Madras High Court
Selvarasan vs Angammal on 1 March, 2021
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
SA.Nos.168 & 170 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.03.2021
CORAM
THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY
S.A.Nos.168 & 170 of 2021
and C.M.P.No.3454 of 2021
1.Selvarasan
2.Prabakaran ...Appellants in
S.A.Nos.168 of 2021
Vs.
1.Angammal
2.Sarasu ...Respondents in
S.A.Nos.168 of 2021
1.Selvarasan
2.Suseela ...Appellants in
S.A.Nos.170 of 2021
Vs.
1.Angammal
2.Sarasu ...Respondents in
S.A.Nos.170 of 2021
Prayer in S.A.No.168 of 2021:Second Appeal filed under Section 100 of the
Code of Civil Procedure, against the judgment and decree dated 07.02.2020
made in A.S.No.77 of 2018 on the file of Principal District/Sessions (Fast Track
Mahila) Court, Namakkal confirming the judgment and decree dated 01.10.2018
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https://www.mhc.tn.gov.in/judis/
SA.Nos.168 & 170 of 2021
made in O.S.No.27 of 2013 on the file of the Principal Subordinate Court,
Namakkal.
Prayer in S.A.No.170 of 2021:Second Appeal filed under Section 100 of the
Code of Civil Procedure, against the judgment and decree dated 07.02.2020
made in A.S.No.78 of 2018 on the file of Principal District/Sessions (Fast Track
Mahila) Court, Namakkal confirming the judgment and decree dated 01.10.2018
made in O.S.No.107 of 2016 on the file of the Principal Subordinate Court,
Namakkal.
For Appellant : Mr.M.Ashwin Kumar
JUDGEMENT
These Second Appeals have been filed to set aside the judgment and decree 07.02.2020 made in A.S.Nos.77 and 78 of 2018 on the file of the Principal District/Sessions (Fast Track Mahila) Court, Namakkal confirming the judgment and decree dated 01.10.2018 made in O.S.Nos.27 of 2013 and 107 of 2016 on the file of the Principal Subordinate Court, Namakkal.
2.According to the appellants, the female legal heirs got married in the year 1989, therefore they are entitled only for 2/6th share in the suit property but the Courts below without considering all these facts has awarded 2/3 rd share to the respondents/plaintiffs.
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3.The learned counsel for the appellants fairly submitted that in view of the law settled by the Hon'ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma reported in 2020 Volume 9 SCC Page I, the female legal heirs are also equally entitled for share in the ancestral property on par with the male legal heirs. The relevant portion of the above said judgment is extracted hereunder:
“129. Resultantly, we answer the reference as under:
(i) 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.
(ii) 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.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) 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 3/6 https://www.mhc.tn.gov.in/judis/ SA.Nos.168 & 170 of 2021 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.
(v) 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.”
4.A perusal of the above judgment would shows that the female legal 4/6 https://www.mhc.tn.gov.in/judis/ SA.Nos.168 & 170 of 2021 heirs are entitled for equal share in the ancestral property on par with the male legal heirs. The learned counsel for the appellants also fairly submitted that as per the law settled by the Hon'ble Apex Court, the female legal heirs are entitled for equal share in the ancestral property. In view of the above citation, the respondents/plaintiffs are entitled for 2/3rd share in the suit schedule property.
Therefore, I do not find any infirmity in the order passed by the Courts below and no substantial question of law arises for consideration.
5.Accordingly, the present Second Appeals are dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
01.03.2021 Index:Yes/No Internet:Yes/No Speaking order/Non-speaking order rst To:
1.The I Additional District Court, Coimbatore.
2.The II Additional Subordinate Court, Coimbatore.5/6
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