[Cites 15, Cited by 0]
Madras High Court
Daisy Gnanammal vs Ponnuthai on 30 April, 2026
SA(MD). No.556 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 01.04.2026
Delivered on : 30.04.2026
CORAM
THE HONOURABLE MR. JUSTICE P.B.BALAJI
SA(MD). No.556 of 2019
and
CMP(MD)No.11131 of 2019
1.Daisy Gnanammal
2.Masilamani Sundararaj ... Appellants/Appellants /
Defendants
Vs.
Ponnuthai ... Respondent / Respondent/
Plaintiff
PRAYER :- Second Appeal is filed under Section 100 of the Civil
Procedure Code, against the judgment and decree dated 08.08.2019
passed in A.S.No.129 of 2018 on the file of the Principal District Judge,
Tirunelveli, confirming the judgment and decree dated 25.09.2018 made
in O.S.No.73 of 2013 on the file of the learned Principal Subordinate
Judge, Tirunelveli.
1/23
https://www.mhc.tn.gov.in/judis
SA(MD). No.556 of 2019
For Appellants : Mr.J.John
For Respondent : Mrs.J.Roshini
for Mr.G.Prabhu Rajadurai
JUDGMENT
The defendants in a suit for partition, aggrieved by the concurrent
findings rendered by the trial Court and the first appellate Court, are the
appellants in the present second appeal.
2. For the sake of convenience, the parties are referred to as per
their rank before the trial Court.
3. The second appeal was admitted on 21.11.2019 on the following
substantial questions of law:-
“(A) Whether the Courts below have framed issue,
as to whether the deceased Selvaraj wife Chandra (PW2)
has right over the suit property after she has received
Selvaraj death benefits as per the exhibit XI and X2 under
Section 33(a) of the Indian Succession Act, which is real
issue which consideration?
https://www.mhc.tn.gov.in/judis
(B) Whether the plaint is barred by Article 110 of
the Limitation Act, when the plaintiff have purchased the
property through exhibit A2 sale deed dated 21.08.1996?
(C) Whether the Courts below are right in holding
that the plaintiff and Appellant/defendant are joint
possession of the suit property, when the
Respondent/Plaintiff has filed earlier suit for declaration
and Recovery of possession in O.S.No.165 of 2010 and
lost?”
4. I have heard Mr.J.John, learned counsel for the appellants and
Mrs.J.Roshini, for Mr.G.Prabhu Rajadurai, learned counsel for the
respondent.
5. Brief facts that are necessary for adjudicating the second appeal
are as hereunder:-
The plaintiff is the sister of the defendants. The suit property was
originally a vacant site, which belonged to one Ponnusamy, the father of
the plaintiff and the defendants, he having purchased the same under
registered sale deed dated 03.03.1966. The father of the parties executed
https://www.mhc.tn.gov.in/judis
a settlement deed on 06.09.1984 settling the southern side, a vacant site
in favour of his son Selvaraj, who is the brother of the plaintiff and the
defendants. Ponnusamy, the father also executed a registered Will on
10.04.1984 in favour of the second defendant, who is his other son, and
his wife Jebamani, bequeathing northern portion of the suit schedule
property to them. Selvaraj, the son having become owner, having put up
construction in the southern side of the vacant site, was in absolute
possession and enjoyment till his death in 1992. Selvaraj died without
any issues. The property of Selvaraj was inherited by his wife and
mother. The wife and mother of Selvaraj sold the property to the plaintiff
under registered sale deed dated 21.08.1996. The plaintiff has assessed
the property in her name and the plaintiff also constructed first floor over
the existing ground floor put up by Selvaraj. The father of the plaintiff
died in the year 1987 and the Will dated 10.09.1984 came into effect.
The second defendant and his mother Jebamani occupied the northern
portion of the schedule property in terms of the Will. The second
defendant and his mother jointly sold the northern side property in favour
of the first defendant under registered sale deed dated 14.07.1993. Later,
https://www.mhc.tn.gov.in/judis
in 2003, the first defendant executed a settlement deed in respect of the
western portion of the northern side property in favour of her mother.
