Madras High Court
Kandasamy Gounder (Died) vs Selvam on 18 November, 2021
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Delivered On : 02.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Appeal Suit No.1025 of 2012
1.Kandasamy Gounder (Died)
2.Kolandaivel ... Appellants
(2nd Appellant and sole Respondent
are the LRs of the deceased 1st
Appellant viz., Kandasamy as per
memo dated 18.11.2021 in CSR
No.33885 vide Court order dated
22.12.2021 made in A.S.No.1025 of
2012 by AANJ)
Versus
Selvam ... Respondent
PRAYER: First Appeal filed under Section 96 of Civil Procedure Code to
set aside the judgment and decree dated 26.07.2012 passed in O.S.No.28 of
2011 on the file of the learned Principal District Judge, Namakkal.
For Appellants : Ms.Mitranesha, B.S.
for Mr.V.Raghavachari
For Respondent : Mr.P.Mani
Page 1 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
JUDGMENT
This Appeal Suit had been filed to set aside the judgment and decree
dated 26.07.2012 passed in O.S.No.28 of 2011 on the file of the learned
Principal District Judge, Namakkal.
2. The Respondent herein is the Plaintiff who had laid the suit for
partition and separate possession of 1/3rd share in the suit properties, for
declaration that the partition deed dated 07.07.2010 entered between the
Defendant as null and void and for permanent injunction.
3. For the sake of convenience, the parties are referred to as per
their litigative status in the trial Court.
4. The brief facts, which are necessary for the disposal of this
Appeal Suit, are as follows:-
2.1. The suit properties are joint family ancestral properties
belonging to the Plaintiff and the Defendants. That all are in joint possession
and enjoyment of the same without any division by metes and bounds and
Page 2 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
that the Plaintiff is entitled to 1/3rd share in the suit properties. That despite
demands by the Plaintiff, that Defendants have not effected partition of the
suit properties. That on 30.06.2010 when the Plaintiff requested the
Defendants to effect partition. However, behind the back of the Plaintiff, the
Defendants entered into a partition deed between them on 07.07.2010. The
said partition deed is not acted upon and is not binding on the Plaintiff.
Therefore, she caused legal notice sent to the Defendants on 20.08.2010. To
which the Defendants sent a reply with false allegations on 25.08.2010.
2.2. Per contra, the Defendants filed their written statement
contenting that the Plaintiff is not entitled to any relief in the suit. That on
24.04.1981 itself a joined registered partition took place between one Palani
Gounder (brother of first Defendant) on the one hand by adopting “A”
schedule property and between the first and second Defendants on the other
hand by allotting “B” schedule property. That since the date of the partition
the Defendants have been in possession and enjoyment of the “B” schedule
properties. As the Plaintiff was given in marriage in or about the year 1971,
the Plaintiff is not entitled to any relief in the suit and the suit is liable to be
Page 3 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
dismissed with costs. That further the husband of the Plaintiff was one of the
attestors in the said partition deed dated 24.04.1981. The fact of the said
partition was even not mentioned in the partition deed dated 07.07.2010 and
that the suit properties are the absolute and separate properties of the
Defendants. The Court fee paid is not proper as the Plaintiff was never in
possession and enjoyment of the suit property.
2.3. Issues were framed and the case went on trial. Two witnesses
were examined on the Plaintiff's side as P.W-1 and P.W-2 and three
documents were marked as Ex.A-1 to Ex.A-3. On the side of Defendants two
witnesses were examined as D.W-1 and D.W-2 and four documents were
marked as Ex.B-1 to Ex.B-4. Ex.A-1 is the partition deed dated 07.07.2010.
