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2009 DIGILAW 2567 (MAD)

P. Subramanian v. Sundarambal & Others

2009-07-22

V.PERIYA KARUPPIAH

body2009
Judgment :- 1. This Appeal has been directed against the judgment and preliminary decree in O.S. No.33 of 1993 passed by the Lower Court in favour of the plaintiff against the interest of the first defendant. 2. The averments in the Plaint in brief relevant for the purpose of deciding this Appeal runs as follows: 2(a). The plaintiff and the first defendant are the daughter and son respectively of one Ponnusamy Asari through his second wife by name Rajalakshmi. The second defendant is the first wife of the said Ponnusamy Asari. The said Ponnusamy Asari married the said Rajalakshmi on 211. 1956, during the life time of the 2nd defendant, even while her marriage with the said Ponnusamy Asari was subsisting. The said Ponnusamy Asari developed the nucleus left by his father and the suit properties are the joint family properties of the said Ponnusamy Asari. The suit properties consist of cultivable lands, with Motor Pump sets, houses, Cow yard Bank deposits. 2(b). The said Ponnusamy Asari expired on 16. 1990. He died intestate, of course, the said Rajalakshmi, the 2nd wife of Ponnusamy Asari, also expired on 26. 1992. It is submitted that the plaintiff is residing in the house that was constructed by the said Ponnusamy Asari himself. The plaintiff was retained in the family fold of the said Ponnusamy Asari even after her marriage. It is submitted that the second marriage of the said Ponnusamy Asari was void as the Hindu Marriage Act, 1955 was in operation at the time of the said second marriage. 2(c). The first defendant is trying to appropriate all the properties that were left over by the said Ponnusamy Asari. The first defendant has been trying to create an impasse by blocking the drainage of the plaintiff’s residence and also by cutting for the consumption of the plaintiffs family in her residential portions as mentioned above. The electricity connection was obtained by the said Ponnusamy Asari. The plaintiff objected to the cutting of the electric supply. But the first defendant paid no head to the wailings of the plaintiff. The cutting of the electricity and the blockage of the drainage were made on 20.1.1991. 2(d). In order to avoid complication and further problems, the plaintiff wants to cede out he share, in the properties left by the said Ponnusamy Asari. But the first defendant paid no head to the wailings of the plaintiff. The cutting of the electricity and the blockage of the drainage were made on 20.1.1991. 2(d). In order to avoid complication and further problems, the plaintiff wants to cede out he share, in the properties left by the said Ponnusamy Asari. The plaintiff and the defendants 1 & 2 have got equal share in the property left by the said Ponnusamy Asari. Though the exact quantum of deposits in the Bank is not readily available presently to the plaintiff, the plaintiff submits that she could be furnishing the details, if necessary, by means of an amendment to the Plaint. Since the plaintiff is not able at this juncture to give the exact quantum of deposits made by the first defendant as well as the said Ponnusamy Asari, she wants to reserve her right to furnish further details in respect of the same so as to enable the Court to make the decree complete one. 2(e). In any event, the deceased Ponnusamy Asari had made Fixed Deposits and also Recurring Deposits in his own name under the name of his son, the first defendant, and his wife, the second defendant. After the demise of the said Ponnusamy Asari, the defendants 1 & 2 have converted those deposits in their names. The deposits were made in the 3rd and 4th defendants – Banks. These deposits had been made only from and out of the funds that belonged to the joint family as described above. 2(f). The cause of action for the Suit arose on 30.1.1991 when the first defendant interfered in the enjoyment of the amenities of the plaintiff in his residential house in Kedakavattankurichi Village. Hence, the Suit. 3. The first defendant in her written statement would contend as follows: 3(a). The Suit claim is false, frivolous and vexatious. The Suit is not maintainable in law nor sustainable on facts. The plaintiff is not entitled to 1/3rd share of the suit properties as claimed in the Plaint. The marriage of Ponnusamy Asari and Rajalakshmi took place only on 12. 1954 and not on 211. 1956 as wrongly stated in the Plaint. The suit properties are not correctly given in the Plaint both with reference to survey numbers as well as extents. All the suit properties are not joint family properties. The marriage of Ponnusamy Asari and Rajalakshmi took place only on 12. 1954 and not on 211. 1956 as wrongly stated in the Plaint. The suit properties are not correctly given in the Plaint both with reference to survey numbers as well as extents. All the suit properties are not joint family properties. The following properties are the exclusive properties of this defendant in Keelakavattankurichi in Ariyalur Taluk: 0.15 acre in R.S. No.300/2, 0.16 acre in R.S. No.300/3, 0.20 acre out of 1.40 acre in R.S. No.300/1 and 0.21 acre out of 0.44 acre in R.S. No.300/4. The properties in R.S. No.190/3 (0.75 acre), R.S. No.192/3 (0.56 acre), R.S. No.191/4 (1.51 acre) and R.S. No.196/5 (o.67 acre) had been purchased in his name when this defendant was a minor represented by the 2nd defendant as his guardian and they are purchased under the sale deed dated 22.09.1974, 20.12.1971 and 7. 