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Madras High Court
Kasthuri vs Kausalya on 8 April, 2026
SA Nos.886 & 887 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 30-03-2026 / 06-04-2026
PRONOUNCED ON : 08-04-2026
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
SA Nos.886 & 887 of 2010
S.A.No.886 of 2010
Kasthuri … Appellant/Plaintiff
Vs.
1.Kausalya … 1st respondent/1st defendant
2.A.Munusamy (died) … 2nd respondent/2nd defendant
3.Kalpana
4.Deepika
5.Priyanka
6.Rohit
7.Ramya … 3rd to 7th respondents/Legal Heirs of
deceased 2nd respondent.
Respondents 3 to 7 brought on record as LRs of the deceased 2 nd
respondent viz., A.Munusamy, vide Court [PTAJ] order dated 29.06.2021
made in CMP Nos.1517 & 1518 of 2021 in SA Nos.886 and 887 of 2010.
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree of the learned Additional
District Judge (Fast Track Court No.II), Poonamallee, dated 19.10.2009
in A.S. No.83 of 2007 confirming the Judgment and Decree of the
learned Subordinate Judge, Poonamallee, dated 30.10.2006 in O.S.
No.165 of 1999.
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For Appellant: Ms.R.V.Rukmani
For Respondents: Mr.R.Thirugnanam (for R3 to R7)
R1-Ex parte
(vide Court order dated 19.01.2022)
R2-Died
Kasthuri … Appellant/Plaintiff
Vs.
1. A.Munusamy (died) … 1st respondent/2nd defendant
2. Kausalya … 2nd respondent/1st defendant
3. Kalpana
4. Deepika
5. Priyanka
6. Rohit
7. Ramya … 3rd to 7th respondents/Legal Heirs of
deceased 1st respondent.
Respondents 3 to 7 brought on record as LRs of the deceased 1 st
respondent viz., A.Munusamy, vide Court [PTAJ] order dated 29.06.2021
made in CMP Nos.1517 & 1518 of 2021 in SA Nos.886 and 887 of 2010.
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree of the learned Additional
District Judge (Fast Track Court No.II), Poonamallee, dated 19.10.2009
in A.S. No.34 of 2007 reversing the Judgment and Decree of the learned
Subordinate Judge, Poonamallee, dated 30.10.2006 in O.S. No.165 of
1999.
For Appellant: Ms.R.V.Rukmani
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For Respondents: R1-Died (steps taken)
Mr.R.Thirugnanam (for R3 to R7)
R2-Ex parte
(vide Court order dated 19.01.2022)
Common Judgment
Aggrieved by the judgment and decree in AS No. 34 of 2007 and
AS No. 83 of 2007 on the file of the learned Additional District Judge,
(FTC-II), Poonamallee, the plaintiff in OS No. 165 of 1999 on the file of
the learned Subordinate Judge, Poonamallee, has preferred the above
Second Appeals.
2. For the sake of convenience, the parties are referred to as per
their ranking before the trial Court.
3. The facts leading to the filing of the appeals are as follows:
(i) The appellant in both appeals is the plaintiff in OS No. 165 of
1999. The deceased-A.Munusamy, who was the second respondent in
S.A.No.886 of 2010 and the first respondent in S.A.No.887 of 2010, was
the second defendant in the suit. One Kausalya, who is the first
respondent in S.A.No.886 of 2010 and the second respondent in
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S.A.No.887 of 2010, was the first defendant in the suit. Respondents 3 to
7 are the legal representatives of the above said deceased-A.Munusamy.
(ii) The plaintiff, the deceased Munusamy, and Kausalya are the
children of one Angusamy and Andalammal. Andalammal was originally
shown as the third defendant in the suit and pending the trial, she passed
away.
(iii) It is the plaintiff's case that late Angusamy held ancestral
properties which were described in Sl.Nos.1 to 12 in Item No.1 of the suit
schedule properties; that he had purchased three properties which are
described in Item No.2 of the suit schedule properties, in the name of her
mother Andalammal; that the deceased second defendant-A.Munusamy
and the said Andalammal, after the demise of Angusamy, claiming
exclusive right over all the properties of Angusamy and Andalammal, had
alienated a few properties and had failed to provide the share of the
plaintiff; and hence, she is entitled for a decree for partition and separate
possession of her one-third share in the suit schedule properties.
