Citation : 2025 Latest Caselaw 5660 Mad
Judgement Date : 3 April, 2025
SA Nos.1406 of 1999 and 2234 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 03/04/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA Nos.1406 of 1999 and 2234 of 2003
and
CMP No.21039 of 2003
(1)SA No.1406 of 1999
1.Meenal (Died)
2.P.Arumugam Ammal (Died) : Appellants 1 and 2/
R1 and R2/Plaintiffs
3.Govindan
4.Kala
5.Vasuki : Appellants 3 to 5/
(Appellants 3 to 5 LR.s of the deceased A2
are brought on record
as LR.s of the deceased
second appellant, vide Court
order, dated 18/01/2005
made in CMP No.10 of 2005)
6.Arumugam : 6th Appellant/LR of
the deceased A1
(6th Appellant is brought on
record as LR of the deceased
1st appellant, vide Court order,
dated 09/07/2021 made in CMP(MD)
Nos.3173 to 3175 of 2021 in
SA No.1406 of 1999)
Vs.
1.Panchammal : 1st Respondent/
Appellant/
4th defendant
2.Mariyappan
3.Ramayee (Died)
4.Ramachandran (Died)
5.Periyannan
1/23
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm )
SA Nos.1406 of 1999 and 2234 of 2003
6.Sivagangai Municipality,
rep. by its Commissioner,
Sivagangai. : Respondents 2 to 6/
Respondents 3 to 7/
Defendants 1,2,3, 5 and 7
7.A.Panju
(R7 deleted as per Court
order, dated 18/02/2022
made in CMP(MD)No.8091 of 2021
in SA No.1406 of 1999)
8.V.Murugan
9.N.Chokki
(Respondents 7 to 9 are
brought on record as LR.s
of the deceased 3rd respondent,
vide court order, dated 21/04/2022
made in CMP(MD)Nos.1915, 1917 and
1919 of 2022 in SA No.1406 of 1999
10.Tmt.Valli
11.Rojappu (Died)
12.Subramani
(Respondents 10 to 12 are brought
on record as LR.s of the deceased
4th respondent, vide Court order,
dated 21/04/2022 made in CMP(MD)
Nos.9753, 9754 and 9755 of 2018
in SA No.1406 of 1999)
13.Padma
14.Parameswari
15.Kirupa
16.Marimuthu : Respondents 7 to 16
Respondents 13 to 16 are brought
on record as LR.s of the deceased
11th respondent, vide court order,
dated 21/04/2022 made in CMP(MD)
Nos.8092, 8094 and 8095 of 2021
in SA No.1406 of 1999)
PRAYER:-Second Appeal is filed under Section 100 of
the Civil Procedure Code, against the judgment and decree
made in AS No.47 of 1998 on the file of the Subordinate
Judge at Sivagangai, dated 25/01/1999 modifying the
judgment and decree made in OS No.451 of 1994 on the file
of the Additional District Munsif Court at Sivagangai,
dated 03/03/1997, thereby declaring 2/15 share of the
plaintiffs for passing preliminary decree.
2/23
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm )
SA Nos.1406 of 1999 and 2234 of 2003
For Appellants : Mr.S.Srinivasa Raghavan
For 1st Respondent : Mr.P.Saravanan
for Mr.A.Sivaji
For R2, R5, R6, R13
to R16 : No appearance
For R3, R4 and R11 : Died (Steps Taken)
For R8 to R10 & R12 : Mr.N.Tamil Mani
2.SA No.2234 of 2003:-
Panjammal : Appellant/Appellant/
4th defendant
Vs.