1977. Funds had been provided only by the second defendant with an intention to benefit this defendant exclusively. In other words, the properties comprised in the above sale deeds are the exclusive properties of this defendant and not liable for division. They have been enjoyed only by this defendant as his exclusive properties. 3(b). This defendant submits that even during the life time of Ponnusamy Asari, he sold the following properties to one Rangasamy: 0.57 acres in R.S. No.61/9, 0.19 acres in R.S. No.61/13-A, 0.02 acres in R.S. No.16/13-C and 0.06 acres in R.S. No.6/14-A (totally 0.84 acres). Further, an extent of 0.49 acres in R.S. No.350/5 in Keelakavattan Kurichi village was sold by Ponnusamy Asari to one Natarajan. Therefore, the above properties are not available for partition. In ‘A’ schedule property the extent of S. No.61/13-A is only 19 cents and not 34 cents. Likewise the extent of R.S. No.91/1-D is only 121/2 cents and not 57 cents. In R.S. No.166/80 the extent is only 70 cents and not 93 cents. In R.S. No.350/5 the extent is only 49 cents and not acres 6.06 as stated in the Plaint ‘A’ schedule. 3(c). This defendant is a coparcener along with the deceased Ponnusamy Asari. The marriage of the mother of this defendant with Ponnusamy Asari was held on 12. 1954 and as such the Hindu Marriage Act, 1955 has no application in the instant case. It is denied that the plaintiff is entitled to 1/3rd share in suit properties. 3(c). This defendant is a coparcener along with the deceased Ponnusamy Asari. The marriage of the mother of this defendant with Ponnusamy Asari was held on 12. 1954 and as such the Hindu Marriage Act, 1955 has no application in the instant case. It is denied that the plaintiff is entitled to 1/3rd share in suit properties. The plaint schedule properties do not contain correct survey number and extents and purport to include properties exclusively belonging to this defendant. The plaintiff is not entitled to any share in the properties left behind by Ponnusamy Asari. At the time of marriage of plaintiff, the father of this defendant provided 20 sovereigns of jewels. As the husband of the plaintiff has not permanent employment, Ponnusamy Asari purchased a site in R.S. No.87/7B1 of an extent of 7 1/2 cents in Tirumanur in the name of the plaintiff and put up a factory shed at a cost of Rs.35,000/- and helped the husband of the plaintiff to purchase and install machines like Lathe, Welding, Drilling, Cutting Compressor, etc. The husband of the plaintiff had no means and no permanent employment. Therefore, in order to provide him with a suitable occupation Ponnusamy Asari made the above arrangement. Thus, the plaintiff was provided with jewels and immovable properties and hence she cannot claim any right or interest in the plaint schedule properties. There are no deposits with the 3rd defendant-Bank. Even regarding the deposits made with 4th defendant also the plaintiff is not entitled to make any claim. Deposits in the 4th defendant Bank were made with an intention to benefit this defendant and as a result of the same the plaintiff cannot make any claim in the deposit with the 4th defendant. The particulars in ‘C’ schedule are false and there is no deposit as alleged in ‘C’ schedule. The Suit is bad for mis-joinder of parties and cause of action. The Suit is also bad for inclusion of the exclusive properties of this defendant. Hence, the Suit is liable to be dismissed. 4. In the written statement the second defendant has contended as follows: 4(a). The Suit claim is unsustainable on facts and not maintainable under law. The plaintiff is not entitled to any relief. The second defendant is the legally wedded wife of the said Ponnusamy Asari. The said Ponnusamy Asari married one Rajalakshmi Ammal as his second wife on 12. 4. In the written statement the second defendant has contended as follows: 4(a). The Suit claim is unsustainable on facts and not maintainable under law. The plaintiff is not entitled to any relief. The second defendant is the legally wedded wife of the said Ponnusamy Asari. The said Ponnusamy Asari married one Rajalakshmi Ammal as his second wife on 12. 1954 and not on 211. 1956 as alleged by the plaintiff, even during the subsistence of a valid marriage with this defendant. This defendant denies the allegation that the said Ponnusamy Asari developed the nucleus left by his father and the suit properties are the joint family properties of the said Ponnusamy Asari as false. 4(b). All the suit properties are not the joint family properties of the said Ponnusamy Asari. Out of love and affection and with the view to benefit the first defendant, this defendant had provided funds to the first defendant when he was a minor and the following properties were purchased in his name under the sale deeds dated 20.12.1971, 22.09.1974 and 7. 