Madras High Court
K.Kailasamoorthy vs N.Indiradevi ... Plaintiff / 1St on 21 November, 2023
Author: R.Subramanian
Bench: R.Subramanian
AS.No.562 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.11.2023
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
A.S.No.562 of 2017
and CMP No.18764 of 2017
K.Kailasamoorthy ... Appellant/1st Defendant
vs.
1. N.Indiradevi ... Plaintiff / 1st Respondent
2. Vijyalakshmi
3. K.N.Muthusamy
4. Murugambigai Muthusamy
5. C.Shankarappan
6. C.Duraisamy ... Defendants 2 to 6/Respondents 2 to 6
Appeal suit has been filed under Section 96 read with Order XLI
Rule 1 of the Civil Procedure Code, against the judgment and decree of
the I Additional District Court at Coimbatore, dated 03.04.2017 in OS.
No.20 of 2015.
1/30
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AS.No.562 of 2017
For Appellant : Mr.P.Valliappan, Senior Counsel
for Mr.S.M.S.Shriram Narayanan
For Respondents : Mr.G.Arivarasan, for R1
Dr.C.Ravichandren, for R2
RR3 to 6 - served - No appearance
JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
The first defendant in OS No.20 of 2015 assails the decree for
partition granted by the Trial Court by way of this Appeal.
2. The said suit was initiated by one of the daughters of
Kandhasamy, who died on 13.08.1965 leaving behind his wife
Lakshmiammal, two daughters viz. Vijayalakshmi and Indiradevi, the
second defendant and the plaintiff in the suit respectively, and
Kailasamoorthy, the first defendant/appellant herein. It is not in dispute
that Lakshmiammal died in 1997. The other defendants are the alienees
from the first defendant, after 09.09.2005 viz. the date on which the
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Hindu succession Amendment Act 39 of 2005, came into force.
3. The plaintiff laid the suit primarily contending that the suit
properties were ancestral Properties belonging to the joint family
consisting of Kandhasamy, herself and defendants 1 and 2. She based
her claim on the fact that the suit properties were allotted to Kandhasamy
at a partition that took place between him and his brothers on
29.07.1959. Contending that after the introduction of the Hindu
succession Amendment Act 39 of 2005, she would be a coparcener and
she would be entitled to equal share with that of the son, she had claimed
1/3rd share in the suit properties.
4. The first defendant Kailasamoorthy, the son, resisted the claim,
while the second defendant daughter Vijayalakshmi sailed with the
plaintiff. The claim was resisted principally on the ground that
Kandhasamy having died even in the year 1965, the plaintiff would not
become a coparcener, the Amending Act would apply only if the Hindu
father was alive on the date of its coming into force viz. 09.09.2005. The
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first defendant in fact if we can say so, with fairness, conceded the share
of the plaintiff in the ½ share that would have belonged to Kandhasamy,
if a partition had taken place just before his death (Notional Partition
under Section 6 of the Hindu succession Act 1956). It was also
contended that the suit was hit by limitation.
5. On the above pleadings, the learned Trial Judge framed the
following issues:
1.Whether the sale by 1st defendant in respect
of 22 cents in favour of 3rd and 4th defendant is
legally valid and bind on the plaintiff;
2.Whether the suit properties are ancestral
coparcenary property belonging to the coparcenary
consisting the plaintiff and defendants 1 and 2;
3. Whether the plaintiff is entitled for 1/3
share in the suit property; and
4.What other relief the plaintiff is entitled to.
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6. At trial, the plaintiff was examined as P.W.1 and Exhibits A1 to
A10 were marked. The defendants did not let in any evidence either oral
or documentary.
7. The learned Trial Judge took up issues 2 and 3 together and on
appreciation of the evidence concluded that the properties in the hands of
Kandhasamy were his self-acquisition and not ancestral in nature. In
order to come to the said conclusion, the learned Trial Judge relied
heavily upon the partition that had taken place in 29.07.1959 between
Kandhasamy and his brothers to conclude that property allotted to
Kandhasamy at a partition between him and his brothers would be his
self-acquisition.