Ex.A-2 is the legal notice dated 20.08.2010. Ex.A-3 is the reply notice dated
25.08.2010. Ex.B-1 is the partition deed date 24.04.1981. Ex.B-2 is the sale
deed dated 13.02.1925. Ex.B-3 is the sale deed dated 12.08.1938 and Ex.B-4
is the sale deed dated 22.08.1946. Ex.B-2, Ex.B-3 and Ex.B-4 are in the
name of Mari Gounder. The trial Court based on the oral and documentary
evidences, decreed the suit granting 1/3rd share to the Plaintiff in the suit
Page 4 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
properties.
2.4. Aggrieved by the judgment and decree dated 26.07.2012 passed
in O.S.No.28 of 2011 by the learned Principal District Judge, Namakkal, the
Defendants had preferred this Appeal Suit.
3. Ms. Mitraneshaa, B.S., learned Counsel representing
Mr.V.Raghavachari, learned Counsel for Appellants submitted her
arguments. As per her submissions, the Appellants herein are the Defendants
in O.S.No.28 of 2011 on the file of the learned Principal District Judge,
Namakkal. The Plaintiff in O.S.No.28 of 2011 is the daughter of first
Defendant – Kandasamy Gounder and sister of second Defendant -
Kolandaivel. The paternal grandfather of the Plaintiff – Mari Gounder had
two sons – Palani Gounder and Kandasamy Gounder. The partition of the
joint family property was effected in the year 1981 through a registered
partition deed dated 24.04.1981. The joint family property of Mari Gounder
was partitioned between his sons – Palani Gounder and Kandasamy Gounder
and son of Kandasamy Gounder. 'A' schedule property was allotted to Palani
Page 5 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
Gounder and 'B' schedule property was allotted to Kandasamy Gounder and
his son Kolandaivel. The Plaintiff was married in or about the year 1971 and
the Plaintiff's husband Murugesan was an attesting witness to the partition
deed between the sons of Mari Gounder viz., Kandasamy Gounder and
Palani Gounder. The Plaintiff is aware of those developments. The said
partition deed was a registered partition deed.
4. From the date of partition, the family properties are the separate
properties of Kandasamy Gounder. Therefore, the Plaintiff cannot seek the
relief of declaration that the partition deed executed between the Defendants
1 and 2 – father and son as not binding on the Plaintiff. Without challenging
the 1981 partition deed, the Plaintiff cannot challenge the partition deed
between the Defendants 1 and 2 of the year 2010. From 1981, the suit
property was treated as separate property of Kandasamy Gounder and the
claim of the Plaintiff that it is to be treated as joint family property cannot be
accepted as per the provisions of Hindu Succession Act. The Defendants 1
and 2 had clearly in their written statement denied the claim of the Plaintiff.
In the evidence, the Plaintiff had admitted in her cross-examination that her
Page 6 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
husband had signed as a witness to the partition deed between the sons of
Mari Gounder viz., Palani Gounder and Kandasamy Gounder. Therefore, the
claim of the Plaintiff seeking partition of the property, which is in possession
of the Defendants, as though it is a joint family property is misconceived and
the suit for partition by the married daughter who was married prior to 1981
is not maintainable. Therefore, the proposition of law that the daughter is
also entitled to claim partition and equal share as equal to the son as per
Hindu Succession Act as amended in 2005 will not hold good to the
contention of the Plaintiff. The learned Principal District Judge, Namakkal,
had ignored those proposition of law as laid down by the Hon'ble Supreme
Court and had decreed the suit granting 1/3rd share in the joint family
property which is actually the separate property of Kolandaivel Gounder.
Therefore, this Appeal is to be allowed and the preliminary decree passed by
the learned Principal District Judge, Namakkal in O.S.No.28 of 2011
allotting 1/3rd share to the Plaintiff is found unreasonable and unacceptable in
the eyes of law. Therefore, the Appeal is to be allowed and O.S.No.28 of
2011 is to be dismissed.