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(iv) The second defendant filed the written statement stating that
the properties listed in Item No.1 of the suit schedule properties were
ancestral properties; that he and his father, late Angusamy, were the only
coparceners; that late Angusamy had executed a Will in respect of his
undivided half share in the suit schedule properties on 18.01.1986 and as
a result of which his two daughters (plaintiff and the first defendant) were
not entitled to any share in the ancestral properties; that all the properties
were treated as absolute properties of the second defendant and he had
sold most of the properties; and that the properties described in Item No.2
of the suit schedule properties absolutely belonged to his mother late
Andalammal and she had sold the properties while she was alive and
there is no property available for partition.
(v) The first defendant Kausalya remained ex parte in the suit. The
third defendant, Andalammal, adopted the written statement filed by the
the second defendant. She died during the trial.
(vi) The trial Court framed three issues:
i. Whether the suit properties are the ancestral properties of late
Angusamy?
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ii. Whether the plaintiff was in possession of the suit
properties? and
iii. Whether the plaintiff was entitled to one-third share in the
properties?
(vii) The trial Court found that the properties described in Item
No.1 are ancestral properties; that the Will said to have been executed by
Angusamy in respect of his half-share in the said properties, has not been
proved; that certain properties in Item No.1, namely Sl.Nos 4, 8 to 10,
were sold even prior to the institution of the suit and the purchasers were
not made parties to the suit.
(viii) The trial Court found that since the Will has not been proved
Angusamy's half-share must devolve equally by succession upon all the
three children and held that the plaintiff is entitled to one-sixth share in
Sl.No.1, 2, 3, 6, 7, 11, and 12 in Item No.1 of the suit schedule properties.
As regards Item No.2 of the suit schedule properties, the trial Court held
that the property mentioned in Sl.No.3 has already been sold and the
plaintiff is entitled to one-third share in the properties mentioned in
Sl.Nos.1 and 2.
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(ix) The plaintiff aggrieved by the rejection of her claim in respect
of certain properties filed A.S.No.83 of 2007 before learned Additional
District Judge [FTC-II], Poonamallee. The second defendant aggrieved
by the decree in respect of certain properties as stated above had filed
A.S.No.34 of 2007.
(x) The first appellate Court found that the Will which was marked
as Ex.B13 has been proved by the second defendant by examining DW2,
an attestor; that the plaintiff had not filed a reply statement denying the
execution of the Will; that she had not taken any steps to question the
signature affixed in the Will; that since the Will has been proved and
since the properties are ancestral properties, Angusamy and Munusamy
were the coparceners and that the properties absolutely belonged to the
second defendant.
(xi) As regards the Item No.2 of the suit schedule properties, the
first appellate Court held that the properties are the self-acquired
properties of the deceased Andalammal; that she had sold all the
properties during her lifetime, that no evidence was let in by the plaintiff
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to show that the said property is still available for partition and hence, the
plaintiff is not entitled to a portion of the said properties.
(xii) The first appellate Court hence allowed A.S.No. 34 of 2007
and dismissed A.S.No.83 of 2007. The plaintiff has preferred the above
second appeals challenging the common judgment passed in both the
appeals.
4. When the second appeals were admitted, the following
substantial questions of law were framed by this Court.
“a. Was the first appellate Court right in declining relief of
partition to the appellant, in her father’s estate on the ground of
limitation?
b. Was the first appellate Court right in holding that the plaintiff
was ousted from the suit properties merely on the ground that she was
not in physical possession of the same?
c. Were the Courts below right in brushing aside the effect of
Act 39 of 2005, amendment to the Hindu Succession Act, giving equal
right to daughters along side sons?
d. Is not the findings of the first appellate Court perverse and
illegal in misappreciating the evidence on record and to hold that the
alleged Will was not disputed by the appellant which is totally contrary
to the evidence of P.W.1?
e. Was the first appellate Court right in setting aside the finding
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of the trial Court regarding discrepancy between the admitted signature
and the alleged signature in the Will, Exhibit B13 on the basis of the
oral testimony of DW2, an alleged attesting witness alone?
f. Were the Courts below justified in not taking into account
subsequent event, viz., death of the mother, Andal Ammal to decree
the suit in so far as Item II of the schedule properties?”