1.Meenal (Died)
2.Arumugam Ammal (Died) : Respondents 1 and 2/
Respondents 1 and 2/
Plaintiffs
3.Mariappan
4.Ramayee (Died)
5.Ramachandran (Died)
6.Periannan
7.Sivagangai Municipality,
by its Commissioner,
Sivagangai. : Respondents 3 to 7/
Respondents 3 to 7/
Defendants 1,2,3,5 and 6
8.Arumugam
(8th respondent is brought on
record as LR of the deceased
1st respondent, vide court order,
dated 04/08/2023 made in CMP(MD)
Nos.5381 to 5392 of 2023 in
SA No.2234 of 2023)
9.Govindan
10.Kala
11.Vasuki
(Respondents 9 to 11 are brought
on record as LR.s of the deceased
2nd respondent, vide Court order,
dated 04/08/2023 made in CMP(MD)
Nos.5381 to 5392 of 2023 in SA
No.2234 of 2003)
3/23
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm )
SA Nos.1406 of 1999 and 2234 of 2003
12.A.Panju
13.N.Chokki
14.Bhuvaneswari
15.Manikandan
16.Selvi
(Respondents 12 to 16 are brought on
record as LR.s of the deceased 4th
respondent, vide Court order, dated
04/08/2023 made in CMP(MD)Nos.5381 to
5392 of 2023 in SA No.2234 of 2003)
17.Valli
18.Subramani
19.Padma
20.Parameswari
21.Kirupa
22.Marimuthu : Respondents 8 to 22
(Respondents 17 to 22 are brought on
record as LR.s of the deceased 5th respondent,
vide Court order, dated 04/08/2023 made in
CMP(MD)Nos.5381 to 5392 of 2023 in
SA No.2234 of 2003)
PRAYER:-Second Appeal is filed under Section 100 of
the Civil Procedure Code, against the judgment and decree
in AS No.47 of 1998 on the file of the Sub Court,
Sivagangai, dated 25/01/1999 modifying the judgment and
decree in OS No.451 of 1994 on the file of the Additional
District Munsif Court, Sivagangai, dated 03/03/1997.
For Appellant : Mr.P.Saravanan
for Mr.A.Sivaji
For R1, R2, R4 & R5 : Died (Steps taken)
For R3, R6, R12 to R22 : No appearance
For 7th Respondent : Mr.A.Kathiravan
(No appearance)
For R8 to R11 : Mr.S.Srinivasa Raghavan
4/23
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm )
SA Nos.1406 of 1999 and 2234 of 2003
COMMON JUDGMENT
SA No.1406 of 1999 is filed against the judgment and
decree passed in AS No.47 of 1998 by the Sub Court,
Sivagangai, dated 25/01/1999 modifying the judgment and
decree passed in OS No.451 of 1994 by the Additional
District Munsif Court, Sivagangai, dated 03/03/1997,
thereby declaring 2/15 share of the plaintiffs passed
preliminary decree, Whereas SA No.2234 of 2003 has been
preferred against the judgment and decree passed in AS
No.47 of 1998 by the Sub Court, Sivagangai, dated
26/01/1999 modifying the judgment and decree passed in OS
No.451 of 1994 by the Additional District Munsif Court,
Sivagangai, dated 03/03/1997.
2.The plaint averments:-
The suit property originally belongs to Chinnaiah
Konar. He had 4 sons by name Ramasamy, Subramanian,
Ramachandran and Alagarsamy and 3 daughters by name
Ramayee, Meenal and Arumugam Ammal. The first plaintiff
is Meenal. The second plaintiff is Arumugam Ammal.
Subramanian died even before the marriage without issues.
Ramasamy died leaving behind his wife as his legal-heir.
The second defendant is Ramayee. Whose daughter is the 4th
defendant namely Panjammal. She was married to
Alagarsamy, who was examined as PW3 on the side of the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
plaintiffs. Another son Ramachandan is the third
defendant. Alagarsamy gone on adoption to Alagu Konar,
who was examined on the side of the defendants. So,
Alagarsamy had no share in the property.
3.On the western side of the property, the second
plaintiff put up a thatched shed and residing. Because of
some issues, the plaintiffs are not willing to possess
the property jointly. So, the suit is filed for partition
and separate possession of 2/5th share.
4.The 4th defendant has no independent right or share
in the property. She proclaimed that she purchased a
portion of the property from the first and third
defendants. She put up two shops around January 1999 in
the suit property. Prayer is sought for in the plaint to
remove the structure in the 4th defendant's property.
Similarly, the 5th defendant, who has no right over the
property, encroached a portion of the property around
1993 and put up tiled structure. So, prayer is sought for
amending 2/5th share, costs.
