Madras High Court
Vijaya vs Deivanai Ammal on 30 November, 2023
S.A.No.58 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 05.02.2024 Delivered on:16.02.2024
CORAM:
THE HONOURABLE MR. JUSTICE P.B.BALAJI
S.A.No.58 of 2018
and
C.M.P.No.1153 of 2018
Vijaya
W/o.Mannu Udaiyar ...Appellant
Vs.
1. Deivanai Ammal
W/o.Late Muthukrishnan Udaiyar
2. Selvi
W/o.Parasuraman ...Respondents
(Memo dated 30.11.2023 recorded)
R1 died. Appellant and R2 (already on record) are recorded as legal heirs of
the deceased R1 viz., Deivanai Ammal vide Court order dated 30.11.2023
made in S.A.No.58 of 2018
1/12
https://www.mhc.tn.gov.in/judis
S.A.No.58 of 2018
PRAYER:
Second Appeal filed under Section 100 of the Code of Civil Procedure,
against the Judgment and Decree of the learned District Judge,
Tiruvannamalai dated 29.02.2012 made in A.S.No.62 of 2001 in reversing
the well considered judgment and decree of the learned Principal Subordinate
Judge, Tiruvannamalai dated 18.04.2001 made in O.S.No.80 of 1994.
For Appellant : Ms.G.Sumithra
For Respondents : Mr.M.Himavanth
JUDGMENT
The plaintiff, who filed a suit for partition is the appellant.
2. The parties are described as per the litigative status before the trial
Court.
3. The material facts that are necessary for deciding the above Second
Appeal are as follows:
(i) The plaintiff is the daughter of the first defendant and
Muthukrishhna Udaiyar. The second defendant is the younger sister of the
https://www.mhc.tn.gov.in/judis
plaintiff. It is the case of the plaintiff that the defendants and the plaintiff are
the only surviving legal heirs of late Muthukrishna Udaiyar. According to the
plaintiff, the suit properties are all separate and self-acquired properties of
her father Muthukrishna Udaiyar and being the daughter, the plaintiff was
entitled to 1/3rd share. The suit was resisted by the mother / first defendant,
who filed a written statement stating that a son was born to her and
Muthukrishna Udaiyar on 11.12.1959. However, the said son died when he
was five years old in 1964, leaving behind the first defendant as his sole and
surviving legal heir under the provisions of the Hindu Succession Act, 1956.
The claim of the plaintiff that all the suit properties were separate and self-
acquired properties of Muthukrishna Udaiyar is also denied and in view of
the above, the first defendant sought for dismissal of the suit.
(ii) The first defendant also filed an additional written statement stating
that she had executed a last Will and Testament on 30.04.1996 bequeathing
her properties in favour of her younger daughter namely, the second
defendant. In view of the above, according to the first defendant, the
https://www.mhc.tn.gov.in/judis
plaintiff's suit was liable to be dismissed.
4. The trial Court, on appreciation of oral and documentary evidence
granted a preliminary decree of 1/3rd share in favour of the plaintiff in the suit
items 1 to 8, 10 to 33, 36 and 38. The said preliminary decree was
challenged by the defendants namely, mother and sister of the plaintiff in
A.S.No.62 of 2001. In the said appeal suit, the plaintiff filed a cross appeal in
respect of disallowed items.
5. The First Appellate Court set aside the judgment and decree of the
trial Court and modified the preliminary decree holding that the plaintiff was
entitled only to 1/6th share in respect of items 1 to 8, 10 to 32 and 37. The
Cross Appeal was partly allowed in respect of item No.37 alone, dismissing
the same in respect of item Nos.34 and 35.
6. Aggrieved by the judgment and decree of the First Appellate Court,
https://www.mhc.tn.gov.in/judis
the plaintiff is before this Court by way of second appeal. Pending the above
second appeal, it was brought to the notice of this Court that the first
respondent / mother passed away on 17.09.2023. In view of the appellant
and second respondent being the only legal heirs of the deceased first
respondent, the same was recorded by this Court and the counsel for
appellant and the second respondent were heard. The Second Appeal has not
yet been admitted.
7. On hearing learned counsel on both sides, I admit the second appeal
on the following substantial question of law:-
"Whether the judgment and decree of the First Appellate
Court holding that the suit properties were the joint family
properties at the hands of the father, Muthukrishna Udaiyar
can be sustained in the absence of any evidence adduced by the
defendants that the suit properties were purchased only out of
surplus income derived from the ancestral property?"
8. Heard Ms.G.Sumithra, learned counsel for the appellant and
https://www.mhc.tn.gov.in/judis
Mr.M.Himavanth, learned counsel for respondents.
