER:Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree dated 06.11.2012 passed in
A.S.No.40 of 2012 on the file of the Principal District and Sessions Judge,
Erode, by reversing the judgment and decree dated 23 rd December 2011,
made in O.S.No.54 of 2008 on the file of the Subordinate Judge
Gobichettipalayam.
For Appellants : Mr.P.R.Balasubramanian
For Respondent : Mr.N.Manoharan
1/6
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S.A.No.922 of 2013
JUDGMENT
There was one Chennimalai Gounder, who had two sons, both of
whom were named Nachimuthu. We are concerned with the partition of the
family related to senior Nachimuthu. Senior Nachimuthu passed away in the
year 1978. He had left behind his legal heirs Pavayammal, his wife who is
the first defendant, his predeceased son's legal heirs, who are defendants 2
to 4 and the plaintiff, his daughter.
2.The family consisting of Chennimalai Gounder and the two
Nachimuthus entered into a partition under Ex.B2. Since the senior
Nachimuthu had died, the branch of senior Nachimuthu was represented by
his son E.N.Ramasamy. In the partition deed B schedule property was
allotted to E.N.Ramasamy. The plaintiff seeks for 1/6th share of the property
allotted to the family of senior Nachimuthu Gounder. This case deals with a
simple application of Section 8 of The Hindu Succession Act.
3.On the death of senior Nachimuthu, the succession opens. Senior
Nachimuthu had died intestate. Therefore, his Class I heirs succeed to his
estate equally. On that day, the legal heirs of Nachimuthu were
E.N.Ramasamy, Pavayammal and Sampoornam, the plaintiff. Each of them
will be entitled to 1/3rd share in the properties which fell to the share of
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S.A.No.922 of 2013
senior Nachimuthu. In other words, half share of B schedule will go to
E.N.Ramasamy as a coparcener and the plaintiff, first defendant and
defendant Nos.2 to 4 will be entitled to 1/3rd of the half share which fell to
the share of senior Nachimuthu. In fine, the plaintiff will be entitled to 1/6 th
share, her mother Pavayammal to 1/6th share and the family of
E.N.Ramasamy will be entitled to 4/6th share.
4.It is not a case of ancestral property, whereby, Section 6 applies.
Therefore, the question of applying Section 6 does not arise here. Hence, the
questions suggested by the learned Counsel for the appellant as joint family
property is totally inapplicable.
5.Mr.N.Manoharan, the learned Counsel for the respondent/plaintiff
would submit that Pavayammal had passed away on 10.05.2021, her share
of 1/6th will now have to be divided between her legal heirs, i.e.,
E.N.Ramasamy and Sampoornam. Therefore, the share of the plaintiff will
be 1/6th share + 1/12th , share of the defendants Nos.2 to 4, together will be
4/6th share + 1/12th share.
6. Following the recent judgment of the Supreme Court, the trial court
is requested not to wait for the parties to file a final decree application but
take up the suit for final decree proceedings and proceed in accordance with
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S.A.No.922 of 2013
law by appointing an advocate commissioner. The parties are directed to
appear before the trial court for the purpose of the final decree proceedings
on 06.06.2022.
7.The questions of law raised by the, learned Counsel for the
Appellants do not arise for consideration because the right claimed by the
plaintiffs is as a legal heir of the deceased senior Nachimuthu and not as a
coparcener. Hence, the issue of applying Section 6 of the amended Hindu
Succession Act does not arise at all. The defendants Nos.2 to 4 being the
major sharers, the court below is requested to work out the equity in their
favour, but that too in manner in accordance with law.
8. In view of the above, this second appeal is dismissed. The judgment
and decree of the subordinate judge, Gobichettipalayam in O.S.No.54 of
2008 dated 23.12.2012, as reversed, by the judgment and decree in
A.S.No.40 of 2012 dated 06.11.2012 by the Principal District Judge Erode
stands confirmed. No Costs.
20.04.2023
Index : Yes/No
Speaking : Yes/No
Neutral Citations : Yes/No
nst
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S.A.No.922 of 2013
To:
1.The II Additional Subordinate Judge,
Gobichettipalayam.
2.The Principal District and Sessions Judge,
Erode.
3. Record Keeper
VR Section
High Court of Madras
Chennai.
https://www.mhc.tn.gov.in/judis
S.A.No.922 of 2013
V.LAKSHMINARAYANAN. J,
nst
S.A.No.922 of 2013
20.04.2023
https://www.mhc.tn.gov.in/judis