The plaintiff’s mother, viz., Jebamani constructed a house in the said
western portion and gifted the same to the second defendant. In the
eastern side of the northern side property, the first defendant had already
constructed a house. The second defendant returned to Palaymkottai and
settled in the property lying on the western side of the northern side of
the property. The first defendant is residing on the eastern side. Both
properties are having entry towards northern side. The mother of the
plaintiff was permitted to reside in the plaint schedule property, since the
defendants assured to take care of the mother as they are leaving closer
to the plaint schedule property. The defendants were therefore permitted
access to the property, since the mother was in permissive occupation.
The plaintiff's belongings were kept in the first floor and the mother of
the plaintiff died on 20.12.2008 and the plaintiff requested the
defendants to surrender possession on 07.12.2008. The defendants
initially agreed to hand over possession, but, later refused, which
constrained the plaintiff to file a suit in O.S.No.7 of 2009. In the said
https://www.mhc.tn.gov.in/judis
suit, the defendants herein filed a written statement stating that on the
intestate demise of Selvaraj, the plaintiff’s mother and the defendants are
entitled to 1/4 share each, as per the Indian Succession Act. Taking note
of the defence, the suit was dismissed on the ground that the plaintiff’s
vendors did not have any absolute right over the schedule property and
the wife of Selvaraj is entitled to 1/3 share and the remaining 2/3 alone
would be devolve upon his mother, brother and sisters. Against, the
judgment, an appeal in A.S.No.57 of 2011 has been preferred.
5.2. Pending the said appeal, the plaintiff filed I.A.No.20 of 2012
to withdraw the suit with liberty to file a suit for partition. The said
application was allowed on 05.11.2012 and based on the said liberty
granted, the present suit for partition has been filed, claiming an equal
share for the suit property.
6. Denying the plaint allegations, it was contended by the
defendants that the first defendant was employed with the Tamil Nadu
Electricity Board and only from and out of his contribution, Selvaraj put
https://www.mhc.tn.gov.in/judis
up dwelling house in the suit property. The sale deed executed by the
wife and mother of Selvaraj is not binding on the defendants. After the
death of Selvaraj, his wife left her matrimonial home and settled with her
parents and she also got appointment in Tamil Nadu Electricity Board
on compassionate grounds. The first defendant and her mother Jebamani
alone lived in the suit property and the first defendant constructed the
first floor out of her earnings. Wife of Selvaraj did not make any
contribution for the construction of the first floor, which belongs to the
first defendant exclusively. The mother and the wife of Selvaraj received
the entire death service benefits, which is more than the value of the suit
property and had given up their right in favour of the defendants. The
first defendant also gave 100 sovereigns of gold jewels during the
plaintiff’s daughter's marriage and the suit is filed only to harass the
defendants. The plaintiff is not entitled to any right much less 8/12 share.
7. At trial, the plaintiff examined herself as P.W.2 and one Nalliah
was examined as P.W.1 and Ex.A1 to Ex.A19 were marked. On the side
of the defendants themselves examined as D.W.1 and D.W2 and one
https://www.mhc.tn.gov.in/judis
Boothalaingam was examined as D.W.3 and Ex.B1 to Ex.B8 were
marked. Apart from this, Ex.X1 and Ex.X2 were marked as Court
documents.
8. The trial Court, after assessing the oral and documentary
evidence, accepted the plaintiff’s case, granted a preliminary decree.
Aggrieved by the findings of the trial Court, the defendants preferred an
appeal in A.S.No.129 of 2019.
9. The first appellate Court dismissed the appeal, confirming the
findings of the trial Court granting a preliminary decree of 9/12 share to
the plaintiff.