5. Ms.R.V.Rukmani, learned counsel for the plaintiff would
vehemently contend that the first appellate Court erred in holding that the
Will has been proved; that the Will though was said to have been
executed in 1986, the second defendant admitted that he was not aware of
the said Will, which is improbable; that the Will was only created after
the suit was filed; that in the sale deeds executed by the second defendant
prior to the institution of the suit, there is no reference to the Will; that the
trial Court had rightly found that there was a variation in the signature of
the unregistered Will when compared with the admitted signature in
Ex.B3, a sale agreement; that the first appellate Court had erroneously
relied upon the evidence of the attestor-DW2, which is insufficient when
there is a suspicion as regards the execution of the Will; that in any case,
in view of the judgment of the Hon’ble Supreme Court in Vineeta
Sharma vs. Rakesh Sharma and others, reported in (2020) 9 SCC 1,
since the daughter is also a coparcener, she is entitled to an equal share as
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that of the son, subject to alienations or testamentary deposition made
prior to 20.12.2004 in respect of Item No.1 of the suit schedule
properties; and that in respect of Item No.2 of the suit schedule properties
which belonged to late Andalammal, the plaintiff as a daughter is entitled
to one-third share and prayed for setting aside the impugned judgment.
6. Kausalya, the 1st respondent in S.A.No.886 of 2010 and the 2 nd
respondent in S.A.No.887 of 2010 [the first defendant in the suit] was set
ex parte vide this Court’s order dated 19.01.2022.
7. Mr. Thirugnanam, learned counsel for respondents 3 to 7, who
are the legal heirs of the deceased second defendant, submitted that the
suit was filed in the year 1999; that the suit claim for one-third share is
misconceived, as even according to the plaintiff, the Item No.1 of the suit
schedule properties were ancestral properties that most of Item No.1
properties were sold even prior to the institution of this suit; that the suit
suffers from latches and was instituted nearly 13 years after the death of
Angusamy; that the rights of the plaintiff was ousted on account of
passage of time; that since the suit was also one for recovery of
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possession, it ought to have been instituted within 12 years in view of
Article 110 of the Limitation Act, 1963 and the suit is barred by
limitation; that in respect of Item No.2 of the suit schedule properties, all
the properties were sold even during the lifetime of Andalammal and
therefore, they are not available for partition; that the Will has been
proved beyond doubt and rightly accepted by the first appellate Court;
and that the Will is in respect of Sl.Nos.1 to 7 in Item No.1 of the suit
schedule properties and the remaining properties in Sl.Nos.8 to 12 were
already sold; and hence, prayed for dismissal of the appeals.
8. This Court has carefully considered the rival submissions and
perused the materials available on record.
9. Substantial Questions of Law ‘d’ and ‘e’:
(i) The substantial questions of law ‘d’ and ‘e’ relate to the validity
of the Will, marked as Ex.B13, said to have been executed by the late
Angusamy. The following facts are admitted:
The plaintiff, the first defendant-Kausalya, and late Munusamy, the
second defendant are the children of late Angusamy and Andalammal
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(third defendant originally). Item No.1 of the suit schedule properties are
ancestral properties. Item No. 2 belonged to late Andalammal. Some of
the properties in Item Nos.1 and 2 were already sold by late Angusamy
and late Andalammal, and some were sold by the second defendant prior
to the institution of the suit. The plaintiff had not filed any encumbrance
certificate in respect of the suit schedule properties and had not arrayed
the purchasers as defendants in the suit.
(ii) Since Item No.1 of the suit schedule properties are ancestral
properties, the plaintiff had no basis to claim one-third share in the said
properties, as on the date of the suit she had no right as a coparcener. If at
all she had any right over the ancestral properties, it was only her one-
third share in the father's half share in the coparcenary property, provided
the father died intestate. It is the case of the defendants that Angusamy
executed a Will on 18.01.1986 in respect of Sl.Nos.1 to 7 in Item No.1 of
the suit schedule properties. The properties in Sl.Nos.8, 9, 10 were sold
and stated so in the said Will. However, the plaintiff had not chosen to
file a reply statement denying the execution of the Will. The defendants
had examined one DW2, an attestor to the Will. No suggestion was made
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to DW2 that the signature in the Will were forged. DW2 was not
discredited in any manner in the cross-examination. The first Appellate
Court, on comparison of the signature in Ex.B13 with the admitted
signature in Ex.B3, had found that though there is a slight variation, it
reveals that it was signed by the same person. The plaintiff besides not
pleading that the Will was forged had not taken any steps to prove that
the signature in the Will was not that of late Angusamy.
