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2025 DIGILAW 125 (MAD)

Gopal v. Shanthi

2025-01-06

R.N.MANJULA

body2025
JUDGMENT : This Second Appeal has been filed to set aside the judgment and decree dated 28.02.2011 made in A.S.No.62 of 2009 on the file of the Sub- Court, Ranipet reversing the judgment and decree dated 29.08.2008 made in O.S.No.83 of 2007 on the file of the Court of District Munsif-cum-Judicial Magistrate, Arcot. 2 . Heard Mr.A.Thiagarajan, learned Senior Counsel for the appellants and Mr.P.Mani, learned counsel for the first respondent and perused the materials available on record. 3 . The fourth defendant has purchased the suit property from the first defendant. The plaintiff who is the daughter of the first defendant and the sister of the defendants 2 and 3 has filed a suit for partition and the same was dismissed by the Trial Court. On the First Appeal preferred by the plaintiff, the First Appellate Court allowed the First Appeal and reversed the judgment and decreed the suit and passed a preliminary decree by allotting 1/4 share to the plaintiff. Aggrieved over that, the first and fourth defendants have preferred this Second Appeal. The first defendant died during the pendency of this Appeal and his legal heirs are already on record as the plaintiff and the defendants 2 and 3. 4. The short facts pleaded in the plaint are as follows: The plaintiff is the daughter of the first defendant and sister of the defendants 2 and 3. The plaintiff and the defendants 1 to 3 had joint family properties at Manguppam Village along with the suit property. In a family arrangement, the suit properties were allotted to the share of the plaintiff and she was in enjoyment of the same. Due to the difference of opinion between the plaintiff and the first defendant, the first defendant was trying to grab the suit property allotted to the plaintiff with the help of the fourth defendant. Hence, the plaintiff has caused a legal notice to the defendants 1 to 4. On receipt of the same, they have sent a reply notice containing false allegations. Hence, the plaintiff had demanded division of the suit property into four shares and allot one share to her. But the first defendant had refused to divide and tried to create sham and nominal documents in favour of the fourth defendant and it will not bind the interest of the plaintiff. Hence, the plaintiff had demanded division of the suit property into four shares and allot one share to her. But the first defendant had refused to divide and tried to create sham and nominal documents in favour of the fourth defendant and it will not bind the interest of the plaintiff. As the defendants 1 to 3 are not amenable to partition in a proper manner, the plaintiff has filed a suit for partition of 1/4 share. 5. The averments made in the written statement filed by the first defendant are as follows: The written statement of the first defendant has been adopted by the fourth defendant. D2 and D3 remained exparte. The relationship between the plaintiff and the first defendant is true. It is false to state that the plaintiff and the first defendant were jointly in enjoyment of the suit property. The plaintiff has got no individual or joint right over the suit property. The plaintiff has got married in the year 1979 and she cannot claim any partition stating that she has right in the ancestral properties. The first defendant had never promised to give any share to the plaintiff in the suit property and hence, the plaintiff did not have any share. The first defendant has got every right to deal with the property and he has validly alienated the suit property to discharge family debts by executing a sale deed in favour of the bonafide purchaser and hence, the purchaser has got the title transferred in his favour. 6. On the basis of the above pleadings, the Trial Court has framed the following issues for consideration: "1. Whether the plaintiff is entitled to get 1/4th share in the suit property as prayed? 2. Whether the plaintiff is entitled to get the relief of permanent injunction to restrain the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit property as prayed? 3. Whether there is no cause of action? 4. To what relief is the plaintiff entitled?" 7. During the course of the Trial, on the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A1 to A5 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.B1 to B6 were marked. 8. At the conclusion of the trial and on considering the evidence on record, the Trial Court had dismissed the suit. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.B1 to B6 were marked. 8. At the conclusion of the trial and on considering the evidence on record, the Trial Court had dismissed the suit. On the First Appeal filed by the plaintiff, the First Appellate Court allowed the First Appeal and reversed the judgment and decree of the Trial Court and proceeded to decree the suit as prayed and passed a preliminary decree for partition of the plaintiff's 1/4 share in the suit property. Aggrieved over that, the first and fourth defendants have preferred this Second Appeal by raising the following substantial question of law: "Whether the Lower Appellate Court is correct in law to reverse the judgment of the Trial Court rendered as per the provisions of Section 29-A of the Hindu Succession Tamil Nadu Amendment Act, 1989, Section 6 of the Hindu Succession (Amendment) Act, 2005 and Section 8 of the Hindu Succession Act, 1956?" 9. The learned Senior Counsel for the appellants submitted that the first defendant's father Thangavel Pillai had purchased the suit property by virtue of the sale deed dated 12.02.1960 which was marked as Ex.A1 and the property was never treated as a joint family property. Thangavel Pillai has got three sons. The first defendant is one of the sons and he inherited 1/3 share in the suit property. The other two sharers are the brothers of the first defendant and they have given their share to the first defendant himself. The first defendant being a class I legal heir of his father, had inherited the suit property from his father. 