1977 in Keelakavattankurichi in Ariyalur Taluk: 1. R.S. No.300/2 Acres 0.15 2. R.S. No.300/3 Acres 0.16 3. R.S. No.300/1 Acres 0.20 out of 1.40 4. R.S. No.300/4 Acres 0.21 out of Acres 0.44 The properties in Anni Mangalam village, Ariyalur Taluk viz., R.S. No.1 Acres 0.75, R.S.No.192/3 Acres 0.56, R.S. No.191/4 Acres 1.51 R.S. No. 196/5 Acres 0.67 are in the name of the first defendant and in sale deeds this defendant alone had been shown as his guardian since he was minor at that time. This itself is an indication to show that this defender had provided funds and the sale deeds have been taken to give effect to the intention of this defendant to benefit the first defendant exclusively. Therefore, this defendant submits that the plaintiff cannot make any claim in the above said properties as they absolutely belong to the first defendant. Admittedly on the dates of the sale deeds Rajalakshmi was alive. She had not been proposed as guardian. Hence, the above said properties are not available for partition being the exclusive properties of the first defendant. 4(c). This defendant Submits that even during the life time of Ponnusamy Asari, he sold the following properties to one Rengasamy. In Keelakavattankurichi village: 1. R.S. No.61/9 Acres 0.57 2. R.S. No.61/13-A Acres 0.19 3. R.S. No.61/13-C Acres 0.02 4. Hence, the above said properties are not available for partition being the exclusive properties of the first defendant. 4(c). This defendant Submits that even during the life time of Ponnusamy Asari, he sold the following properties to one Rengasamy. In Keelakavattankurichi village: 1. R.S. No.61/9 Acres 0.57 2. R.S. No.61/13-A Acres 0.19 3. R.S. No.61/13-C Acres 0.02 4. R.S. No.61/14-A Acres 3.84 Further an extent of 0.49 acres in R.S. No.350/5 in Keelakavattankurichi village was sold by Ponnusamy Asari 10 one Mr. Natarajan. Therefore, the above properties are not available for partition as they belong to their parties. Regarding the other properties given in the description of properties In the Plaint, they do not correctly refer to the correct survey numbers and extent, for instance the Keelakavattankurichi village, the extent of S. No.61/13-A is only 19 cents and not 34 cents as stated in the ‘A’ schedule of properties and as already stated it was sold by Ponnusamy Asari even during his life time. As regards S. No.91-1D the extent is only 12 1/2cents and not 0.57 cents as stated in the description of properties in ‘A’ schedule. As regards R.S. No.166/8-A the extent is only 70 cents and not acres 0.93 as stated in description of property. As regards R.S. No.350/5 the extent is only 49 cents and not cares 6.06 as stated in the description of property in the Plaint ‘A’ schedule and as already stated 49 cents in R.S. No.350/5 was sold to one Mr. Natarajan even during the lifetime of Ponnusamy. It s specifically denied that the properties detailed in the Plaint are available for partition the plaintiff being entitled to 1/3 share. 4(d). The plaintiff being an illegitimates daughter of the said Ponnusamy Asari and is disentitled from making any claim for partition. Apart from this, Ponnusamy Asari gave 20 sovereigns of jewels at the time of marriage of plaintiff and also purchased a site in R.S. No.87-7-B1 of an extent of 7 1/2 cents at Tirumanur in the name of the plaintiff. Ponnusamy Asari has also put up a factory shed on the site at a cost of Rs.35,000/- and also helped the husband of the plaintiff to purchase machineries. The husband of the plaintiff has no means and has no permanent employment. Ponnusamy Asari has also put up a factory shed on the site at a cost of Rs.35,000/- and also helped the husband of the plaintiff to purchase machineries. The husband of the plaintiff has no means and has no permanent employment. Therefore, in order to provide him with a suitable occupation Ponnusamy Asari purchased the above said site and put up a factory shed and installed the machineries. Thus, the plaintiff has been provided with jewels and immovable properties as stated above. 4(e). The plaintiff has no right to reside in the house of Ponnusamy Assri after the death of Ponnusamy Asari. This defendant alone is entitled to the house in occupation of the plaintiff and other properties of Ponnusamy Asari. The plaintiff is not entitled to any share left by Ponnusamy Asari. To the knowledge of the defendant there are no deposits with the third defendant Bank. If deposits are in the 4th defendant Bank they are deposited as either or survivor, with the result the first defendant alone has got exclusive right to those deposits. The amounts available with the fourth defendant cannot be divided and the plaintiff is not entitled to any share in them. The value of the properties in the Plaint are boosted up for the reasons best known to the plaintiff. There is no cause of action for the Suit and Suit claim is wholly false and vexatious. Hence, the Suit is liable to the dismissed. 5. The third respondent has filed a written statement contending as follows: The Plaint as framed is not maintainable. This defendant is an unnecessary party to this Suit. The description of the property is vague. No deposit has been left by the deceased Ponnusamy Asari with 3rd defendant-Bank. The first defendant-Balasubaramanian has deposited a sum of Rs.3,000/- in KDR 52/93 dated 3. 