Madras High Court
Poongothai Ammal vs Senguttuvan on 3 March, 2023
S.A.No.1524 of 2004
and C.M.P.No.12045 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.03.2023
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.1524 of 2004
and
C.M.P.No.12045 of 2004
Poongothai Ammal ...Appellant
Vs.
1.Senguttuvan
2.Elangovan (Died)
3.Krishnan
4.Kanchana
5.Radha Ammal
6.Mala
7.Vijayan (Died)
8.Vinoth
9.Vimal
10.Mahalakshmi
11.Balu (Minor) ... Respondents
(Rep. by his natural guardian R-10)
(RR6 to 9 & 10, 11 are brought on record as LRs of the R2 and R7 vide
order of Court dated 06.09.2022 made in CMP.No.172/2009 &
14726/2021 in S.A.No.1524/2004 respectively)
Page 1 of 10
https://www.mhc.tn.gov.in/judis
S.A.No.1524 of 2004
and C.M.P.No.12045 of 2004
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 24.12.2003 passed in A.S. No.72 of 2003, on
the file of the Principal District Court, Vellore, upholding the decree and
judgment dated 31.03.2003 passed in O.S. No.75 of 1999, on the file of
the Sub Court, Gudiyatham, Vellore District.
For Appellant : Mr.M.Muthappan
For Respondents : No appearance.
JUDGMENT
The appellant herein is the plaintiff in O.S. No.75 of 1999, on
the file of the Sub Court, Gudiyatham, Vellore District. She filed the suit
for partition of the suit properties into six equal shares and to allot one
such share to her and also for costs.
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 appeal would also be indicated.
https://www.mhc.tn.gov.in/judis
S.A.No.1524 of 2004
and C.M.P.No.12045 of 2004
3.The case of the plaintiff in nutshell is as follows:
The plaintiff and the defendants 1 to 4 are sons and daughters
of Kolandhai Gounder and the fifth defendant Radhammal is their
mother. Kolandhai Gounder died leaving behind the plaintiff and the
defendants as his legal heirs. The suit properties are self acquired
properties of Kolandhai Gounder. Item Nos.11 to 17 in 'A' schedule
properties were purchased in the name of the fifth defendant. The suit
properties were enjoyed by Kolandhai Gounder as his own properties
and the plaintiff and the defendants are in joint possession and enjoyment
of the same. While so, on 21.01.1991 the defendants 1 to 5 trespassed
into Item No.1 of the suit property in which the plaintiff is residing, and
asked her to vacate the premises. Thereafter, the plaintiff issued a notice
on 04.02.1991 (Ex.A1) to the defendants for partition of the suit
properties. Since there was no response from them, the plaintiff had filed
the suit.
https://www.mhc.tn.gov.in/judis
S.A.No.1524 of 2004
and C.M.P.No.12045 of 2004
4.The suit was resisted by the defendants on the following
grounds :
i. Item No.3 of 'B' schedule property was leased out by the mother of
the plaintiff (5th defendant) and income thereon was used for her
personal expenses.
ii. The plaintiff's husband was constructing a house and therefore, the
plaintiff was accommodated in Item No.1 of 'B' schedule property.
The plaintiff thereafter left Item No.1 of the suit property.
iii. Kolandhai Gounder (plaintiff's father) during his life time executed
a Will dated 15.01.1972 (Ex.B28) bequeathing the suit properties
in favour of their sons.
iv. Item Nos.2, 3, 10 ,17, 19, 27, 28, 29, 37 & 39 are ancestral
properties of late Kolandhai Gounder and the defendants 1 to 3
and the same were partitioned amongst them through a koor chit
dated 12.02.1969 (Ex.B1). The remaining extent of the land are not
self acquired properties of Kolandhai Gounder since they were
purchased from out of the joint family nucleus. Therefore,
https://www.mhc.tn.gov.in/judis
S.A.No.1524 of 2004
and C.M.P.No.12045 of 2004
according to the defendants the plaintiff cannot claim any share in
the suit properties.