5.The defendants 1, 2, 3 and 5 remained ex-parte
before the trial court. Only the 4th defendant namely
Panjammal contested the case.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
6.The statement filed by her:- It is admitted that
the suit property originally belongs to Chinnaiah Konar
ancestrally. The relationship between the parties is
admitted. Out of the earnings from the ancestral
properties, Chinnaiah Konar arranged marriage for the
plaintiffs 1 and 2. So, they have no share in the
property. After the death of Chinnaiah Konar, the male
members namely Ramasamy, Subramanian, Ramachandran and
Alagarsamy jointly enjoyed the property. Later,
Subramanian died without any marriage and issues, so also
Ramasamy. So, the properties of Chinnaiah Konar were
divided between Ramachandran, Alagarsamy and Mariappan
the first defendant herein, enjoyed the property
separately as per separate division.
7.As per the partition, the western portion was
allotted to the first defendant Mariappan. Central
portion to Ramachandran, eastern portion to Alagarsamy.
She purchased the western portion allotted to Mariappan,
on 21/03/1985. Similarly, the central portion from
Ramachandran, on 22/06/1984. After purchase, she
constructed two shops and let out the same to one
Periyannan. The portion allotted to Alagarsamy is now in
the enjoyment of the 4th defendant. It was given to her by
Alagarsamy. So, the entire properties belong to the 4th
defendant.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
8.Adoption pleaded in the plaint is not true.
Alagarsamy is a necessary party and the suit is bad for
non-joinder of necessary parties.
9.The second plaintiff's husband was dead. So, she
became helpless. On that consideration, the 4th defendant
permitted the second plaintiff to put up a thatched house
on the western portion for her occupation on rent. But
the second plaintiff did not pay the rent properly.
Later, she executed an undertaking letter, on 14/11/1991
to vacate the premises on or before 15/05/1992. But
against that undertaking, the second plaintiff did not
vacate the premises.
10.On the basis of the pleadings, the following
issues were framed by the trial court:-
(1)Whether the plaintiffs are
entitled to get any share in the suit
property?
(2)Whether the suit is bad for non-
joinder of necessary parties?
(3)Whether the plaintiffs are
entitled to the relief of partition as
prayed for?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm )
SA Nos.1406 of 1999 and 2234 of 2003
(4)Whether the plaintiffs are
entitled to the relief of injunction as prayed for?
(5)Whether the plaintiffs are
entitled to the relief of permanent
injunction as prayed for?
(6)To what other relief, the
plaintiffs are entitled to?
11.On the side of the plaintiffs, 3 witnesses were
examined and 4 documents marked. On the side of the
defendants, 4 witnesses were examined and 34 documents
marked. The Commissioner's report and plan were marked as
Exs.C1 and C2.
12.The trial court, on appreciation of facts decreed
the suit in-part and a preliminary decree for partition
was passed in respect of 2/6th share in the first item; In
respect of 2nd and 3rd items, it was ordered that during
the course of the final decree proceedings, that portion
must be allotted to the 4th defendant; In respect of other
prayers, the suit was dismissed.
13.Against which, appeal was preferred by the 4th
defendant before the Sub Court, Sivagangai, in AS No.47
of 1998. The appellate court allowed the appeal in-part
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
modifying the preliminary decree for partition that the
plaintiffs are entitled to get 1/15th share. In respect of
the other prayers, the judgment and decree of the trial
court were confirmed.
14.Against which, these two separate appeals are
preferred. One by the 4th defendant in SA No.2234 of 2003.
Aggrieved over the allotment of the shares, the
plaintiffs preferred SA No.1406 of 1999.
15.At the time of admitting SA No.1406 of 1999, the
following substantial question of law was framed:-
(1)Whether the judgment and decree of the Lower Appellate Court declaring 2/15th share to the plaintiffs without considering the case in terms of provisions contained in Hindu Succession (T.N.Amendment) Act, 1989 (Act 1/90) constitutes error of law and render same as invalid or not?”
16.In respect of SA No.2234 of 2003, the following
substantial question of law was framed at the time
admission:-
“Is not the Lower Appellate Court committed error in law in holding hat PW3 the husband of the appellant has gone in adoption and consequently, he is not
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
entitled to any share in the property in view of his release orally as PW3?”