(iii) The defendants had discharged their onus that the Will was
signed by the testator in the presence of two witnesses and he was in a
sound disposing state of mind at the time of execution. The plaintiff, who
alleged that the Will was either forged or obtained by fraud, had failed to
prove such allegation. In Daulat Ram vs. Sodha and others reported in
2004 5 CTC 790, the Hon'ble Supreme Court has held as follows:
“10. Will being a document has to be proved by primary
evidence except where the Court permits a document to be
proved by leading secondary evidence. Since it is required to be
attested, as provided in Section 68 of the Indian Evidence Act,
1872, it cannot be used as evidence until one of the attesting
witnesses at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject to
the process of the Court and capable of giving evidence. In
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addition, it has to satisfy the requirements of Section 63 of the
Indian Succession Act, 1925. In order to assess as to whether
the Will has been validly executed and is a genuine document,
the propounder has to show that the Will was signed by the
testator and that he had put his signatures to the testament of his
own free will; that he was at the relevant time in a sound
disposing state of mind and understood the nature and effect of
the dispositions and that the testator had signed it in the
presence of two witnesses who attested it in his presence and in
the presence of each other. Once these elements are established,
the onus which rests on the propounder is discharged. But
where there are suspicious circumstances, the onus is on the
propounder to remove the suspicion by leading appropriate
evidence. The burden to prove that the will was forged or that it
was obtained under undue influence or coercion or by playing a
fraud is on the person who alleges it to be so.”
(iv) In the facts of this case, this Court is of the view that the
plaintiff had not pointed out any circumstances in the pleadings or in the
cross-examination of DW2 to suggest that the Will is suspicious. Though
there is a reference in the trial Court judgment about the admission made
by the second defendant, that he had not referred to the Will in any of his
sale deeds executed by him, this Court is of the view that since the
plaintiff had neither pleaded nor established that the Will was forged or
obtained under undue influence or coercion, the finding of the first
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appellate Court that the Will is genuine cannot be faulted. The substantial
questions of law ‘d’ and ‘e’ are answered accordingly.
10. Substantial Questions of Law ‘a’ to ‘c’:
(i) When the plaintiff filed the suit she could not have claimed a
share in her father Angusamy's share in coparcenary property and her
claim of 1/3rd share in the suit properties was misconceived. However, it
is well settled that in a partition suit, a suit for partition is not disposed of
by passing a preliminary decree and the suit continues until a final decree
is passed. It is only by a final decree an immovable property is partitioned
by its metes and bounds.
(ii) The Hon'ble Supreme Court had also held that even after
passing of the preliminary decree, if there is an enlargement or
diminution of the shares of the parties or their rights have been altered by
any statutory amendment, the Court is bound to decide the matter and
pass a final decree keeping in view the change in law. It will be useful to
refer to the relevant observations of the Hon'ble Supreme Court in
Vineeta Sharma’s case [supra],
96. In S. Sai Reddy v. S. Narayana Reddy & Ors. (1991) 3 SCC
647, a suit for partition, was filed. A preliminary decree determining
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the shares was passed. The final decree was yet to be passed. It was
observed that unless and until the final decree is passed and the
allottees of the shares are put in possession of the respective property,
the partition is not complete. A preliminary decree does not bring
about the final partition. For, pending the final decree, the shares
themselves are liable to be varied on account of the intervening events,
and the preliminary decree does not bring about any irreversible
situation. The concept of partition that the legislature had in mind
could not be equated with a mere severance of the status of the joint
family, which could be effected by an expression of a mere desire by a
family member to do so. The benefit of the provision of section 29A
could not have been denied to women whose daughters were entitled to
seek shares equally with sons in the family. In S. Sai Reddy (supra), it
was held:
“7. The question that falls for our consideration is
whether the preliminary decree has the effect of depriving
respondents 2 to 5 of the benefits of the amendment. The
learned counsel placed reliance on clause (iv) of Section
29-A to support his contention that it does. Clause (ii) of
the section provides that a daughter shall be allotted share
like a son in the same manner treating her to be a son at the
partition of the joint family property. However, the
legislature was conscious that prior to the enforcement of
the amending Act, partitions will already have taken place
in some families and arrangements with regard to the
disposition of the properties would have been made and
marriage expenses would have been incurred etc. The
legislature, therefore, did not want to unsettle the
settled positions. Hence, it enacted clause (iv) providing
that clause (ii) would not apply to a daughter married prior
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to the partition or to a partition which had already been
effected before the commencement of the amending Act.