1993 for a period of three years. As per the contract, the Bank is bound to pay the amount to the depositor on maturity. But, since the Suit has been filed, payment will not be made to the first defendant and the Bank will abide by the result of the Suit. 6. The fourth defendant has filed the written statement contending as follows: Late Ponnusamy Asari and his son Balasubramanian/D1 have deposited and dealings with this defendant-Bank. But, since the Suit has been filed, payment will not be made to the first defendant and the Bank will abide by the result of the Suit. 6. The fourth defendant has filed the written statement contending as follows: Late Ponnusamy Asari and his son Balasubramanian/D1 have deposited and dealings with this defendant-Bank. Late Ponnusamy Asari and first defendant had deposits on ‘former or survivor’ basis in (1) DBD 15/055 for Rs.6,000/- which matured on 13. 1993 (2) DBD 15/155 for Rs.5,000/- which matured on 12.06.1993. The survivor – Balasubramanian had got loan on the above deposits and those accounts were closed. This defendant is an unnecessary party to this Suit as this Suit ought to have been avoided, if the plaintiff has taken recourse to the grant of Succession Certificate. Hence, whatever may be the result of this case, this defendant is not liable for any cost and on the other hand the plaintiff should be ordered to pay the cost of this Suit to this defendant. 7. In the additional written statement filed by the first defendant it has been contended as follows: The marriage of Ponnusamy Asari with Rajalakshmi took place on 12. 1954 and not on 211. 1956 as stated in the Plaint. This plaintiff while amending the Plaint has not considered the same when the same was emphatically asserted by the first defendant in the written statement. The plaintiff has to prove the factum of marriage on 211. 1956. This defendant has categorically stated in his written statement that the description of property stated therein are his self acquired properties and not joint family properties as alleged in the Plaint. Since they are not the joint family properties, the same is not liable for partition. The plaintiff has not specifically pleaded that the self acquired properties were blended with other properties as joint family properties. In the first defendant’s written statement it was specifically stated that father Ponnusamy Asari had sold the said properties to third parties and the same has to be deleted while amending the Plaint. So, at the time of death of Ponnusamy Asari, those properties were not available in the family. The plaintiff ought to have verified the same and ought to have added the alienees as proper and necessary parties in the Suit and the Suit must fail on account of non-joinder of parties. So, at the time of death of Ponnusamy Asari, those properties were not available in the family. The plaintiff ought to have verified the same and ought to have added the alienees as proper and necessary parties in the Suit and the Suit must fail on account of non-joinder of parties. Ponnusamy Asari has purchased a site in the name of he plaintiff in Thirumanur Town in S.F. No.87/781 an extent of 0.7 1/2cents for a consideration of Rs.15,000/- in 24.09.1987 including the expenses for the sale deed. He also spent a huge amount of Rs.35,000/- for putting up a factory, since the plaintiff and her husband have no means at that time. Hence, it tantamount to partition and she is not entitled to any share over the suit properties. With respect to ‘B’ schedule property, the plaintiff is not entitled to any share over the same as per Section 23 of the Hindu Succession Act of 1956. 8. The Lower Court had, after examining the plaintiff as P.W.1 and the first defendant as D.W.2 and second defendant as D.W.2 and after admitting the documents Ex.A.1 and Ex.B.1 to Ex.B.13 produced on either side, come to a conclusion of decreeing the Suit for 1/3rd share of the plaintiff in respect of Item Nos.1 to 14, 22, 23 and 25 to 27 and ‘B’ schedule property, and dismissed the suit in respect of remaining items in ‘A’ schedule property and ‘C’ schedule property and also the partition and separate possession of ‘B’ schedule property. The first defendant has preferred this Appeal against the decreeing of the Suit in favour of the plaintiff on several grounds. The Lower Court had framed the following issues, and had come to the aforesaid conclusion while preliminarily decreeing the Suit in favour of the plaintiff: .(1) When was the marriage in between Ponnusamy Asari and Rajalakshmi held? And, was the marriage in between them a legal one? .(2) Whether the suit properties were the joint family properties of the parties? And, whether they were joint as joint family properties of the family? .(3) Whether the deposits mentioned in ‘C’ schedule are available? If so, what are the quantum? And, whether they are liable to be partitioned? .(4) Whether the description of the suit properties are correct? .(5) Whether the plaintiff has got right to partition in the suit properties? If so what is her share? .(3) Whether the deposits mentioned in ‘C’ schedule are available? If so, what are the quantum? And, whether they are liable to be partitioned? .(4) Whether the description of the suit properties are correct? .