8. Upon the said conclusion, the learned Trial Judge held that as
heirs of Kandhasamy, the plaintiff and defendants 1 and 2 would be
entitled to 1/3rd share each. On the prayer for declaration that the
alienations by the first defendant are invalid, the learned Trial Judge
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concluded that they would be valid to the extent of the 1/3 rd share of the
first defendant viz. the alienor. Aggrieved the first defendant is on
Appeal.
9. We have heard Mr.P.Valliappan, learned Senior Counsel
appearing for Mr.Sriram Narayanan, for the appellant Mr. G.Arivarasan,
learned counsel appearing for the first respondent and
Dr.C.Ravichandran, learned counsel appearing for the second
respondent. The other respondents though served are not appearing
either in person or through counsel duly instructed.
10. Mr.Valliappan, learned Senior Counsel appearing for the
appellant would vehemently contend that the conclusion of the learned
Trial Judge that the properties are self-acquired properties is palpably
wrong. Drawing our attention to the judgment of this Court in The
Additional Commissioner of Income Tax, Madras-I v. P.L.Karuppan
Chettiar, reported in AIR 1979 Mad 1, the learned Senior Counsel
would contend that the property allotted to Kandhasamy at a
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partition between him and his brothers would be ancestral vis-à-vis
Kandhasamy and his son or daughter. If only a partition had taken place
between Kandhasamy and kailasamoorthy/the son, the property that was
allotted to Kandhasamy at such partition would be the self-acquisition of
Kandhasamy.
10.1. The learned Senior Counsel would also point out that the
judgment of the Full Bench of this Court in P.L.Karuppan Chettiar’s
case was approved by the Hon’ble Supreme Court in Yudhishter v.
Ashok Kumar, reported in 1987 (1) SCC 204, the judgment in
P.L.Karuppan Chettiar itself was confirmed by the Hon’ble Supreme
Court in Commissioner of Income Tax v. P.L.Karuppan Chettiar,
reported in 1993 Supp (1) SCC 580. Therefore, according to the learned
Senior Counsel, the law is settled on the character of the property in the
hands of Kandhasamy which was allotted to him at the partition between
him and his brothers. Therefore, the conclusion of the learned Trial Judge
that the property having been allotted at the partition that took place on
29.07.1959 between Kandhasamy and his brothers would have the effect
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of terminating the coparcenary and Kandhasamy would be the absolute
owner of the property is incorrect.
10.2. Arguing further the learned Senior Counsel would submit
that since Kandhasamy had died even in the year 1965, the claim of the
plaintiff to a share as a coparcener is a stale claim and therefore, it should
not be revived. The learned Senior Counsel would also rely upon Article
110 of the Limitation Act to contend that the suit is barred by limitation.
The next contention of the learned Senior Counsel is that the Hon’ble
Supreme Court in Vineeta Sharma V. Rakesh Sharma, reported in 2020
(9) SCC 1, as in paragraph 69 observed that in order that a daughter
would become a coparcener along with her father, the coparcenary must
have existed as on 09.09.2005. Drawing our attention to the facts of the
case where Kandhasamy died leaving behind his only son and two
daughters, as thelaw stood at the time of his death on 13.08.1965, the
coparcenary stood dissolved and there was no coparcenary and therefore,
the Amending Act would not apply.
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10.3. The learned Senior Counsel would also try to draw support
from para 70 of the judgment in Vineeta Sharma V. Rakesh Sharma,
which reads as follows:
70. Under the proviso to Section 6 before the
amendment made in the year 2005 in case a coparcener
died leaving behind female relative of Class I heir or a
male descendant claiming through such Class I female
heir, the daughter was one of them. Section 6, as
substituted, presupposes the existence of coparcenary. It is
only the case of the enlargement of the rights of the
daughters. The rights of other relatives remain unaffected
as prevailed in the proviso to Section 6 as it stood before
amendment.