Page 7 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
5. In support of her contention, the learned Counsel for the
Appellants relied on the following rulings:-
5.1. In the case of Chinna Palanisamy Gounder -vs- Latha and
others reported in (2017) 1 Mad LJ 759 wherein this Court had held as
follows:
“24. As per the provisions of Hindu Succession Act, 1956, considering the
devolution of interest under Section 8 of the Hindu Succession Act, 1956, amongst
the Class-I heirs, the properties derived by the first Defendant from his father
could only be treated as his separate properties and not as the joint family
properties of the first Defendant and his children viz. the Plaintiff 2 and 3. With
reference to the above position of law, there are ample authorities and in this
connection, a useful reference may be made to the decisions reported in AIR 1979
MADRAS 1 (The Additional Commissioner of Income-tax, Madras-1 V.
P.L.Karuppan Chettiar), 1993 Supp (1) Supreme Court Cases 580 (Commissioner
of Income Tax V. P.L.Karuppan Chettiar), (1986) 3 Supreme Court Cases 567
(Commissioner of Wealth Tax, Kanpur and Others V. Chander Sen And Others),
(2008) 3 Supreme Court Cases 87 (Bhanwar Singh V. Puran And Others) and the
latest decision (2016) 4 Supreme Court Cases 68 (Uttam V. Saubhag Singh and
Others). A perusal of the above said decisions would go to show that when the son
inherits the property, as per Section 8 of the Hindu Succession Act, 1956, he does
not take it as Kartha of his own undivided family, but take it in his individual
capacity. Therefore, it could be seen that as per the authoritative pronouncements
of the Apex Court and our High Court, the suit properties derived by the first
Defendant under Ex.A6 could only be treated as the separate properties of the first
Defendant and not the joint family properties of the first Defendant and the
plaintiffs 2 and 3 as claimed by the plaintiffs. It could be seen that in toto, on a
conjoint reading of Sections 4,8,19 and30of the Hindu Succession Act, 1956, if the
self acquired property or joint family property, once they get devolved in
accordance with Section 8 of Hindu Succession Act, 1956, on principles of
intestacy, the joint family property ceases to be joint family property in the hands
of the various persons, who have succeeded to it as they hold the property as
tenants in common and not as joint tenants.
25. In the light of the above decisions, when it is found that as per law, the
Page 8 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
properties derived by the first Defendant under Ex.A6 are his separate properties,
the Courts below have erred in findings fault on the part of the Defendant in
describing the suit properties as his own properties in the sale transaction Ex.B1.
Therefore, it could be seen that the first Defendant has rightly described the suit
properties as his own properties in Ex.B1 sale deed. So, when it could be seen that
the suit properties are the separate properties of the first Defendant and when
there is no impediment on his part to alienate the same and when as found earlier,
the first Defendant is not shown to have been indulging in illegal/immoral
activities or excluded the plaintiffs and discarded their interest and welfare, it
could be seen that the first Defendant is not required to seek sanction from the
court to convey his separate properties in favour of the second Defendant. Further,
it could be seen that when it is found that the suit properties are the separate
properties of the first Defendant, the claim of 2/3 share by the plaintiffs 2 & 3 on
the footing that the suit properties are the joint family properties of the first
Defendant and the plaintiffs 2 & 3 is completely ruled out. Therefore, it could also
be seen that the plaintiffs 2 & 3 and in particular, the second Plaintiff is not
entitled to claim any share in the properties as the suit properties are the separate
properties of the first Defendant.”