(5) Whether the plaintiff has got right to partition in the suit properties? If so what is her share? .(6) Whether the plaintiff has got right to file the suit for partition? .(7) To what relief the plaintiff is entitled for? 9. On a careful perusal of the pleadings and evidences submitted on either side and the judgment and decree passed by the Lower Court and the grounds of Appeal raised by the appellant/D1 and the arguments advanced by the learned counsel for the appellant and on perusal of the records, this Court could see the following points emanated for consideration in this Appeal: .(1) Whether the plaintiff is not entitled to 1/3rd share in the suit properties as found by the Lower Court? .(2) Whether the Item 1 to 4 of ‘A’ schedule properties are not available for partition? .(3) Whether the plaintiff is not entitled to partition and separate possession of ‘B’ schedule property? .(4) What is the quantum of share available for the plaintiff and the first defendant on the death of the second defendant? .(5) Whether the judgment and decree of the Lower Court are liable to be set aside or modified and the Appeal be allowed? 10. Heard Mrs. Mythili Suresh, learned counsel appearing for the appellant. No appearance for the respondents. 11. Points 1, 2 & 4: The appellant is the first defendant before the Lower Court. The Suit was filed by his sister, the plaintiff, seeking for partition and separate possession of her 1/3rd share in the suit properties. ‘A’ schedule properties are landed properties. ‘B’ schedule property is a house. ‘C’ schedule properties 3rd said to have been the deposits held by the 3rd and 4th defendants in the name of father Ponnusamy. However, the Suit has been decreed for the plaintiffs 1/3rd share in respect of items 1 to 14, 22, 23, 25 to 27 of ‘A’ schedule properties and ‘B’ schedule property and it was dismissed in respect of items 15, 21, 24 of ‘A’ schedule properties and ‘C’ schedule properties. Aggrieved first deferred has preferred this Appeal. .12. The learned counsel for the appellant/D1, Mrs. Aggrieved first deferred has preferred this Appeal. .12. The learned counsel for the appellant/D1, Mrs. Mythili Suresh would submit in her argument that the Lower Court ought to have dismissed the Suit in its entirety as the plaintiff had come forward with a false case that the marriage between the mother of the plaintiff and the first defendant viz., Rajalakshmi with their father took place on 12. 1954 and not on 211. 1956 so as to claim the marriage of their mother as legal one. She would further submit that Items 1 to 4 of the Suit ‘A’ schedule properties were also belonging to the first defendant exclusively and the decree was granted against the said properties also. It is further submitted by the learned counsel that the first defendant had formed a coparcenery with his father Ponnusamy Asari and therefore, he would be entitled to the 1/2 of the suit properties and the father was entitled to the remaining half share in the said properties and on the date of the father, the mother of the plaintiff and the first defendant viz., Rajalakshmi and step mother Sellammal (D2) would be joining together in dividing the properties left out by the father equally 1/4th share and after the death of the mother Rajalakshmi, her 1/4th share would devolve upon the plaintiff and the first defendant equally and therefore, the plaintiff would be at best can claim a share of 3/16 in the suit property. But, however, the Lower Court had decreed for 1/3th share in the available properties. She would further submit in her argument that the plaintiff cannot claim the benefits of amended provision of Section 6 coupled with Section 29-A of Hindu Succession Act, since the plaintiff was married even during the life time of the father, which would be dated prior to the commencement of Act 1 of 1990. She would also submit that the Suit is liable to be dismissed for nonjoinder of necessary parties, who were alleged alienees for the suit properties. She would also submit in her argument that items 1 to 4 of the ‘A’ schedule were already sold by the father during his life time and the preliminary decree passed by the Lower Court including the said properties is not sustainable. She would also submit in her argument that items 1 to 4 of the ‘A’ schedule were already sold by the father during his life time and the preliminary decree passed by the Lower Court including the said properties is not sustainable. She would further submit in her argument that the second defendant being the widow of the further Ponnusamy Asari was entitled to a larger share more than 1/3rd in view of the Judgment of our Apex Court reported in between Gurupad Khandappa Magdum v. Hirabas Khandappa Magdum and others, AIR 1978 SC 1239 . She would also cite a judgment of our High Court reported in between Bagirathi and 5 others v. S. Manivanan and another, 2008 (4) CTC 374 , to the proportion that the daughter can be considered as coparcener in view of the amended Act 39 of 2005 only if the farther was alive on the date of coming into force of the amended provision viz., Section 6(1) of the Act 39 of 2005 as the introduction of Section 6(1) prospective. Therefore, she would