17.Heard both sides.
18.For convenience sake, we will take up SA No.2234
of 2003 for consideration first.
19.A peculiar plea is taken by the parties in
respect of this substantial question of law.
20.PW3 is one of the sons of Chinnaiah Konar. Now
he says in his evidence that he went in adoption to his
Paternal Aunt when he was very young. So, being the
adopted son, he is not entitled for any share in his
father's property. In effect, he supported the case of
the plaintiffs, who are his sisters.
21.Per contra, on the side of the contesting 4th
defendant namely the wife of PW3 Alagarsamy, the adoptive
father was examined as DW2. He would say that PW3
Alagarsamy was never taken in adoption by him. The trial
court recorded a finding that since DW2 has denied the
taking of adoption, that fact was not established by the
plaintiffs. But no issues were framed in respect of this
issue by the trial court.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
22.But the appellate court differed from the finding
stating that since PW3 himself admits the fact of
adoption, nothing more is required to be proved by the
plaintiffs. On that ground, it differed from that view.
23.Now on that account, this substantial question of
law is framed. No doubt that admission is the best piece
of evidence. But at the same time, admission can be
proved to be wrong. Only on that basis, it appears that
the 4th defendant examined DW2 on her side. But reading of
the evidence of DW2 does not inspire any confidence at
all. On the date of his examination, he admits that he
was under the care of the 4th defendant's daughter, which
means that he was under the custody of the 4th defendant.
For many of the questions, he answered in the negative.
He would admit that funeral rites to his wife namely
Valli was performed only by Alagarsamy (PW3). But he has
added a rider that since because, PW3 is the son of her
wife's sister, it might have been performed by him. So,
DW2's evidence was rightly not considered by the
appellate court.
24.The correct date of adoption is not known. But it
is stated by PW1 that when PW3 was very young, he went in
adoption. As per the Hindu Adoptions and Maintenance Act,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
1956, no particular form of adoption is prescribed. The
only condition, which now applies to the present case is
that it is admitted by DW2 himself that they had no
issues, which means that the Aunt of PW3 and DW2 had no
children. So, in all probability, as mentioned by PW3,
who was taken adoption by DW2. But for obvious reasons,
DW2 wants to support the case of the 4th defendant. So,
the recording of the finding by the appellate court that
PW3 went in adoption in view of the specific admission
made by him requires no other evidence, requires no
interference.
25.We can go further deeper into the evidence of
PW3. During the course of cross examination, a suggestion
was made by the 4th defendant that since because, DW2 and
his wife did not have any male child, he was taken by
them, but never adopted. So, this suggestion itself is
sufficient enough to show that DW2's evidence is reliable
as stated above. Now, the adoption is disputed after 50
years. PW3 would say that he was aged about 50 on the
date of his examination. Adoption is challenged by his
wife and not by others. So, this itself is sufficient
enough to show that presumption can be drawn that
actually, he was given in adoption and taken by DW2.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
26.Now coming to the effects of adoption, section 12
of the Hindu Adoptions and Maintenance Act, 1956 reads as
follows:-
“12.Effects of adoption.-An adopted
child shall be deemed to be the child of
his or her adoptive father or mother for
all purposes with effect from the date of
the adoption and from such date all the
ties of the child in the family of his or
her birth shall be deemed to be severed and
replaced by those created by the adoption
in the adoptive family:
Provided that-(a) the child cannot
marry any person whom he or she could not
have married if he or she had continued in
the family of his or her birth;
(b)any property which vested in the
adopted child before the adoption shall
continue to vest in such person subject to
the obligations, if any, attaching to the
ownership of such property, including the
obligation to maintain relatives in the
family of his or her birth;
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
(c) the adopted child shall not divest
any person of any estate which vested in
him or her before the adoption.”
27.So, for all practical purposes, PW3 is severed
from Chinnaiah Konar's family and properties. Only after
the death of Chinniah Konar, the succession might have
opened, but PW3 went on adoption even before that. So, he
is not entitled for any share in the property, as
admitted by him. So, the 4th defendant cannot take up
this plea, more specifically, when PW3 himself has
disowned in connection to the suit property. So, this
substantial question of law does not arise at all and
recording of finding by the appellate court is confirmed.
