Madras High Court
Susila Ammal vs K.R.Parthasarathy on 5 January, 2023
S.A.No.751 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2023
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA.J
S.A.No.751 of 2007
and
M.P.No.1 of 2007
Susila Ammal .. Appellant
-Vs.-
1. K.R.Parthasarathy
2. K.R.Ekambram
3. K.R.Munusamy
4. K.R.Karpagam
5. Gunasekaran .. Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure Code against the judgment and decree dated 02.04.2007 made in
A.S.No.16 of 2005 on the file of the Sub Court, Vellore, Vellore District
confirming the judgment and decree dated 13.08.2004 made in O.S.No.497
of 1996 on the file of the Principal District Munsif Court, Vellore, Vellore
District.
1/7
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S.A.No.751 of 2007
For appellant ... Mr.T.Dhanyakumar
For Respondent-1 ... Died
For Respondents ... Mr.S.N.Ravichandran
2,3,6 to 10
For Respondent-4... Not ready in notice
For Respondent-5... Dismissed vide order dated 23.07.2010.
JUDGMENT
This Second Appeal arises out of a suit for partition filed by the
plaintiff seeking a decree for her 1/5th share in the suit schedule properties.
Since the appeal purely rests upon the decision of the Hon'ble Supreme
Court reported in 2020 (9) SCC 1 [Vineeta Sharma Vs. Rakesh Sharma
and Others], I do not propose to discuss at the length the pleadings,
judgment of the Courts below and the submissions of the counsels except to
briefly touch upon the same.
2. The plaintiff and the 4th defendant are daughters and defendants
1 to 3 are the sons of one Rathina Mudaliar. The case of the plaintiff was
that the properties belonged to Rathina Mudaliar and on his death intestate
the properties devolved equally upon the plaintiff and defendants 1 to 4.
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S.A.No.751 of 2007
3. Defendants 1 to 3 on the other hand had filed a written
statement contending that the properties are the ancestral properties. They
had also stated that a portion of the suit schedule properties had been sold to
one Janakiraman, Ramadoss and Meerabai even prior to filing of the suit.
However, the plaintiff has not chosen to implead the purchasers.
4. A preliminary decree was passed on 13.08.2004 by the learned
Principal District Munsif, Vellore in O.S.No.497 of 1996 granting a 1/20th
share to the plaintiff. The said judgment and decree was taken up on appeal
in A.S.No.16 of 2005 on the file of the Subordinate Court, Vellore. The
defendants had also filed a cross appeal questioning the decree on the
ground that since a division had taken place between Rathina Mudaliar and
defendants 1 to 3 and there was nothing left for division after the death of
Rathina Mudaliar. This contention has been rejected by the learned
Subordinate Judge, Vellore and there is no challenge to the same. The
learned Subordinate Judge has also confirmed the judgment and decree of
the trial Court by judgment and decree dated 02.04.2007. Aggrieved by
which, the plaintiff has filed the above second appeal.
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S.A.No.751 of 2007
5. This second appeal has been admitted on 10.11.2022 on the
following substantial questions of law:
(i) Whether the plaintiff is a co-parcener
entitled to claim the benefit in the same manner as
defendants 1 to 3 by virtue of Section 6 of the Hindu
Succession Act, 1956 as amended by Hindu
Succession (Amendment) Act 2005 which came into
force on 09.09.2005?
(ii) Whether the defendants have proved and
discharged the onus that the suit properties are joint
family properties?
6. In the light of the judgment of the Hon'ble Supreme Court
reported in 2020 (9) SCC 1 [Vineeta Sharma Vs. Rakesh Sharma and
Others], the question as to whether a Hindu daughter has a right to the
co-parcenary property is no longer res integra, the Hon'ble Supreme Court
has held as follows:-
“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
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S.A.No.751 of 2007
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.”
7. In the instant case, the plea that a partition had taken place
between the defendants 1 to 3 and their father has been negatived by the
lower appellate Court, against which, there is no challenge. Therefore,
considering the above proposition laid down in the case of Vineeta
Sharma Vs. Rakesh Sharma and Others, the appellant / plaintiff is entitled
to a 1/5th share in the suit schedule properties.
8. Accordingly, this Second Appeal is allowed. A preliminary
decree is passed granting a 1/5th share in the suit schedule properties to the
appellant / plaintiff. No costs. Consequently, connected miscellaneous
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S.A.No.751 of 2007
petition is closed.
05.01.2023
srn
To
1. The Subordinate Court, Vellore, Vellore District
2. The Principal District Munsif Court, Vellore, Vellore District.
3. The Section Officer, V.R.Section, High Court, Madras
P.T.ASHA.J.,
srn
https://www.mhc.tn.gov.in/judis
S.A.No.751 of 2007
S.A.No.751 of 2007
and
M.P.No.1 of 2007
05.01.2023
https://www.mhc.tn.gov.in/judis