submit in her argument that the plaintiff cannot claim to be one of the coparceners of the suit properties left out by the father. She would also submit in her argument that the second respondent/D2 died intestate during the pendency of the Appeal and the plaintiff and the first defendant were recorded as Legal Representatives of the deceased second respondent/D2. She would also agree in her argument that whatsoever be the share allotted to the plaintiff in ‘B’ schedule property could have been partitioned and separate possession could be given to the plaintiff in view of the omission of Section 23 of Hindu Succession Act. Therefore, she would request the Court to set aside or modify the decree passed by the Lower Court and to allow the Appeal accordingly. .13. No appearance for the first respondent. However, I have perused the points raised by the plaintiff before the Lower Court and the points discussed in favour of the plaintiff in the judgment of the Lower Court and the evidence adduced by the plaintiff as P.W.1. 14. On giving anxious consideration to the submissions made by the appellant’s counsel, I could see that the Lower Court had decreed the Suit in respect of 1/3rd share of the plaintiff in Items 1 to 14, 22, 23, 25 to 27 and ‘B’ schedule property. 14. On giving anxious consideration to the submissions made by the appellant’s counsel, I could see that the Lower Court had decreed the Suit in respect of 1/3rd share of the plaintiff in Items 1 to 14, 22, 23, 25 to 27 and ‘B’ schedule property. The claim against the remaining items in ‘A’ schedule properties and ‘C’ schedule properties were negatived by the Lower Court. It is admitted on either side that the properties were originally held as joint family properties by father Ponnusamy Asari and he had married the second defendant long back and subsequently only Rajalakshmi, the mother of the plaintiff and the first defendant, and through her the plaintiff and the first defendant were born. The second defendant had no issues. According to the plaintiffs case, her mother Rajalakshmi was married by the father Ponnusamy Asari for the second time on 211. 1956. However, the said fact was denied by the first defendant by saying that their marriage took place earlier on 12. 1954. Therefore, it would not be barred under the provisions of Hindu Marriage Act, 1955. According to the submissions made, the marriage in between the mother Rajalakshmi and father Ponnusamy Asari took place only after the enforcement of Madras Hindu Bigamy (Prevention and Diverce) Act, in the year 1949. Therefore, the marriage between the mother Rajalakshmi and father Ponnusamy Asari, had whether taken place on 12. 1954 or 211. 1956, the said marriage was not in accordance with the law prevailed then. Therefore, it is a void marriage. The children viz., the plaintiff and the first defendant born through Rajalakshmi for the father Ponnusamy Asari could not be treated as legitimate children. 15. There is no dispute that Rajalakshmi died in the year 1992 after the death of the father Ponnusamy in the year 1990. It is also not in dispute that the father was alive on 23. 1989, when the Act 1 of 1990 came into force benefiting the women to be coparcener in par with other male members. However, if has been specifically argued by the learned counsel for the appellant/D1 that the plaintiff even though comes under the definition of daughter benefited by the amended legislation, she was exempted by the Tamil Nadu State Amendment Act that the daughter who were not married on 23. 1989 should alone claim the said benefits. However, if has been specifically argued by the learned counsel for the appellant/D1 that the plaintiff even though comes under the definition of daughter benefited by the amended legislation, she was exempted by the Tamil Nadu State Amendment Act that the daughter who were not married on 23. 1989 should alone claim the said benefits. Indisputably the plaintiff was married long prior to the said crucial date of enforcement of Act 1 of 1990. For the purpose of better understanding we have to see the extract of Section 29-A of the amended Hindu Succession Act. “ Section 29-A. Equal rights to daughter in coparcenary property.-Notwithstanding anything contained in Section 6 of this Act- .(i) in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son; .(ii) at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the Partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter. Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at he time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter as the case may be; (iii) any property to which a female becomes entitled by virtue of the provisions of clause .(i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by Will or other testamentary disposition; .(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 198; .