10. Aggrieved by the judgment and decree, the defendants have
filed this Second Appeal.
https://www.mhc.tn.gov.in/judis
11. Argument of the learned counsel for the appellants:
11.1. The learned counsel for the appellants contends that the
parties are Indian Christians and are bound by the provisions of Indian
Succession Act. Relying on Section 33A, the learned counsel states that
the mother is not entitled to any share in the estate of the deceased Indian
Christian and the Courts below have committed a concurrent error in
conferring a right on the mother of the deceased Selvaraj. He would also
state that the suit is barred by limitation and the Courts below have not
appreciate the legal bar for the plaintiff to claim a right, especially when
the plaintiff's earlier suit for declaration had been dismissed and Selvaraj
had died as early as in 1992. He would also place reliance on Ex..X1 and
Ex.X2 to contend that the death benefits which are paid to the mother
and wife of late.Selvaraj was more than the value of the suit property
itself. The learned counsel would therefore state that the Courts below
have not rightly appreciated Ex.A6, judgment in O.S.No.165 of 2010,
where the plaintiff herself admitted that she was not in possession and in
such circumstance, the Courts ought not to have granted a preliminary
decree.
https://www.mhc.tn.gov.in/judis
11.2. In support of his submissions, the learned counsel has relied
on the following decisions:-
1. Judgment of the Division Bench of this Court in Agnes @
Karpaga Devi V. Pauline @ Pauline Iruthaya Mary, in A.S.No.596 of
2019, dated 07.11.2023;
2. Judgment of this Court in Puniyavathi V. Pachaiammal, in
A.S.No.251 of 2011 dated 22.02.2022; and
3. Judgment of this Court in Pitchaikaran @ Ayyanar V.
Muniammal, reported in 2018-8-MLJ-186.
12. Per contra, Mrs.J.Roshini, learned counsel appearing for the
respondent/plaintiff would contend that the Courts below have not
committed any error. Firstly with regard to the applicability of Section
33A of the Indian Succession Act, the learned counsel for the
respondent / plaintiff would state that Section 33 of the Indian
Succession Act will not apply to the facts of the present case, since there
were admittedly no lineal descendant and Selvaraj died leaving behind
https://www.mhc.tn.gov.in/judis
his wife alone and therefore, Sections 41 onwards alone would apply to
the facts of the present case and subsequently, the mother of the deceased
would also be entitled to share along with wife. In this connection, the
learned counsel would take me through the findings of the Courts below
and state that Courts have rightly applied the provisions of Indian
Succession Act and no interference is warranted. As regards limitation,
the learned counsel would contend that being a suit for partition, the
right is a continuing one and therefore, there is no question of the suit
being barred. Further, it is admitted that the earlier suit was dismissed
and pending appeal, an application was taken out for filing a fresh suit
for partition and such liberty was also granted. Under such
circumstances, the learned counsel for the first respondent would contend
that the suit has been filed well within the prescribed limitation period
and therefore, cannot be dismissed on the ground of limitation.
13. I have carefully considered the submissions advanced by the
learned counsel on either side.
https://www.mhc.tn.gov.in/judis
14. For better appreciation of the entitlement of the parties to a
share in the suit property, the following provisions of the Indian
Succession Act are relevant:
“33. Where intestate has left widow and lineal
descendants, or widow and kindred only, or widow and
no kindred. -Where the intestate has left a widow-
(a) if he has also left any lineal descendants, one-
third of his property shall belong to his widow, and
the remaining two-thirds shall go to his lineal
descendants, according to the rules hereinafter
contained;
(b) if he has left no lineal descendant, but has
left persons who are of kindred to him, one-half of
his property shall belong to his widow, and the other
half shall go to those who are kindred to him, in the
order and according to the rules hereinafter contained;
(c) if he has left none who are of kindred to him, the
whole of his property shall belong to his widow.
33A. Special provision where intestate has left
widow and no lineal descendants.-
(1) Where the intestate has left a widow but no
https://www.mhc.tn.gov.in/judis
lineal descendants and the nett value of his property
does not exceed five thousand rupees, the whole of his
property shall belong to the widow.
(2) Where the nett value of the property exceeds
the sum of five thousand rupees, the widow shall be
entitled to five thousand rupees thereof and shall have
a charge upon the whole of such property for such sum
of five thousand rupees, with interest thereon from the
date of the death of the intestate at 4 per cent. per annum
until payment.
(3) The provision for the widow made by this
section shall be in addition and without prejudice to
her interest and share in the residue of the estate of
such intestate remaining after payment of the said sum
of five thousand rupees with interest as aforesaid, and
such residue shall be distributed in accordance with
the provisions of section 33 as if it were the whole of
such intestate's property.