Thus if prior to the partition of family property a daughter
had been married, she was disentitled to any share in the
property. Similarly, if the partition had been effected before
September 5, 1985 the date on which the amending Act
came into force, the daughter even though unmarried was
not given a share in the family property. The crucial
question, however, is as to when a partition can be said to
have been effected for the purposes of the amended
provision. A partition of the joint Hindu family can be
effected by various modes, viz., by a family settlement, by
a registered instrument of partition, by oral arrangement by
the parties, or by a decree of the Court. When a suit for
partition is filed in a court, a preliminary decree is passed
determining shares of the members of the family. The final
decree follows, thereafter, allotting specific properties and
directing the partition of the immovable properties by metes
and bounds. Unless and until the final decree is passed and
the allottees of the shares are put in possession of the
respective property, the partition is not complete. The
preliminary decree which determines shares does not bring
about the final partition. For, pending the final decree the
shares themselves are liable to be varied on account of the
intervening events. In the instant case, there is no dispute
that only a preliminary decree had been passed and before
the final decree could be passed the amending Act came
into force as a result of which clause (ii) of Section 29-A of
the Act became applicable. This intervening event which
gave shares to respondents 2 to 5 had the effect of varying
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shares of the parties like any supervening development.
Since the legislation is beneficial and placed on the statute
book with the avowed object of benefitting women which is
a vulnerable section of the society in all its stratas, it is
necessary to give a liberal effect to it. For this reason also,
we cannot equate the concept of partition that the
legislature has in mind in the present case with a mere
severance of the status of the joint family which can be
effected by an expression of a mere desire by a family
member to do so. The partition that the legislature has in
mind in the present case is undoubtedly a partition
completed in all respects and which has brought about an
irreversible situation. A preliminary decree which merely
declares shares which are themselves liable to change does
not bring about any irreversible situation. Hence, we are of
the view that unless a partition of the property is effected
by metes and bounds, the daughters cannot be deprived of
the benefits conferred by the Act. Any other view is likely to
deprive a vast section of the fair sex of the
benefits conferred by the amendment. Spurious family
settlements, instruments of partitions not to speak of oral
partitions will spring up and nullify the beneficial effect of
the legislation depriving a vast section of women of its
benefits.
8. Hence, in our opinion, the High Court has rightly
held that since the final decree had not been passed and the
property had not been divided by metes and bounds, clause
(iv) to Section 29-A was not attracted in the present case
and the respondent-daughters were entitled to their share in
the family property.” (emphasis supplied)
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97. In Prema v. Nanje Gowda, AIR 2011 SC 2077, insertion of
section 6A by the amendment made by the State of Karnataka in the
Hindu Succession Act, 1956, was considered. Equal rights were given
to the daughter in coparcenary property in a suit for partition. A
preliminary decree was passed. Amendment in the Act was made
during the final decree proceedings. It was held that the discrimination
practiced against the unmarried daughter was removed. Unmarried
daughters had equal rights in the coparcenary property. The
amendment's effect was that the unmarried daughter could claim an
equal share in the property in terms of section 6A inserted in
Karnataka. In Prema (supra), the Court opined:
“12. … in R. Gurubasaviah v. Rumale
Karibasappa and others, AIR 1955 Mysore 6, Parshuram
Rajaram Tiwari v. Hirabai Rajaram Tiwari, AIR 1957
Bombay 59 and Jadunath Roy and others v. Parameswar
Mullick and others, AIR 1940 PC 11, and held that if after
passing of preliminary decree in a partition suit but before
passing of final decree, there has been enlargement or
diminution of the shares of the parties or their rights have
been altered by statutory amendment, the Court is duty-
bound to decide the matter and pass final decree keeping in
view of the changed scenario.”