(v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.” Therefore, the plaintiff even though a daughter as per the definition of the amended Act 1 of 1990, she cannot claim the benefit thereunder since she was a married daughter on the date of enforcement of the said Act. 16. The learned counsel for the appellant would rely on the judgment of this Court reported in between Bagirathi and 5 others v. S. Manivanan and another, 2008 (4) CTC 374 , the relevant passage would run as follows: “A careful reading of Section 6(1) read with 6(3) of the Hindu Succession (Amended) Act clearly indicates that a daughter can be considered as a coparcener only if her father was a coparcener at the time of coming into force of the amended provision. It is of course true that for the purpose of considering whether the father is a coparcener or not, the restricted meaning of the expression ‘Partition’ as given in the explanation is to be attributed.” As per the finding, we could see that the father Ponnusamy Asari died in the year 1990 and on the date of enforcement of Act 1 of 1990 viz., 23.08.1998 he was a coparcener and therefore, the plaintiff being a daughter could be considered for the benevolent provision subject to its exemption. From Section 29-A of Hindu Succession (Tamil Nadu Amendment) Act, we could see that the provisions of amended Section 29-A and other provisions in that Chapter shall not apply to a daughter married prior to the date of enforcement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, Act 1 of 1991. The plaintiff was admittedly married prior to 23. 1989 and therefore, she is not entitled to claim the benefit of the said Chapter comprising benefits of a coparcener as per the Amended Act 2005. 17. In the judgment of our Honourable Apex Court reported in between Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) and others v. K. Devi and others, 1996 (4) SCC 76 , Section 16 of the Hindu Marriage Act, 1995 has been dealt with. It has been held in the said judgment that the children born of the void second marriage would inherit share in the properties of their parents by operation of the amended Section 16. According to the said judgment of our Apex Court, the status of legitimacy has been given under Section 16 of Hindu Marriage Act. However, that legitimacy is restricted in respect of the properties of the parents only. The relevant passage would run as follows: “In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purpose, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.” Similar view has been expressed in the Judgment of this Court reported in between Perumal Gounder and another v. Pachayappan and others, AIR 1990 Mad. 110 , wherein it has been held as follows: “Under Section 16(1) of the Hindu Marriage Act, after the amendment in 1976, the offspring of a void marriage, who had been till then regarded as illegitimate, is declared to be legitimate and under Section 16(3), such children are conferred rights in or to the property of their parents in cases where, but for the passing of the amending Act, such a child could not have acquired rights by reason of his not being the legitimate child. On the facts of this case, if follows that though in 1953, at the time when married R, the marriage was void and had continued to be so even after the coming into force of the Hindu Marriage Act, yet, by reason of Section 16(1) and (3) of the Hindu Marriage Act as amended in 1976, children had been declared to be the legitimate children of A and rights in the properties of A had also been conferred on them. However, such children were not granted status of coparceners so as to Claim Partition of joint property. At best they were entitled to rights in properties of A after his death.” According to the said dictum, the illegitimate children were given equal right with legitimate children as per Section 16 of the Act and they would inherit the properties of their parents and would not be the coparcenery properties. .18. Therefore, the plaintiff even though considered to be entitled to the beneficial legislation of the Amendment Act 2005, she cannot claim to be a coparcener in view of the judgments of our Honourable Apex Court and this Court reported in Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) and others v. K. Devi and others, 1996 (4) SCC 76 and Perumal Gounder and another v. Pachayappan and others, AIR 1990 Mad. 110 respectively. The said position of law is also applicable to the first defendant, who claims to be a coparcener with the father Ponnusamy Asari. The first defendant also cannot share the property held by the father Ponnusamy Asari, which were joint family properties. The said portion of joint family properties cannot also be shared with the second defendant, who was the first wife of the deceased father Ponnusamy Asari, since she cannot be treated as coparcener in the joint family properties. Admittedly, there was no dispute in between the second defendant (first wife) and the father Ponnusamy Asari during the life time of Ponnusamy Asari, which could have necessitated the dividing of the property. Therefore, the father Ponnusamy Asari should have been considered as holding the property with him intact till his death and thereafter, only properties held by Ponnusamy Asari could be inherited by the second defendant widow, the plaintiff and the first defendant as daughter and son being the Class I heirs as per the provisions of Hindu Succession Act, 1956. Therefore, the father Ponnusamy Asari should have been considered as holding the property with him intact till his death and thereafter, only properties held