28.The learned counsel appearing for the appellants
in SA No.1406 of 1999 would submit that PW3 Alagarsamy
got a share and the suit filed without impleading him as
a party is bad for non-joinder of necessary party and for
that purpose, he would rely upon the judgment of the
Hon'ble Supreme Court reported in A.Ramachandra Pillai
Vs. Valliammal (died) and others (1983 0 Supreme (Mad)
138).
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
29.Reading of the evidence of PW3 and DW1 does
indicate that some sort of matrimonial issue between them
and got separated for several years and living
separately. The 4th defendant came down to the suit
village and started living separately, purchasing the
share of others. Here, the contention that PW3's share
was given to her in lieu of maintenance is also without
any evidence and that has been raised for the sake of
defence.
30.Equally, it is seen that after the cordial
relationship between the plaintiffs and the 4th defendant
broke down and having allowed the 4th defendant to put up
a construction in the properties, the suit is filed. So,
rightly the trial court observed that during the final
decree proceedings items No.2 and 3, which form part of
the first item must be allotted to the share of the 4th
defendant, since she purchased the same from the first
defendant and Ramachandran. But the appellate court has
not touched that point. So, in view of the above said,
that observation must also be restored to file. During
the final decree proceedings, the final decree Court must
take not of the observation and pass orders accordingly.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
31.Now coming to the issue in SA No.1406 of 1999, in
the grounds of appeal, the invocation of Hindu Succession
(Tamil Nadu Amendment) Act, 1985 (Act 1/90) is invoked.
But in the plaint, the plaintiffs have stated that they
are entitled to get 1/5th share equally.
32.It is admitted by both sides that the suit
property originally belongs to them. It is stated in the
plaint that the property belongs to Chinnaiah Konar. But
it is not stated whether it belongs to him ancestrally or
it is self-acquired property.
33.The statement reads that the property originally
belongs to Chinnaiah Konar ancestrally. In view of the
fact that there is no evidence on record to show that the
property belongs to Chinnaiah Konar as self-acquired
property, the appellate court has drawn a presumption
that it is an ancestral property. In view of the above
said, the court has recalculated the share, since there
is no evidence on record to show the Chinnaiah Konar's
correct date of death. But one of the sons namely
Subramanian reported to be dead in 1976. The appellate
court has stated that the property by notional partition
will come around 1/3rd share each to Chinnaiah Konar,
Ramasamy and the third defendant Ramachandran. Chinnaiah
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
Konar's 1/3rd share must be divided among his Class-I
legal heirs. By that way, each is entitled for 1/15 th
share. So, the plaintiffs are entitled for 1/15th share
each. Now in the grounds of appeal, the benefit under
Tamil Nadu Amendment Act is claimed. For claiming the
benefit under the provision of the Tamil Nadu Amendment
Act, the following conditions must be satisfied. The
daughter, who is married before the commencement of the
Act, she is not entitled. Similarly, if the partition is
effected before commencement of the Act, the daughter is
not entitled to equal share with that of the son. The
trial court has taken the share as 1/6th share equally to
sons and daughters.
34.We will take up the second condition. According
to the 4th defendant, after the death of Chinnaiah Konar,
the property was divided orally between the sons and by
which, allotment of the portions were taken place as
mentioned in the written statement. To prove the same,
she has produced the sale deeds obtained from the first
defendant Mariappan and Ramachandran under Exs.B1 and B2.
Wherein we find that reference is made to the partition
and allotment of portions. But to prove the same, except
the recitals in Exs.B1 and B2, no other evidence was
produced by the 4th defendant. On her side, DW1 was
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
examined to say that there was oral partition. But the
evidence of DW2 is rejected by me, since it does not
inspire any confidence. On the side of the plaintiffs, it
is stated that no partition took place, as mentioned in
Exs.B1 and B2. No steps were taken by the 4th defendant to
summon the first defendant and Ramachandran to show the
execution. Mere production of Exs.B1 and B2 will not show
that partition was made orally. So, the second condition
mentioned in the above said Act is not satisfied.