(4) The nett value of the property shall be
ascertained by deducting from the gross value thereof
all debts, and all funeral and administration expenses
of the intestate, and all other lawful liabilities and
charges to which the property shall be subject.
https://www.mhc.tn.gov.in/judis
(5) This section shall not apply--
(a) to the property of-
(i) any Indian Christian,
(ii) any child or grandchild of any male person
who is or was at the time of his death an Indian
Christian, or
(iii) any person professing the Hindu, Buddhist,
Sikh or Jaina religion the succession to whose property
is, under section 24 of the Special Marriage Act, 1872
(3 of 1872.), regulated by the provisions of this Act;
(b) unless the deceased dies intestate in respect of
all his property.
41. Rules of distribution where intestate has left
no lineal descendants. -Where an intestate has left no
lineal descendants, the rules for the distribution of his
property (after deducting the widow's share, if he has
left a widow) shall be those contained in sections 42 to
42. Where intestate's father living.-
If the intestate's father is living, he shall succeed
to the property.
43. Where intestate's father dead, but his
mother, brothers and sisters living.-If the intestate's
father is dead, but the intestate's mother is living and
https://www.mhc.tn.gov.in/judis
there are also brothers or sisters of the intestate
living, and there is no child living of any deceased
brother or sister, the mother and each living brother or
sister shall succeed to the property in equal shares.
Illustration A dies intestate, survived by his mother
and two brothers of the full blood, John and Henry, and
a sister Mary, who is the daughter of his mother but not
of his father. The mother takes one-fourth, each brother
takes one-fourth and Mary, the sister of half blood,
takes one-fourth.
44. Where intestate's father dead and his mother,
a brother or sister, and children of any deceased
brother or sister, living. -
If the intestate's father is dead but the intestate's
mother is living, and if any brother or sister and the
child or children of any brother or sister who may have
died in the intestate's lifetime are also living, then the
mother and each living brother or sister, and the living
child or children of each deceased brother or sister,
shall be entitled to the property in equal shares, such
children (if more than one) taking in equal shares only
the shares which their respective parents would have
taken if living at the intestate's death.
Illustration A, the intestate, leaves his mother,
https://www.mhc.tn.gov.in/judis
his brothers John and Henry, and also one child of a
deceased sister, Mary, and two children of George, a
deceased brother of the half blood who was the son of
his father but not of his mother. The mother takes one-
fifth, John and Henry each takes one-fifth, the child of
Mary takes one-fifth, and the two children of George
divide the remaining one-fifth equally between them.
45. Where intestate's father dead and his mother
and children of any deceased brother or sister living. -
If the intestate's father is dead, but the intestate's
mother is living, and the brothers and sisters are all
dead, but all or any of them have left children who
survived the intestate, the mother and the child or
children of each deceased brother or sister shall be
entitled to the property in equal shares, such children
(if more than one) taking in equal shares only the
shares which their respective parents would have taken
if living at the intestate's death.
Illustration A, the intestate, leaves no
brother or sister but leaves his mother and one child of
a deceased sister, Mary, and two children of a deceased
brother, George. The mother takes one-third, the child
of Mary takes one-third, and the children of George
divide the remaining one-third equally between them.
https://www.mhc.tn.gov.in/judis
46. Where intestate's father dead, but his mother
living and no brother, sister, nephew or niece. -If the
intestate's father is dead, but the intestate's mother is
living, and there is neither brother, nor sister, nor child
of any brother or sister of the intestate, the property
shall belong to the mother.
47. Where intestate has left neither lineal
descendant, nor father, nor mother. -Where the
intestate has left neither lineal descendant, nor
father, nor mother, the property shall be divided
equally between his brothers and sisters and the child or
children of such of them as may have died before him,
such children (if more than one) taking in equal shares
only the shares which their respective parents would
have taken if living at the intestate's death.
48. Where intestate has left neither lineal
descendant, nor parent, nor brother, nor sister.-Where
the intestate has left neither lineal descendant, nor
parent, nor brother, nor sister, his property shall be
divided equally among those of his relatives who are in
the nearest degree of kindred to him.