5.2. In the case of Balakrishnan and others -vs- Selvi and others
reported in (2017) 4 LW 681 wherein this Court has held as under:
“23. ... It is for the Plaintiff either to implead those parties or ought
to have deleted the portion of the suit property owned by them. When the
Plaintiff has failed to carry out necessary amendment to the pleadings, the
lower appellate Court is wrong in holding that the Plaintiff was not given
opportunity by the trial Court to implead the necessary parties. At the least
the lower appellate Court should have considered this and deleted the
portion of land held by the third parties. Without applying his mind, he has
passed a blanket order of partition as if the properties are ancestors
properties of the first Defendant and the Plaintiff is entitled for 1/6th share
in all the property. The lower appellate Court has also erred in holding
that after the amendment to the Hindu Succession Act,1956 inserting
Section 29-A, the Section 16(3) of the Hindu Marriage Act, 1955 has
become irrelevant and the Plaintiff is entitled to seek share in the ancestral
property of her father even during his life time. This legal error of the
lower appellate Court is bound to be annulled for the following reasons:
(a)Section 16(3) of the Hindu Marriage Act, 1955, while conferring the
status to the child born through the void marriage also incapacitate such
Page 9 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
children from claiming right to the property of any person other than the
parent.
(b)When there is a specific restriction to claim right over the property other
than the parents, by virtue of Section 29-A of the Hindu Succession Act,
1956 an illegitimate child cannot seek right over the properties as a co-
parcener. The matter, what is now referred to the Larger Bench of the
Hon'ble Supreme Court, is to determine whether an illegitimate child can
seek right in the self acquired property of the parent alone or the joint
family property also?
(c)The order of reference to reconsider the decision of the Hon'ble Supreme
Court rendered in Jinia Keotin and others v. Kumar Sitaram Manjhi and
others reported in (2003)1 SCC 730. Till any decision is rendered contra to
these judgments by Larger Bench, verdict of the Hon'ble Supreme Court in
these judgments alone holds the failed.
(d)Further, it is also to be pointed out that at the time of filing of the suit,
the first Defendant was alive. So, whatever right the illegitimate child can
claim only be the property of the parent and nothing more. When father is
alive, the question of inheritance does not arise.”
5.3. In the case of K.P.Subburaj -vs- V.Prabhakar and others
reported in (2019) 3 LW 121 wherein this Court has held as under:
“Family And Personal Laws - Hindu Law - Family Property,
Succession and Inheritance - Joint Family Property/HUF Property vis-a-
vis Self-acquired Property/Individual Income - Presumption/Burden of
proof - Alienation of Property/Legal necessity - Whether first item of suit
properties, was a self-acquired property or it is an ancestral property -
Single Judge directed defendants 1 and 2 therein to deliver vacant
possession of suit property Property in question acquired by father and
mother of first defendant and grandparents of plaintiff will not be presumed
to be joint family properties - Held, in absence of evidence, case of first
defendant has to be accepted that first item No. 1 of suit properties was
purchased out of income of his father and mother - Plaintiff has miserably
failed to prove that proceeds of ancestral properties were used for
Page 10 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
purchase of item No. 1 of suit properties - Suit first item of properties is
self-acquired property of first defendant Question of considering
inheritance of ancestral properties does not arise in this case - Judgment
and decree passed by single judge confirmed - Original Side Appeals
dismissed Hindu Succession Act, 1956, S. 8 Constitution of India, Art.
226.”
5.4. In the case of Arshnoor Singh -vs- Harpal Kaur and others
reported in (2020) 14 SCC 436 wherein this Court has held as under:
“A. Family and Personal Laws – Hindu Law – Coparcenary
property – Mitakshara Law – Male ancestor inherits property from
his paternal ancestors three degrees above him as coparceners, the
moment he is born – Even if property partitioned amongst sons,
property inherited by them would remain coparcenary property qua
their male descendants up to three degrees below them – Where
succession opened prior to date of commencement of Hindu
Succession Act, parties to whom Mistakshara Law applied would
continue to be governed by the same – Hindu Succession Act, 1956,
S.4.”
6. In the case of Chinna Palanisamy Gounder -vs- Latha and
others reported in (2017) 1 Mad LJ 759 it is reiterated that the son inherits
the property in the partition, he does not take it as Kartha of the family but as
his separate property. The learned Counsel appearing for the Appellants also
invited the attention of this Court to Sections 4, 8, 19 and 30 of the Hindu
Succession Act, 1956. Under Section 8 of the Hindu Succession Act, the
Page 11 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
property ceases to be joint family property.