9.1. During the life time of the first defendant, the plaintiff will not get any right over the suit property. No where in the plaint it is pleaded that the suit property has been purchased with the joint family income. The First Appellate Court has applied the amended provision of Section 6 of the Hindu Succession Act and had decreed the suit and it is not correct. The suit property was sold to the fourth defendant vide Ex.B4 dated 16.09.2005. The plaintiff has issued a legal notice on 20.09.2005 subsequent to the sale of this property. Therefore, the plaintiff has got no right to maintain the suit. It is wrong on the part of the First Appellate Court to decree the suit. 10. The suit property was sold to the fourth defendant vide Ex.B4 dated 16.09.2005. The plaintiff has issued a legal notice on 20.09.2005 subsequent to the sale of this property. Therefore, the plaintiff has got no right to maintain the suit. It is wrong on the part of the First Appellate Court to decree the suit. 10. The learned counsel for the first respondent / plaintiff submitted that the admitted case of the plaintiff is that the suit property is an ancestral joint family property. In such case, the plaintiff ought to have been treated as a co-sharer and being a co-sharer, she is entitled to 1/4 share in the suit property. 11. The suit property was purchased in the name of the plaintiff's grandfather. The first defendant has admitted that the suit property is his ancestral property. No partition is effected before the amendment and hence, the plaintiff could be treated as a joint family member and she is entitled to 1/4 share. The first defendant himself has admitted in the reply notice that he has been allotted with 42 cents in the family partition between himself and his brothers Chinnappa and Duraisamy. Hence, the plaintiff is entitled to atleast 1/4 share in the share allotted to the first defendant in the family partition, since it is only an ancestral property. 12. But according to the reply notice (Ex.A3) sent by the first defendant who is the father of the plaintiff, it is seen that the suit property was partitioned between himself and his brothers Chinnappa and Duraisamy. In the said partition, the first defendant has been allotted with 42 cents. His brothers Chinnappa and Duraisamy had also given their share to the first defendant himself and hence, the first defendant has become entitled to the whole of the suit property. In the family partition that had occurred between the first defendant and his brothers, the first defendant had got only 42 cents in the suit property. As the remaining portion of the suit property has been given to him by his brothers, that portion of the property only can be considered as a self-acquired property of the first defendant. So, the plaintiff can claim any ancestral right only in respect of 42 cents which was allotted to the first defendant in the family partition in respect of the suit property. 13. So, the plaintiff can claim any ancestral right only in respect of 42 cents which was allotted to the first defendant in the family partition in respect of the suit property. 13. As the rest of the portion in the suit property is a self-acquired property of the first defendant, the plaintiff cannot claim any share in the said portion as a co-parcener or joint family member along with the defendants 1 to 3. However, the plaintiff's right to seek partition of ¼ share in respect of 42 cents cannot be disputed. Irrespective of the year during which the plaintiff got married, the plaintiff's entitlement to inherit the share in the ancestral property as a co-parcener has been well settled by virtue of an amendment to Hindu Succession Act, 2005 and it has been later confirmed in the Judgment of the Hon'ble Supreme Court in the case of Vinitha Sharma Vs. Rakesh Sharma and Others, reported in AIR 2020 SC 3717 14. So far as 42 cents is concerned, no partition had effected among the defendants at any point of time before the amendment to Hindu Succession Act has come into effect. Hence, the plaintiff as a co-parcener is entitled to inherit ¼ share in 42 cents allotted to her father's share in the partition held between himself and his brothers. But the First Appellate Court had omitted to make a distinction as to the remaining portion of the suit property. The said remaining portion is the self-acquired property of the first defendant as the same has been given back to him by his brothers. 15. As the self acquired nature of the portion of the property was not taken into account by the First Appellate Court and the preliminary decree has been granted for ¼ share for the whole of the suit property, the judgment and decree of the First Appellate Court requires modification.The plaintiff's entitlement for partition lies in respect of only 42 cents for which, the defendants 1 to 3 along with the plaintiff are the co-parceners. Hence, the plaintiff is entitled to get ¼ share only in respect of 42 cents and not for the whole of the suit property. 16 . Hence, the plaintiff is entitled to get ¼ share only in respect of 42 cents and not for the whole of the suit property. 16 . In the result, this Second Appeal is partly allowed and the judgment and decree of the First Appellate Court is modified to the extent of granting ¼ share to the plaintiff only in respect of 42 cents in the suit property and the suit is decreed and a preliminary decree for partition is granted for 1/4 share in 42 cents in the suit property in favour of the plaintiff. This Second Appeal is dismissed in respect of the remaining portion of the suit property. No costs. Consequently, connected miscellaneous petition is closed.