10.4. According to the learned Senior Counsel, if para 70 of the
judgment in Vineeta Sharma V. Rakesh Sharma, is to be reckoned, then
the share of the mother Lakshmiammal should remain unaffected.
Therefore, according to him, wherever the share of the mother is affected
by making the daughter a coparcener with the Hindu father, the Act
would not apply.
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10.5. The learned Senior Counsel would also draw our attention to
the judgment of the Supreme Court in Prasanta Kumar Sahoo and
others v. Charulata Sahu and others, reported in 2023 (2) MWL(C)
100, wherein the Hon’ble Supreme Court has reiterated the position in
Vineeta Sharma V. Rakesh Sharma, to the effect that the coparcenary
must exist on 09.09.2005. The learned Senior Counsel would also draw
our attention to para 73, wherein it was observed that at a partition of the
coparcenary property between the Hindu father and the Hindu son, the
wife of the father as well as the widowed mother of the father would get
one share equal to that of a Hindu son or a daughter. Therefore,
according to the learned Senior Counsel, once the coparcenary is
terminated by the death of the Hindu father, the Amending Act would not
apply and therefore, the suit must fail. The learned Senior Counsel
would also press into service a judgment of the Two Judge Bench of the
Hon’ble Supreme Court dated 01.09.2023, wherein the Hon’ble Supreme
Court has held that the Hindu son would be entitled to a larger share.
11. Contending contra, Mr.G.Arivarasan and Dr.C.Ravichandran,
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would submit that even assuming the properties are held to be
coparcenary properties or ancestral properties, in view of the judgment of
the Larger Bench of the Hon’ble Supreme Court in Vineeta Sharma V.
Rakesh Sharma, the daughters would be entitled to an equal share and
therefore, even if the conclusion of the learned District Judge on the
character of the properties is held to be wrong, the final result viz. the
decree for 1/3rd share will have to be sustained, in view of the
pronouncement of the Larger Bench of the Hon’ble Supreme Court.
12. We have considered the rival submissions.
13. From the arguments advanced, the following points arise for
determination:
1)What is the character of the properties in the
hands of Kandhasamy Gounder?
2)Whether the death of Kandhasamy Gounder
terminates the Coparcenary;
3). Whether the suit is barred by limitation under
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Article 110 of the Limitation Act.
4)Whether the plaintiff would be entitled to a 1/3rd
share as claimed.
Point No.1:
14. As far as the first question is concerned, we are very clear that
the conclusions of the learned Trial Judge are incorrect. The learned
Trial Judge has proceeded on the footing that the property allotted to a
Male Hindu at the partition would become his self-acquisition. This
conclusion of the learned Trial Judge overlooks the settled position of
law regarding the character of properties in the hands of a Male Hindu.
The same question arose before this Court in The Additional
Commissioner of Income Tax, Madras I v. P.L.Karuppan Chettiar,
reported in AIR 1979 Mad 1, where the Full Bench concluded that the
property that is allotted to the Hindu son at the partition between the
Hindu father and the Hindu son would assume the character of ancestral
property vis-à-vis the Hindu son and his children. It was also held that
that the property that is allotted to the Hindu father at a partition between
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the Hindu son and the Hindu father would be his self-acquisition in his
hands and if it is inherited by the Hindu son on the death of the Hindu
father it would partake the character of self-acquisition in his hands also.
The question that was referred to the Full Bench is as follows:
Whether on the facts and in the circumstances
of the case, the Appellate Tribunal was right in
holding that the properties inherited by Karuppan
Chettiar from his divided father constituted his
separate and individual properties, and not the
properties of the joint family consisting of himself, his
wife, sons and daughters, and hence the income
therefrom is not assessable in the hands of the
assessee-Hindu undivided family?”
and the same was answered in the affirmative.