7. Relying on the above rulings, the learned Counsel for the
Appellants submitted that the contention of the learned Counsel for the
Plaintiff before the trial Court cannot be accepted. The judgment of the
learned Principal District Judge in O.S.No.28 of 2017 dated 26.07.2012 is
against the reported decisions of the Hon'ble Supreme Court and therefore, it
is perverse and the same is to be set aside.
8. Thiru. P. Mani, learned Counsel appearing for the Respondent
submitted his arguments. As per the submissions of the learned Counsel for
the sole Respondent 'B' schedule property that is allotted to Kandasamy
Gounder and the second Defendant was enjoyed as joint family property only
as in the partition deed dated 24.04.1981 between the sons of Mari Gounder,
the second Defendant who is the grandson of Mari Gounder was also added
as a co-sharer. When the Plaintiff issued lawyers notice seeking partition, the
Defendants 1 and 2 had created another partition deed dated 07.07.2010
amongst themselves thereby defeating the claim of the Plaintiff. The learned
Page 12 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
Counsel for the sole Respondent/Plaintiff in the trial Court had invited the
attention of this Court to the recitals in Ex.A-1. It clearly states that it was
joint family property between Defendants 1 and 2 in O.S.No.28 of 2017. On
proper appreciation of evidence and based on the documents Ex.A-1 to Ex.A-
3 and Ex.B-1 to Ex.B-4, the learned Principal District Judge, Namakkal, had
granted preliminary decree. Therefore, the appeal lacks merit and is to be
dismissed.
9. In support of his contention, the learned Counsel for the
Respondent relied on the following rulings:
9.1. In the case of Binod Bihari Lal and others -vs- Rameshwar
Prasad Sinha and others reported in AIR 1978 SC 1201 wherein the Hon'ble
Supreme Court has held as under:
“Mr., Prasad submitted that in absence of a specific pleading to that effect
in the plaint, the two items of properties could not be held to be joint on the
theory of blending. We do not accept this argument as sound in this case.
Having appreciated the entire facts and circumstances of the case we think
that the pleading that the properties were the joint family properties was
sufficient to enable the Court to look into the evidence of blending which
was merely a historical aspect of the question as to how the properties had
become joint family properties. The High Court has rightly held that the
house at Sadisopore had become a joint family property because of
blending in support of which there was ample evidence. We need not.
repeat what has been stated in the judgment of the High Court in this
Page 13 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
regard.”
9.2. In the case of Goli Eswariah -vs- Commissioner of Glft Tax
reported in 1970 AIR 1722 wherein the Hon'ble Supreme Court has held as
under:
“To pronounce on the question of law presented for our decision, we
must first examine what is the true scope of the doctrine of throwing
into the 'common stock' or 'common hotchpot. It must-be remembered
that a Hindu family is not a creature of a contract.As observed by this
Court in Mallesappa Bandeppa Desai and Ors. v. Desai Mallappa
and Ors.(1) that the doctrine of throwing into common stock
inevitably postulates that the owner of a separate property is a
coparcener, who has an interest in the coparcenary property and
desires to blend hi-, separate property with the coparcenary property.
The existence of a coparcenary is absolutely necessary before a
coparcener can throw into the common stock 'his self acquired
properties The separate property of a member of a joint Hindu family
may be impressed with the character of joint family property if it is
voluntarily thrown by him into the common stock with the intention' of
abandoning his separate claim therein. The separate property of a
Hindu ceases to be a separate property and acquires the
characteristic of a joint family or ancestral property not by any
physical mixing with his joint family or 'his ancestral property but by
his, own volition and intention by his waiving and surrendering his
separate rights in it as separate property.”