9. Learned counsel for the appellant would primarily rest her case on
the Larger Bench Judgment of Hon'ble Supreme Court in Vineeta Sharma
case [Vineeta Sharma Vs. Rakesh Sharma and others reported in (2020) 9
SCC] and state that in view of the change in legal position, the daughters are
also to be treated as coparceners and even in the event of the properties being
held to be joint family properties, still the plaintiff would be entitled to an
equal share along with male coparcener namely, the son of Muthukrishna
Udaiyar, who died at the age of five years.
10. Per contra, Mr.M.Himavanth, learned counsel for the respondents
would submit that the First Appellate Court has confused itself with some of
the items of suit properties and also did not take into account the fact that
items 9, 33, 34, 35, 36, 38, 39 and 46 were not available for partition. He
would further state that the mother has admittedly, executed a Will
bequeathing her share in favour of her younger daughter namely, the second
https://www.mhc.tn.gov.in/judis
defendant and the mother has also spoken about the said Will and therefore,
subsequent to the demise of the first respondent, her share would stand
bequeathed to the second respondent alone. He would further state that in
view of the death of the son of the first respondent and Muthukrishna
Udaiyar at the age of 5 years, as a minor, being the only Class I legal heir of
the said minor son Vediyappan, his share would stand inherited only by the
mother and therefore, the claim of the plaintiff / appellant to 1/3rd share is
unsustainable.
11. In view of the legal position settled by Hon'ble Supreme Court in
Vineeta Sharma case, a daughter is now entitled to an equal share and is to
be treated on par with the son.
12. In view of the said legal position, the question as to whether the
properties were joint family properties or separate properties of Muthukrishna
Udaiyar pales into insignificance.
13. From the evidence on record, I am able to see that the defendants
https://www.mhc.tn.gov.in/judis
have established the birth of the son Vediyappan and also his death in the
year 1964. Therefore, his share would stand inherited by the mother / first
defendant. The first defendant has categorically stated that she has executed
her Will, disinheriting the plaintiff and bequeathing her share in all the
properties to the second defendant, her younger daughter. Thus, the plaintiff
cannot claim a share in the mother's property. Taking into account, the fact
that there has been no partition in the family earlier especially, during the
lifetime of minor son Vediyappan, applying the ratio laid down by Hon'ble
Supreme Court in Vineeta Sharma's case referred to supra, the plaintiff's
share will have to be accordingly arrived at.
14. No doubt, as rightly pointed out by the learned counsel for the
appellant, the defendants have not been able to prove the availability of
surplus income in order to apply the same towards purchase of the other
properties. As already stated, this does not affect the shares of the parties in
view of the dictum of the Hon'ble Supreme Court in Vineeta Sharma's case.
Moreover, I have also called upon learned counsel on either side to give a list
https://www.mhc.tn.gov.in/judis
of items that are available for partition since both learned counsel agreed that
the Courts below have confused the issues considering the fact that there are
several items of properties and there has been duplication of some of the items
of the suit properties.
15. From the gist of submissions filed by learned counsel for
respondents which was also accepted by learned counsel for appellant, it is
seen that the properties that are available for partition are only items 1 to 8,
10 to 32 and 37. The remaining items namely, items 9, 33, 34, 35, 36, 38, 39
and 46 are unavailable for partition. This factum is not denied by the learned
counsel for the appellant. Thus, the shares of the appellant / plaintiff in items
1 to 8, 10 to 32 and 37 is declared to be 1/4th share. The daughters namely,
the plaintiff and second defendant would become entitled to 1/4th share each.
The share of the minor son Vediyappan would stand inherited by the mother,
the first defendant and the mother's share gets enlarged to one 1/2 share. The
said one 1/2 share of the mother has been bequeathed under Ex.B22 dated
30.04.1996 in favour of the second defendant. Thus, the second defendant's
https://www.mhc.tn.gov.in/judis
share would get enlarged to 3/4th and the balance 1/4th share is the share of
the appellant.
16. In view of the above, the judgment and decree of the First Appellate
Court is hereby modified and there shall be a preliminary decree declaring the
appellant / plaintiff's share as 1/4th share in respect of items 1 to 8, 10 to 32
and 37 and in respect of other items, the Second Appeal stands dismissed.
17. The Second Appeal is partly allowed. Consequently, connected
miscellaneous petition is closed. There shall be no order as to costs.
16.02.2024.
Internet:Yes
Index:Yes/No
Neutral Citation:Yes/No
Speaking/Non-speaking order
mk
To
https://www.mhc.tn.gov.in/judis
1. The District Judge,
District Court,
Tiruvannamalai.
2. The Principal Subordinate Judge,
Sub-Court,
Tiruvannamalai.
P.B.BALAJI, J.,
https://www.mhc.tn.gov.in/judis
mk
16.02.2024
https://www.mhc.tn.gov.in/judis