14.1. The facts in The Additional Commissioner of Income Tax,
Madras I v. P.L.Karuppan Chettiar,are as follows:
One Palaniappa Chettiar who along with his wife Anandavalli
Achi, their son Karuppana Chettiar and their daughter-in-law,
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constituted a Hindu undivided family. There was a partition in this
family on 22.03.1954, in and by which, Palaniappa Chettiar was allotted
certain properties for his share and he got separated. The partition was
recognized by the Income Tax Department under Section 25-A of the
Income Tax Act,1922. Thereafter, Karuppan Chettiar, the son, his wife
and their subsequently born sons and daughters constituted a Hindu
Undivided family and that Hindu undivided family was the assessee.
The properties that were allotted to Karuppan Chettiar at the
partition that took place on 22.03.1954, were shown as the properties
belonging to the Kartha viz. Karuppan Chettiar, who was also the
Manager of the Hindu Undivided Family. Palaniappa Chettiar died after
the commencement of the Hindu Succession Act on 09.09.1963 leaving
behind his widow Ananthavalli Achi and the only son Karuppan
Chettiar.Karruppan Chettiar inherited the property that were allotted to
Palaniappa Chettiar in the partition dated 22.03.1954 as a Class I heir
under Section 8 of the Hindu Succession Act, 1956.
When Karuppan chettiar wanted to have two assessments, one as
a HUF consisting of the properties that were allotted to him at a
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partition dated 22.03.1954 and the other as an individual as owner of
the properties that were inherited by him under Section 8 of the Hindu
Succession Act, on the death of his father Palaniappa Chettiar, the
Department refused to recognize it. The Department wanted to assess all
the properties together as the joint family properties of Karruppan
Chettiar which would be assessed at the hands of the HUF headed by
Karuppan Chettiar in which his wife and children were the members.
When this issue came up before this Court a reference was made under
Section 256(1) of the Income Tax Act, 1961 and the case was heard by a
Division Bench.
Upon reference by the Division Bench to the Full Bench, citing
conflicting opinions expressed by Guwahati High Court and Allahabad
High Court, the matter was placed before the Full Bench, where the Full
Bench answered the question referred to it as follows:
6. The question is whether when succession opens
under S. 8, Karuppan and his son will take the property in
the same manner. Clearly, this is not so. When we search
for the relatives mentioned in Class I of the Schedule,
which is attracted by virtue of S. 8, we find no son's sons
are mentioned at all though the grandson of a deceased
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son is mentioned. What would be the effect when such a
grandson comes into the picture need not be dealt with in
this case. But where the son as well as his son are the
persons concerned, by applying S. 8, we have to come to
the conclusion that the father alone, namely, Karuppan in
this case will inherit the property to the exclusion of the
grandson. This being the effect of the statutory provision,
no interest will accrue to the grandson in the property
which belonged to Palaniappa. Even, assuming
Palaniappa's property is ancestral property in the hands
of Karuppan, still because of the effect of the statute,
Karuppan's son will not have an interest in the property.
This is directly derogatory of the law established
according to the principles of the Hindu Law and this
provision in the statute must prevail in view of the un-
equivocal expression of the intention in the statute itself
which says that to the extent to which provisions had been
made in the statute, those provisions shall override the
established provisions in the texts of Hindu Law. This is
what M.N. Beg, J. as he then was, said in the decision in
Commissioner of Incometax v. Ram Rakshpal.
Commenting on this Divan, C.J. In Commissioner of
Incometaxv.Babubai Mansukhbai made the following
observations.