9.3. In the case of T.V.Angamuthu and another -vs- The State
Government of Tamil Nadu rep. by the District Collector of Salem and
others reported in (2001) 3 MLJ 278 wherein this Court has held as under:
“The very fact that the other members of the family have given the release
deed and later effected the partition among themselves, would clearly
establish that it was treated as joint family property by all the members of
Page 14 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
the family. Now, only for the purpose of the suit it appears that the
plaintiffs have taken a plea that the properties are the separate properties
and as such, the 3rd Defendant had no right and under the circumstance,
Defendants 1 and 2 are not entitled either to attach or bring the same for
sale. The recitals under Ex.A-10 about these properties are joint family
properties would only falsify the case of the plaintiffs. Even though there is
no material to apply the doctrine of blending, it is crystal clear that the
parties have treated the properties as joint family properties. Once a self-
acquired property is thrown into the common hotchpot and becomes joint
family property, it is necessarily followed by all the incident of coparcenary
property. Simply because the family was not possessed of any other
property, it cannot be concluded that these are the separate property of the
particular individual. If that be so, what was the necessity to execute any
release deed or effect partition among the members of the family. Under the
circumstances only, in view of Exs.A-8 and A-9 only, the Courts below
came to the conclusion that the properties are joint family properties.”
9.4. In the case of K.K.Palanisamy Gounder and others -vs-
Amirthammal reported in (2003) 2 CTC 1 wherein a Division Bench of this
Court has held as under:
“6. Though the Defendants have not established that Kandalkal was a
benamidar of the father of Kandasami Gounder, nor they established
that the properties were purchased in the name of Kandalkal from
and out of the funds of joint family properties, we are of the view that
the recitals in the deed of partition should be given due weight and
the fact that the parties have acted according to the deed of partition
from the year 1936 shows that the three brothers have treated the
properties as joint family properties and effected a partition among
themselves. Once we hold that the deed makes no distinction between
the properties of joint family members and the properties of
Kandalkal, the necessary consequence is that all the properties
covered in the deed of partition should be taken to be joint family
properties and the Plaintiff would be entitled to a share only on the
basis that the properties are joint family properties. Further, the
employment of the expression in the deed, namely, @gpJuhu;$pj
tifapy; ghj;jpag;gl;L ehkd; mDgtpj;J tUfpw@ shows that the
properties were obtained from ancestral sources and they also
Page 15 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
enjoyed them as joint family properties. The recitals show the
unequivocal intention of the three brothers of having treated the
properties obtained from their mother as joint family properties.
Learned Single Judge was of the view that there was no independent
evidence let in by the Defendants that the properties in question are
joint family properties. A careful reading of the document shows that
when there are intrinsic evidence in the document itself to show that
the properties in question are joint family properties, the case
pleaded by the Defendants cannot be rejected on the score that they
failed to lead independent evidence on that aspect of the matter.”
9.5. In the case of Commissioner of Income Tax -vs- Sita Bhateja
reported in 1973 91 ITR 193 Kar wherein the Karnataka High Court has
held as under:
“7. A coparcener as a member of the coparcenary has an interest in
the property owned by the coparcenary and he can also have his own
separate property. The following are generally recognised as
coparcenary property :
(i) ancestral property; (ii) property alloted at a partition; (iii)
property jointly acquired by coparcnars; (iv) property acquired with
the aid of coparcenary property; (v) separate property of coparcnars
thrown into family hotchpot and treated as coparcenary property;
and (vi) separate property of a coparcnaer belnede with coparcenary
property.
8. It is unnecessary to deal with all the modes in which coparcenary
property can be acquired for purposes of this case. We are concerned
only with one mode by which the separate property of a coparcenar
can acquire the character of coparcner property. It can happen when
the separate property of a coparcener is voluntary thrown by him the
joint stock or common hotchpot of the family with the intention of
abandoing all separate claims.