Illustrations (i) A, the intestate, has left a
grandfather, and a grandmother and no other relative
https://www.mhc.tn.gov.in/judis
standing in the same or a nearer degree of kindred to
him. They, being in the second degree, will be entitled to
the property in equal shares, exclusive of any uncle or
aunt of the intestate, uncles and aunts being only in the
third degree.
(ii) A, the intestate, has left a great-grandfather,
or a great- grandmother, and uncles and aunts, and no
other relative standing in the same or a nearer degree
of kindred to him. All of these being in the third degree
will take equal shares.
(iii) A, the intestate, left a great-grandfather,
an uncle and a nephew, but no relative standing in a
nearer degree of kindred to him. All of these being in the
third degree will take equal shares.
(iv) Ten children of one brother or sister of the
intestate, and one child of another brother or sister of
the intestate, constitute the class of relatives of the
nearest degree of kindred to him. They will each take
one-eleventh of the property.”
15. Here, admittedly Selvaraj died without leaving any issue. Since
Section 41 of the Indian Succession Act deals specifically with such a
situation, the appellant cannot invoke Section 33. Only Sections 41 to 48
https://www.mhc.tn.gov.in/judis
of the Act are applicable in the present case and consequently, the mother
of the deceased would arbitrarily be entitled to a share.
16. In view of the above, I do not see how the decision of the
Hon'ble Division Bench in Agnes @ Karpaga Devi's case would apply to
the facts of the present case, where on facts, the Hon'ble Division Bench
held that the deceased had died leaving behind a widow and in such
circumstances, the mother would not be entitled to any share. The
plaintiff, in fact, has already purchased the share of Selvaraj's wife and
mother in and by a registered sale deed on 21.08.1996 and it is only in
respect of the entire property that the suit has been filed seeking
partition. In such circumstances, I do not see how the actions of said
Selvaraj in the year 1992 or the dismissal of O.S.No.165 of 2010 would
come in the way of the plaintiff, the plaintiff seeking relief, putting
limitation against the plaintiff. In fact, as already discussed, the suit in
O.S.No.165 of 2010 was no doubt dismissed against the plaintiff.
However, pending the first Appeal, the plaintiff was given liberty under
Order 23 CPC to withdraw the suit to file a fresh suit for partition and the
https://www.mhc.tn.gov.in/judis
present suit has been filed. Therefore, when the plaintiff seeks a relief of
partition having admittedly purchased the shares of the mother and sister
of Selvaraj, the plaintiff becomes a co-owner and is certainly entitled to
seek partition. There is no plea of ouster and admittedly the plaintiff has
been in constructive possession of the suit property and therefore, in such
circumstances, I do not see how the suit can be said to be barred by
limitation, and Article 110 of the Limitation Act therefore cannot be
applied.
17. In Puniyavathi's case, the Court found that the property had
already been divided in the year 1991 under registered document and the
same was not questioned by the plaintiff for 31 years and in such
circumstances, Section 27 of the Limitation Act was applied to non-suit
the plaintiff. This decision is therefore not applicable to the facts of the
present case.
18. In Pitchaikaran's case, this Court held that applying Article
110 of the Limitation Act, on the admitted facts of the said case that the
https://www.mhc.tn.gov.in/judis
plaintiffs themselves admitted to be excluded from enjoyment of the
property for a very long period of time and they had also failed to
produce to any material to establish that they were in joint possession
and enjoyment of the property. Therefore, this decision also cannot be
applied here.
19. In the light of the above, I do not see any grounds warranting
interference under Section 100 of the Code of Civil Procedure.
Substantial questions of law are answered against the appellants /
defendants. This Second appeal is dismissed. However, there shall be no
order as to costs. Consequently, connected Miscellaneous Petition is
closed.
30.04.2026
NCS : Yes/No
Index : Yes / No
Internet : Yes / No
https://www.mhc.tn.gov.in/judis
TO
1. The Principal District Judge,
Tirunelveli
2.The Principal Subordinate Judge,
Tirunelveli.
3. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
P.B.BALAJI,J.
Ls
Pre- delivery Judgment made in
30.04.2026
https://www.mhc.tn.gov.in/judis