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“The Division Bench there held that in view of the
provisions of S. 6 and S. 8 of the Hindu Succession Act,
the old position no longer prevailed and the income from
assets inherited by a son from his father must be held to
be his individual and not the income of the Hindu
undivided family consisting of himself and his son. Main
reliance in support of this conclusion was placed by the
Allahabad High Court on the provisions of Ss. 6 and 8 of
the Hindu Succession Act. The Allahabad High Court
accepted the principle that if it had not been for the
Hindu Succession Act, on the death of a father whatever
was inherited by his son by way of succession became
ancestral property in the son's hands and this ancestral
property in the hands of the son belonged to the
coparcenary or the joint Hindu family consisting of the
son and his own male issue…”
After discussing the matter at some length the
learned Chief Justice observed at page 422—
“…With respect to the learned Chief Justice of the
Allahabad High Court, it is impossible to read into the
words of S. 8 any provision which inteferes with the
scheme of Hindu Law as it prevailed prior to the
enactment of the Hindu Succession Act. Neither S. 6 nor
S. 8 nor S. 30 affect this principle of Hindu Law as to in
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what capacity or in what character the son would enjoy
the property once he received it from his father in
succession”,
Proceeding further, the learned Chief Justice,
referred to a passage from Mullah's Principles of Hindu
Law, 14th Edn. edited by S.T. Desai. Illustration (a) at
page 849 of the Commentary is then extracted and the
learned Chief Justice agreed with the Commentary and
the Illustration., With very great respect, we are unable to
agree with the view expressed by the learned Chief
Justice. The passage quoted from the commentary did not
deal with the effect of S. 8 of the Act. What has been
illustrated also is the position under the Hindu Law
untrammelled by statutes, and it occurs in the
commentaries to S. 6 of the Act which deals with
survivorship, and the saving by S. 6 of that principle to
the extent to which it had been done. This passage is of no
assistance in determining the impact of S. 8 on the
principles of devolution of property on the death on the
principles of inheritance. We have dealt with the effect of
S. 8 earlier and it is clear that here Karuppan alone took
the properties of his father Palaniappa, which the latter
had obtained in the partition, and irrespective of the
question whether it was ancestral property in the hands
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of Karuppan or not, he would exclude his son. Since the
existing grand-son at the time of the death of the
grandfather has been excluded, we think that an after-
born son of Karuppan will also not get any interest which
Karuppan inherited from his father. Thus, the principles
of Hindu Law are not applicable. It is impossible to
visualise or envisage any Hindu undivided family in
regard to the property which Karuppan got. This is the
view that we have taken in the decision in The Additional
Commissioner of Income-tax, Madras-II v. V.R.A.
Manicka Mudaliar (died) and others, to which one of us
was a party. We respectfully agree with the view
expressed in that decision and answer the question
referred to us in the affirmative, i.e., in favour of the
assessee and against the Department. The Revenue will
pay the costs of the assessee including counsel's fee of Rs.
This judgment was approved by the Hon’ble Supreme Court in
Yudhishter v. Ashok kumar, reported in 1987 (1) SCC 204, and the
Appeal against the judgment in The Additional Commissioner of
Income Tax, v. P.L.Karuppan Chettiar, was also eventually dismissed
and the same is reported in 1993 Supp (1) SCC 580.
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14.2. In view of the above, categorical pronouncements of the
Hon’ble Supreme Court as well as the Full Bench of this Court, the
conclusion of the learned District Judge regarding the character of
properties in the hands of Kandhasamy which were allotted to him at a
partition that took place on 29.07.1959 between him and his brothers
would be only ancestral and not self-acquired.
Point No.2:
15. Once it is concluded that the properties are ancestral
properties, the next question that would arise is whether the plaintiff
would claim as a coparcener. According to the learned counsel
Mr.G.Arivarasan and Dr.C.Ravichandran, the issue is squarely covered
by the decision of the Hon’ble Supreme Court in Vineeta Sharma V.