9. What are the consequences of a separate property of a coparcener
being impressed with the character of caprcenery property ? After the
property becomes coparcenary property-
Page 16 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
(i) the ownership of the property will vest in the whole body of
caparceners;
(ii) if the coparcener is a manger of the joint family, such property
will continue to be under his managment and he can still alienate it
for purposes of legal necessity or benefit of the family;
(iii) if the coparcener is the father, the interest of his sons in that
property can be sold in order to dicharge his debts which are not
"avyavaharika" in nature;
(iv) the undivided interest of the coparcner in the coparcenary
property including the property in question can be borught to sale by
his creditor :
(v) the property along with other coparcenary property would become
subject to devolution by servivorship; and
(vi) the coparcener can still claim a share in the property along with
other coparcernaer by enforcing a partition.
13. ... In Mallesappa Bandappa Desai v. Desai Mallappa
Alias mallesappa , the Supreme court held that where a member of
the joint Hindu family blended his self-acquired property with
property of joint family, either by bringing his self-acquired proerty
into a joint family account or by bringing joint family property into
his separate account, the effect was that all the property so blended
became joint family property.”
10. Further the learned Counsel appearing for the Respondent
submitted that pending appeal, the father died. Therefore, the Respondent is
entitled to a share in the father's property. Therefore, this appeal lacks merits
and is to be dismissed.
11. As per the evidence of the Plaintiff Selvam, she was married in
Page 17 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
the year 1973. As on the date of filing of the suit, her husband died, her son
and daughters were aged 32 years and above. Both of them were married and
had children.
12. As per the reported ruling of the Hon'ble Supreme Court in the
case of Vineetha Sharma -vs- Rakesh Sharma and others reported in
(2020) 9 Supreme Court Cases 1, irrespective of the date of the birth of the
women co-parcener, when the property had not been partitioned as on 2005,
the date of notification of the Hindu Succession (Amendment) Act 2005, the
women co-parcener is entitled to claim partition. Here, in this case, the
Plaintiff Selvam claim partition. The father and son as Defendants 1 and 2
entered into partition only just before filing of the suit. Therefore, the
partition between the father and son is hit by the ratio laid down by the
Hon'ble Supreme Court in Vineetha Sharma -vs- Rakesh Sharma and
others reported in (2020) 9 Supreme Court Cases 1.
13. Accepting the contention of the learned Counsel for the
Appellant that the property was the self-acquired property of Defendant-1. It
Page 18 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
is the contention of the learned Counsel for the Plaintiff that only when she
demanded partition, the father had executed Partition Deed, whereby the
properties were partitioned between father and the son wherein only
Rs.1,00,000/- was allotted as Schedule A property for the father/Defendant-1
and immovable properties allotted to the son which are item 1 to 11 totalling
Rs.40,00,000/-. Therefore as per the ruling of the Hon'ble Supreme Court in
the case of Vineetha Sharma -vs- Rakesh Sharma and others reported in
(2020) 9 Supreme Court Cases 1, when the partition takes place, subsequent
to 2005, irrespective of the fact whether the co-parcener, father was alive on
the date of partition, the contention of the Appellant before this Court cannot
be accepted in the light of the reported decision.
14. When the document is titled as Partition Deed, it shows that the
father, the Defendant-1 had succeeded to the property in the family partition.