** ** **
“16. We may add that by virtue of the preliminary
decree passed by the trial court, which was confirmed by
the lower appellate Court and the High Court, the issues
decided therein will be deemed to have become final but as
the partition suit is required to be decided in stages, the
same can be regarded as fully and completely decided only
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when the final decree is passed. If in the interregnum any
party to the partition suit dies, then his/her share is required
to be allotted to the surviving parties and this can be done
in the final decree proceedings. Likewise, if law governing
the parties is amended before the conclusion of the final
decree proceedings, the party benefited by such amendment
can make a request to the Court to take cognizance of the
amendment and give effect to the same. If the rights of the
parties to the suit change due to other reasons, the Court
seized with the final decree proceedings is not only entitled
but is duty-bound to take notice of such change and pass
appropriate order…” (emphasis supplied).
98. It was held that if after passing of a preliminary decree in a
partition suit but before passing of the final decree, there has been
enlargement or diminution of the shares of the parties or their
rights have been altered by statutory amendment; the Court is duty-
bound to decide the matter and pass final decree keeping in view
the changed scenario. In Prema (supra), the Court further opined:
“29. In our view, neither of the aforesaid three
judgments can be read as laying down a proposition of law
that in a partition suit, preliminary decree cannot be varied
in the final decree proceedings despite amendment of the
law governing the parties by which the discrimination
practiced against unmarried daughter was removed and the
statute was brought in conformity with Articles
14 and 15 of the Constitution. We are further of the view
that the ratio of Phoolchand v. Gopal Lal, (AIR 1967 SC
1470) (supra) and S. Sai Reddy v. S. Narayana Reddy,
(1991 AIR SCW 488) (supra) has direct bearing on this
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case and the trial court and the High Court committed
serious error by dismissing the application filed by
the appellant for grant of equal share in the suit property in
terms of Section 6A of the Karnataka Act No.23 of 1994.”
It was laid down that by the change of law, the share of
daughter can be enlarged even after passing a preliminary
decree, the effect can be given to in final decree
proceedings.””
(iii) Therefore, this Court has to necessarily take into consideration
the effect of Act 39 of 2005 amendment to the Hindu Succession Act,
2005 which would have a bearing on the rights of the parties in this case.
By virtue of the amendment, the plaintiff has to be treated as a coparcener
in respect of the ancestral properties. The Hon'ble Supreme Court in
Vineeta Sharma’s case [supra] had summed up its findings as follows:
“137. Resultantly, we answer the reference as under:
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 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.
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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
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 female heir, of Class I as specified in
the Schedule to the Act of 1956 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 rigor of provisions of Explanation
to Section 6(5) of the Act of 1956, 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 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.
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(iv) From the above observations, it will be clear that the rights can
be claimed by the daughter with effect from 09-09-2005 with savings as
provided in section 6(1) as to the disposition or alienation, partition or
testimonial disposition, which have taken place before 20.12.2004.
(v) It is in the light of the above legal principles the share of the
plaintiff has to be determined. In view of her right by birth which has
been recognized by the amendment, neither the question of limitation nor
ouster would arise.
(vi) As stated above, the Will of Angusamy dated 18.01.1986 has
been proved. Angusamy died on 02.03.1986 and hence the testamentary
disposition took place prior to 20.12.2004. It is seen from the Will that
Angusamy had bequeathed his 50% undivided share in Sl.Nos 1 to 7 of
Item No.1 of the suit schedule properties, in favour of the second
defendant. When Angusamy executed the Will, he did so on the premise
that he had 50% undivided share in the said properties. The said
testamentary disposition is protected. He could have executed the Will in
favour of any third person. The fact that he executed a Will in favour of
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his own son, another coparcener would make no difference and therefore,
the said testamentary disposition has to be necessarily saved and the
plaintiff, the daughter cannot claim any share in the 50% undivided share
of Angusamy in the properties listed in Sl.Nos.1 to 7 of Item No.1 of the
suit schedule properties. The plaintiff would not be entitled to any share
in respect of the said testamentary disposition. The properties in Sl.Nos 8,
9, and 10 have been stated to be sold by the late Angusamy in the Will.