by Ponnusamy Asari could be inherited by the second defendant widow, the plaintiff and the first defendant as daughter and son being the Class I heirs as per the provisions of Hindu Succession Act, 1956. In such Circumstance, the properties available on the death of Ponnusamy Asari would be divided by the plaintiff, the first defendant and second defendant equally. Therefore, the finding of the Lower Court that the plaintiff was entitled to the available properties viz., Items 1 to 14, 22, 23, 25 to 27 in ‘A’ schedule property and ‘B’ schedule properties is found to be otherwise correct, even after the beneficial legislation passed in favour of the women. However, the Partition of ‘B’ schedule property was not granted by the Lower Court in favour of the plaintiff. .19. The learned counsel for the appellant/D1 would submit that the share of the plaintiff in ‘B’ schedule property can be declared for Partition and separate possession also in view of the omission of Section 23 of Hindu Succession Act. In view of the omission of bar contemplated under Section 23 of Hindu Succession Act to have a division of dwelling house, the ‘B’ schedule property is also liable to be divided in favour of the plaintiff. The learned counsel for the appellant had not shown any evidence to the effect that the items 1 to 3 were sold by the father during his life time so as to exclude the properties from the purview of division. Therefore, the judgment passed by the Lower Court to declare 1/3rd share of the plaintiff in Items. 1 to 14, 22, 237 25 to 27 and ‘B’ schedule property cannot be interfered with. However, the plaintiff is also entitled for the division of ‘B’ schedule property also as per the beneficial amendment of Section 23 of the Hindu Succession Act. Apart from that the second defendant was dead during the pendency of the present Appeal and had not executed any Settlement or Will in respect of disposition of her share in the suit properties. The appellant/D1 and the 1st respondent/plaintiff were recorded as the Legal Representatives of the deceased R2/D2. Therefore, the 1/3rd share belonging to R2/D2 will also devolve upon the plaintiff and the first defendant equally. The appellant/D1 and the 1st respondent/plaintiff were recorded as the Legal Representatives of the deceased R2/D2. Therefore, the 1/3rd share belonging to R2/D2 will also devolve upon the plaintiff and the first defendant equally. Therefore, the appellant/D1 would be entitled to half share and the plaintiff would be also entitled to half share in the suit properties. These points are decided accordingly in favour of the first respondent/plaintiff. 20. Point No.3: The Lower Court had disallowed the Partition of ‘B’ schedule property. In view of Section 23 of the Hindu Succession Act and in view of the decision reached in the points 1 and 2, it has been found that the omission of Section 23 of Hindu Marriage Act will enable the plaintiff to get division of dwelling house ‘B’ schedule property regarding her share over the suit properties. Therefore, the plaintiff is found to be entitled for Partition of ‘B’ schedule property. Accordingly, this point is also decided in favour of the first respondent. .21. Point No.5: The Appeal has been preferred by the first defendant against the grant of preliminary decree in favour of the plaintiff in declaring 1/3rd share in favour of the plaintiff/R1 in Item Nos. 1 to 14, 22, 23, 25 to 27 of ‘A’ schedule properties and ‘B’ schedule property and the Partition of the said ‘A’ schedule properties alone. However, this Court had come to a conclusion that the said decision cannot be set aside. Due to the subsequent event of death of the second defendant, the share of the second defendant will also devolve equally upon the appellant/D1 and R1/plaintiff and they are entitled to half share in the suit properties. Therefore, in view of the subsequent event, the appellant/D1 and R1/plaintiff are each entitled to half share in the suit properties viz., Item Nos. 1 to 14, 22, 23, 25 to 27 of ‘A’ schedule property and ‘B’ schedule property. Therefore, it has become necessary to confirm the judgment of the Lower Court and to modify the preliminary decree alone passed by the Lower Court due to the change of law and subsequent event of death of D2. Accordingly, the preliminary decree alone is modified to the effect that the plaintiff is entitled to 1/2 share in Item Nos. Therefore, it has become necessary to confirm the judgment of the Lower Court and to modify the preliminary decree alone passed by the Lower Court due to the change of law and subsequent event of death of D2. Accordingly, the preliminary decree alone is modified to the effect that the plaintiff is entitled to 1/2 share in Item Nos. 1 to 14, 22, 23, 25 to 27 and ‘B’ schedule property and Partition and separate possession of his share and the first defendant is also entitled to similar share in the aforesaid properties. 22. In fine, the judgment of the Lower Court is confirmed and the preliminarily decree alone is modified as stated supra. Therefore, the Appeal preferred by the first defendant is liable to be dismissed and accordingly, the same is dismissed with the modification in the preliminary decree as stated supra. No costs.