Rakesh Sharma. Mr.P.Valliappan, learned Senior Counsel appearing for
the appellant, however, would make a valiant effort to persuade us to
deviate from the conclusions of the Hon’ble Supreme Court in Vineeta
Sharma V. Rakesh Sharma. He would by drawing our attention to para
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69 of the judgment in Vineeta Sharma V. Rakesh Sharma, where the
Hon’ble Supreme Court has held that the coparcenary must be shown to
be in existence on 09.09.2005, the learned Senior Counsel would submit
that on the death of Kandhasamy, the first defendant being the sole
surviving coparcener, the coparcenery ceased to exist and hence the
plaintiff cannot be allowed to contend that she would become a
coparcener with effect from 09.09.2005. He would however, concede
that the share of Kandhasamy in the coparcenary would devolve under
Section 8 of the Hindu Succession Act, 1956 on the mother, daughters
and the first defendant equally.
15.1. The learned Senior counsel would also our attention to
paragraph 70 of the judgment in Vineeta Sharma V. Rakesh Sharma,
where again the Hon’ble Supreme Court points out that the effect of the
Act is to only enlarge the rights of the daughters and the rights of the
other relatives would remain unaffected as provided in the proviso to
Section 6 as it stood before the amendment. The learned Senior Counsel
would point out that in the case on hand, if the shares of the daughters is
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enlarged, the share that vested in Lakshmiammal on the death of
Kandhasamy would necessarily reduce. Therefore, according to the
learned Senior Counsel, these contingencies will have to be taken into
account and the enlargement of the share of a daughter is not automatic.
It has to be subject to (i) the existence of the coparcenary as on
09.09.2005; and (ii) the same should not affect the share of the other
relatives, particularly the widow of the deceased.
15.2. The learned Senior Counsel would also rely upon Sub
Section 3 of Section 6 of the Hindu Succession Act, to contend that in
order to apply Sub Section 3, the death will have to be after the
commencement of the Hindu Succession Amendment Act, 2005 i.e.
09.09.2005. Assistance is also sought to be drawn from the judgment of
the Hon’ble Supreme Court in Prasanta Kumar Sahoo and others v.
Charulata Sahu, reported in 2023 (2) MWN (Civil) 100, wherein the
Hon’ble Supreme Court has reiterated the position that the coparcenary
must exist on 09.09.2005.
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15.3. The learned Senior Counsel would also seek to draw our
attention to paragraph 73 (B) of the judgement in Prasanta Kumar
Sahoo, to contend that the law as stated in the said paragraph is the law
relating to Bombay School of Mitakshara Law and not the Madras
School. As per the Madras School of Mitakshara Law, the share of the
widow will definitely be reduced if the share of the other coparceners is
enlarged and that was not contemplated by Act 39 of 2005.
15.4. Though the learned Senior Counsel would seek to rely upon
the another judgment of the Hon’ble Supreme Court in Derha v. Visha &
another, made in Civil Appeal No.4494 of 2010 dated 01.09.2023,
wherein the Hon’ble Supreme Court had applied the law as it stood prior
to the enactment of Act 39 of 2005, we do not think we can safely take
the judgment to be a precedent on the question of the right of a daughter
as per the Amending Act 39 of 2005, since we do not find any reference
to the Amending Act or the judgment in Vineeta Sharma V. Rakesh
Sharma, in the said case. No doubt, we find some force in the
submissions of the learned Senior Counsel, but we must concede that our
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hands are tied, in view of the categorical pronouncement of the Hon’ble
Supreme Court in Vineeta Sharma V. Rakesh Sharma, wherein the
reference was answered 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 the 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 the 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 the proviso to Section 6 of the Hindu Succession
Act, 1956 as originally enacted did not bring about
the actual partition or disruption of coparcenary. The
fiction was only for the purpose of ascertaining share
of deceased coparcener when he was survived by a
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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.
137.5. In view of the rigour of provisions of the
Explanation to Section 6(5) of the 1956 Act, a plea of
oral partition cannot be accepted as the statutory
recognised mode of partition effected by a deed of
partition duly registered under the provisions of the
Registration Act, 1908 or effected by a decree of a
court. However, in exceptional cases where plea of
oral partition is supported by public documents and
partition is finally evinced in the same manner as if it
had been affected (sic effected) by a decree of a court,
it may be accepted. A plea of partition based on oral
evidence alone cannot be accepted and to be rejected
outrightly.