(vii) Therefore, this Court is of the view that the plaintiff would be
entitled to 1/3rd share in the ½ share that remained in the coparcenary
property, after excluding the testamentary disposition made by her father.
In other words, the plaintiff would be entitled to 1/3rd x ½ = 1/6th share
in properties mentioned in Sl.Nos.1 to 7 of Item No.1 of the suit schedule
properties, provided they have not been subjected to any alienation prior
to 20.12.2004 by Munusamy/the second defendant.
(viii) Though it is pleaded and some evidence has been let in that
certain properties are not available for partition and some of the
properties have been described improperly, this Court is of the view that
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it is for the trial Court to determine as to which of the properties
mentioned in Sl.Nos.1 to 7 of Item No.1 of the suit schedule were
available as on 20.12.2004 for partition and determine the 1/6th share of
the properties that remained with Munusamy as on 20.12.2004. As stated
above the properties in Sl.Nos.8, 9 and 10 have already been sold
according to the Will and there is no evidence to the contrary by the
plaintiff.
(ix) As regards Sl.Nos.11 and 12 of the Item No.1 of the suit
schedule properties, it is seen that though the defendants had claimed that
they were sold, the trial Court may determine whether those properties
were also available as on 20.12.2004 for partition, before passing the final
decree. Further, since there is no testamentary disposition in respect of
Sl.Nos.11 and 12 of the Item No.1 of the suit schedule properties, the
plaintiff would be entitled to 1/3rd share subject to the above observation
and subject to the savings as provided in Section 6(1) of the Hindu
Succession (Amendment) Act, 2005 (Act 39 of 2005). Therefore, the
substantial questions of law ‘a’ to ‘c’ are answered accordingly.
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11. Substantial Question of Law ‘f’:
(i) As regards the substantial question of law ‘f’, it is seen that the
defendants have stated categorically in the written statement that all the
properties have been sold while the late Andalammal was alive. In fact,
D.W.1 had deposed and had produced Ex.B4 sale deed of the year 1991
to prove that the property in Sl.No.3 of Item No.2 of the suit schedule
properties, was sold through the said document.
(ii) In respect of the property in Sl.No.2 of Item No.2 of the suit
schedule properties, the defendants have produced Ex.B5, sale deed of
the year 1978 to show that the property has been sold. In fact, the
plaintiff has not let in any evidence to the contrary.
(iii) As regards the property in Sl.No.1 of Item No.2 of the suit
schedule properties, the defendants have stated that that property also has
been sold prior to the death of Andalammal. The learned counsel
produced the chart stating that substantial portion of the said property was
sold and 6.46 cents is available for partition. However, there is no such
evidence let in by the plaintiff to show that the said extent of 6.46 cents is
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still available for partition. In the absence of evidence adduced on the
side of the plaintiff, this Court is of the view that the plaintiff is not
entitled to partition of any of the properties in Item No.2 of the suit
schedule properties. Therefore, substantial question of law ‘f’ is
answered against the plaintiff.
12. In the result, this Court sums up the findings as follows:
(a) As regards, Sl.Nos.1 to 7 of the Item No.1 of the
suit schedule properties, the plaintiff would be entitled to
1/6th share.
(b) As regards, Sl.Nos.8, 9 and 10 of the Item No.1 of
the suit schedule properties, the plaintiff would not be
entitled to any share.
(c) As regards, Sl.Nos.11 and 12 of the Item No.1 of
the suit schedule properties, the plaintiff would be entitled to
1/3rd share.
(d) The entitlement referred to in (a) and (c) would be
subject to any alienation made by the said Munusamy/the
second defendant, prior to 20.12.2004. The trial Court shall
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determine the properties that were available as on
20.12.2004 and pass a final decree as stated above in respect
of those properties.
(e) As regards, Item No.2 of the suit schedule
properties, the plaintiff is not entitled to any share since the
properties are not available for partition.
13. The second appeals are partly allowed in the above terms. No
Costs.
08-04-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
ars
To
1. The Additional District Judge
(Fast Track Court-II),
Poonamallee.
2. The Subordinate Judge,
Poonamallee.
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SA Nos.886 & 887 of 2010
SUNDER MOHAN J.
ars
Pre-delivery Common Judgment in
SA Nos.886 & 887 of 2010
08-04-2026
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