35.Regarding the first aspect of marriage before the
introduction of the Act, absolutely there is no evidence.
PW1, the second plaintiff has not stated anything about
her marriage by mentioning the year. But stated that her
husband died 30 years back. She was examined as a witness
in 1996. If calculated 30 years, it will come around
1966. So, she would have been married before 1966, which
means that her marriage took place before the
introduction of the Act. So, without proper pleadings, it
appears that this ground has been raised in the second
appeal.
36.Perusal of the records shows that Exs.B29 and B30
the house tax receipts were standing in the name of the
Chinnaiah Konar, which means that Chinnaiah Konar was
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
alive during 1989-1990 and died later. Naturally, even
though, there is no clear evidence on both sides with
regard to the correct date of death of Chinnaiah Konar,
as per section 6 of the Hindu Succession Act, 1956,
national partition must be deemed to have been effected.
So, the Tamil Nadu Amendment Act will not apply, only
Central Act will apply. PW3 Alagarsamy also went in
adoption. On the date of the death of Chinnaiah Konar, 3
female legal-heirs namely Ramayee, Meenal and Arumuga
Ammal were alive. So, as indicated by the appellate
court, Ramasamy, Ramachandran and Chinnaiah Konar each
entitled to get 1/3rd share. 1/3rd share left by Chinniaah
Konar again to be divided equally by Ramasamy, Ramayee,
Ramachandran, Meenal and Arumuga Ammal, which means that
all are entitled to get 1/15th share equally.
37.Even though, the appellate court has made
calculation as per law prevailing then, now in view of
the Amendment of Succession Act, 2005, the entire
scenario has changed. In view of the judgment of the
Hon'ble Supreme Court in VINEETA SHARMA Vs. Rakesh Sharma & Others
(AIR 2020 SUPREME COURT 3717), the daughter become the coparcener
on the date of her birth. The date of death of the
coparcener does not assume importance. So, she is
entitled to get equal share along with the son subjected
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
to two conditions. One condition is that the right will
not be available if the partition was already effected in
the coparcener. Second, it will not affect the alienation
made. Here, as mentioned above, absolutely, there is no
evidence on record to show that either at the time of
Chinnaiah Konar alive or after his death, there was
partition between the members. The oral partition
mentioned in the sale deed effected in favour of the 4th
defendant is not proved by any independent witness. The
evidence of DW2 was already rejected by me. So, for all
practical purpose, it must be construed that there was no
partition before the Amendment Act came into force.
Similarly, the sale made by the defendants 1 and 3 in
favour of the 4th defendant will not affect the right of
the plaintiffs to get their due share. Since the
plaintiffs are entitled equal share along with the son,
then, as mentioned above, in the plaint, they are
entitled for 1/6th share independently. Totally, they are
entitled to 2/6th share. So, the judgment and decree of
the appellate court is set aside and the judgment and
decree passed by the trial court declaring that the
plaintiffs are entitled to 2/6th share jointly is
restored, of course, subject to the above observations.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm ) SA Nos.1406 of 1999 and 2234 of 2003
38.In the result, SA No.1406 of 1999 is allowed, by
setting aside the judgment and decree of the appellate
court and the decree and judgment passed by the trial
court declaring that the plaintiffs are entitled for 2/6th
share jointly is restored, of course subject to the above
said observation. SA No.2234 of 2003 filed by the 4th
defendant Panjammal is dismissed. No costs. Consequently
connected CMP is closed.
Index:Yes/No
Internet:Yes/No
er 03/04/2025
To,
1.The Additional District Munsif,
Sivagangai,
2.The Sub Judge,
Sivagangai.
3.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm )
SA Nos.1406 of 1999 and 2234 of 2003
G.ILANGOVAN, J
er
SA Nos.1406 of 1999 and 2234 of 2003
03/04/2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 06:31:36 pm )
Publish Your Article
Campus Ambassador
Media Partner
Campus Buzz
LatestLaws.com presents: Lexidem Offline Internship Program, 2026
LatestLaws.com presents 'Lexidem Online Internship, 2026', Apply Now!