15.5. Though it could be said that the coparcenary got dissolved on
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the death of Kandhasamy by virtue of the interpretation placed by the
Hon’ble Supreme Court on the provisions of the Amended Section 6, we
will have to assume that the coparcenary continued. We are therefore,
unable to countenance the submissions of the learned Senior Counsel
Mr.P.Valliappan. Hence Point No.2 is answered against the appellant.
Point No.3:
16. The next contention of the learned Senior Counsel is that is
based on Article 110 of the Limitation Act 1963. Article 110 of the
Limitation Act reads as follows:
Description of appeal Period of Time from which
Limitation period begins to run
110. By a person excluded from Twelve When the exclusion
a joint family property to years becomes known to the
enforce a right to share therein plaintiff
16.1. Of course, there is no plea in the written statement regarding
limitation, even then as mandated by Section 3 of the Limitation Act
1963, the Court is bound into look into the question of Limitation. The
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starting point of Limitation for Article 110 of the Limitation Act is the
date of knowledge of exclusion. In order to enable the defendant in the
suit for partition to invoke Article 110 of the Limitation Act dehors
ouster, it will have to be established that the right of the plaintiff was
denied to the knowledge of the plaintiff and the plaintiff did not sue for
partition for 12 years thereafter. No doubt, para 7 of the plaint is as
vague as vagueness can be, the plaintiff though says the first defendant
denied her share, she had not chosen to state that the date on which the
share was denied. We however, find that the defendant by his written
statement as lent a helping hand to the plaintiff to sustain the suit or to
wriggle out of the rigour of Article 110 of the Limitation Act.
16.2. The defendant has in fact admitted the right of the plaintiff to
the share of Kandhasamy which would devolve under Section 8 of the
Hindu Succession Act. That would mean that he never excluded the
plaintiff from the enjoyment of the properties or he never denied the
plaintiff’s share to at least a portion of the property at any point of time.
This would save the plaintiff and in fact aid the plaintiff to get over the
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question of Limitation under Article 110 of the Limitation Act.
Point No.4:
17. Once we conclude that the properties were ancestral properties
and the plaintiff is entitled to sue for partition despite her father having
died 50 years prior to the suit for partition, she would automatically be
entitled to a share as a coparcener which would be 1/3rd. It becomes
unnecessary for us to get into the Nitty Gritties of the partition to assume
a notional partition prior to the death of Kandhasamy allot 1/4 th share to
Kandhasamy, then again divide it between the four heirs of Kandhasamy
at 1/12 each and again divide the 1/12th share that Lakshmiammal would
be entitled to under Section 15 of the Hindu Succession Act 1956,
amongst her children viz. the plaintiff and defendants 1 and 2, since the
net result would be each one of them would be entitled to a 1/3rd share.
18. In fine we affirm the judgment and decree of the learned Trial
https://www.mhc.tn.gov.in/judis
Judge not for the same reasons assigned by the learned Trial Judge, we
conclude that the character of property in the hands of Kandhasamy was
ancestral and the plaintiff would be entitled to seek partition as a
coparcener after 09.09.2005. In fine, the Appeal is dismissed. However,
in the circumstances we make no orders as to costs. Consequently, the
connected miscellaneous petition is closed.
(R.SUBRAMANIAN, J .) (N.SENTHILKUMAR, J.)
21.11.2023
Index : Yes
Internet : Yes
Neutral Citation : Yes
Speaking order
jv
To
1. The I Additional District Court,
Coimbatore.
2. The Section Officer,
V.R.Section,
Madras High Court.
https://www.mhc.tn.gov.in/judis
R.SUBRAMANIAN, J.
and
N.SENTHILKUMAR, J.
jv
21.11.2023
https://www.mhc.tn.gov.in/judis