5.After full contest, the learned Subordinate Judge,
Gudiyatham, Vellore District, decreed the suit vide his decree and
judgment dated 31.03.2003 as under :
i. Item No.14 to 16, 18, 22 to 24 are the self acquired properties of
the fifth defendant.
ii. The other properties are the joint family properties of Kolandhai
Gounder and defendants 1 to 3 and as per Hindu Succession Act
the plaintiff is entitled to get 1/24th share alone in the suit
properties except the properties owned by the fifth defendant.
iii. The plaintiff can take separate proceedings under Order XX Rule
12 CPC in respect of future mesne profits.
6. Aggrieved over the decree and judgment dated 31.03.2003
passed by the learned Subordinate Judge, Gudiyatham, Vellore District,
the defendants filed an appeal in A.S.No.72 of 2003 before the learned
https://www.mhc.tn.gov.in/judis
S.A.No.1524 of 2004
and C.M.P.No.12045 of 2004
Principal District Judge, Vellore District and the plaintiff filed cross
objection.
7. The first appellate Court after analysing the oral and
documentary evidence adduced on both sides upheld the findings of the
trial Court vide his decree and judgment dated 24.12.2003, aggrieved
over which, the present Second Appeal is filed by the plaintiff on the
following substantial questions of law.
i. Whether the Courts below are right in law that in the absence of
any documentary evidence to prove that the properties are
purchased from the nucleus of joint family properties?
ii. Whether the Courts below are right in law applying the doctrine of
blending in the absence of any proof that the properties are
purchased from the nucleus of the joint family properties?
8. Heard Mr.M.Muthappan, learned counsel for the appellant.
Though several opportunities were given to the respondents, there is no
representation. Moreover, the appeal filed by the respondents in
https://www.mhc.tn.gov.in/judis
S.A.No.1524 of 2004
and C.M.P.No.12045 of 2004
S.A.No.2152 of 2004 was dismissed by this Court for non-prosecution on
02.03.2023.
9. Mr.M.Muthappan, learned counsel for the appellant /
plaintiff relied on the decision in Vineeta Sharma vs. Rakesh Sharma
and others reported in (2020) 9 SCC 1 wherein it has been held that if a
daughter is alive on the date of enforcement of Amendment Act, 2005 i.e.
09.09.2005, she becomes a coparcener with effect from date of
Amendment Act (i.e. 09.09.2005) irrespective of whether she was born
before the said amendment. It was further held that that the rights under
substituted Section 6 can be claimed by a daughter born prior to the
amendment, with effect from the date of amendment with saving of past
transactions as provided in proviso to Section 6 (1) r/w. Section 6(5) of
the Hindu Succession Act. According to the counsel, the share of the
plaintiff can be enlarged in view of the above decision of the Hon'ble
Supreme Court. He further did not press the claim over the 5 th
defendant's properties.
https://www.mhc.tn.gov.in/judis
S.A.No.1524 of 2004
and C.M.P.No.12045 of 2004
10. In the instant case, both the Courts below had held that
except the properties which are in the name of the fifth defendant namely
Radha Ammal (mother of the plaintiff) other properties are joint family
properties consisting of the plaintiff and the defendants 1 to 3 and that
the plaintiff's father is entitled to 1/4th share. It was further held that as
per Hindu Succession Act the plaintiff can claim only 1/6th share from
her father's share of 1/4th and thus she is entitled to 1/24 shares in
respect of the suit properties except the properties belonging to the fifth
defendant. As per the decision of the Hon'ble Apex Court in Vineeta
Sharma vs. Rakesh Sharma and others (cited supra) the plaintiff is
entitled to get equal share as that of sons and therefore, the suit filed by
her is decreed granting her 1/4th share in the suit properties except the
properties belonging to the fifth defendant.
11. In the result,
i. the second appeal is allowed. No costs. Consequently,
connected civil miscellaneous petition is closed.
https://www.mhc.tn.gov.in/judis
S.A.No.1524 of 2004
and C.M.P.No.12045 of 2004
ii. the decree and judgment dated 24.12.2003 passed in
A.S. No.72 of 2003, on the file of the Principal
District Court, Vellore District and the decree and
judgment 31.03.2003 passed in O.S. No.75 of 1999,
on the file of the Sub Court, Gudiyatham, Vellore
District are set aside to the extent of the share of the
plaintiff.
iii. The plaintiff is entitled to get 1/4 share in the suit
properties except the properties owned by the 5th
defendant.
03.03.2023
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
https://www.mhc.tn.gov.in/judis
S.A.No.1524 of 2004
and C.M.P.No.12045 of 2004
R. HEMALATHA, J.
mtl
To
1. The Principal District Court, Vellore.
2. The Sub Court, Gudiyatham, Vellore District.
3. The Section Officer, VR Section, High Court, Madras.
S.A.No.1524 of 2004
and C.M.P.No.12045 of 2004
03.03.2023
https://www.mhc.tn.gov.in/judis