In the family of Maari Gounder, it was treated as his separate property after
the partition. Therefore after his life time, automatically it devolves on his
son and daughter. During the lifetime of the father, the daughter demanded
partition. Instead of granting her share in the property, the father and the son
Page 19 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
had executed Partition Deed whereby Rs.1,00,000/- alone was allotted to the
share of the father immovable property worth Rs.40,00,000/- was allotted to
the son as schedule B property. Therefore the very same partition is hit by
judgment of the Hon'ble Supreme Court. In the light of the above, the
submission of the learned Counsel for the Appellant that the judgment of the
learned Principal District Judge, Namakkal in O.S.No.28 of 2011 dated
26.07.2012 is found bad in law, is perverse cannot be accepted in the light
of the judgment in the case of Vineetha Sharma -vs- Rakesh Sharma and
others reported in (2020) 9 Supreme Court Cases 1 and extracted as follows:
“A. Family and Personal Laws – Hindu Succession Act, 1956 –
S.6 [as substituted by the Hindu Succession (Amendment) Act,
2005 w.e.f. 9-9-2005] – Daughter's right in coparcenary
property under substituted S.6 of the HS Act, 1986 – Daughter
before date of enforcement of the 2005 Amendment Act – Held,
has same rights as daughter born on or after the amendment –
Non-requirement of coparcener father to be alive on date of
coming into force of the said amendment, explained
-Held, if daughter is alive on date of enforcement of
Amendment Act, 2005 i.e. 9-9-2005, she becomes a coparcener
with effect from date of Amendment Act (i.e 9-9-2005)
irrespective of whether she was born before the said amendment
– Provisions in substituted S.6 of the HS Act confer status of
coparcener on daughter born before or after the amendment in
the same manner as son with same rights and liabilities – Rights
under substituted S.6 can be claimed by daughter born prior to
the amendment with effect from date of amendment (9-9-2005)
Page 20 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
with saving of past transactions as provided in proviso to S.6
(1) r/w S.6(5) of the HS Act.”
15. The submission of the learned Counsel for the Respondent in
this Appeal that even though the property was separate property of
Kandasamy Gounder, he had executed partition between him and his son
Kolandaivel. Therefore it gives a presumption that it was treated as joint
family property by the father of the Plaintiff and the Defendant-2.
16. Even if the submission of the learned Counsel for the Defendant
is accepted, after the death of Kandasamy Gounder, the properties in the
share of Kandasamy Gounder is to be partitioned between the son and the
daughter in the light of the fact that immovable properties were allotted to the
son, the Defendant-2 by the Defendant-1, the properties under schedule-B
had to be divided between the daughter and the son, as he had prior to his
death treated his separate property as Joint family property between him and
his son.
Point for determination:
Page 21 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
Whether the judgment and decree dated 26.07.2012
passed in O.S.No.28 of 2011 on the file of the learned
Principal District Judge, Namakkal is to be set aside as
perverse?
17. Heard Ms. Mitraneshaa, B.S., learned Counsel representing
Mr.V.Raghavachari, learned Counsel for Appellants and Mr. P. Mani,
learned Counsel for the Respondent. Perused the evidence of the Plaintiff as
P.W-2 and P.W-2, the documents marked as Ex.A-1 to Ex.A-1 to Ex.A-3 and
the evidence of the Defendants as D.W-1 and D.W-2 and the documents
marked as Ex.B-1 to Ex.B-4 and also the judgment and decree dated
26.07.2012 passed in O.S.No.28 of 2011 by the learned Principal District
Judge, Namakkal.
18. The dispute between the parties is whether the suit properties are
the separate properties of Mari Gounder or joint family properties of Mari
Gounder. According to the Plaintiff the suit properties are joint family
ancestral properties. Therefore, after the amendment of Hindu Succession
Act in the year 2005 she is entitled to a share as a co-parcener. Whereas
Page 22 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
according to the Defendants, the suit properties are separate properties of
Kandasamy Gounder and that therefore, the Plaintiff is not entitled to a share
in the said properties during the lifetime of Kandasamy Gounder.
19. Ex.B-2, Ex.B-3 and Ex.B-4 are the sale deeds evidencing the
purchase of certain properties by one Mari Gounder, grandfather of Plaintiff.
Whether the suit properties form part of the properties mentioned in Ex.B-2,
Ex.B-3 and Ex.B-4 or are the only properties mentioned in Ex.B-2, Ex.B-3
and Ex.B-4. According to the Plaintiff's Counsel, the properties mentioned
in Ex.B-2, Ex.B-3 and Ex.B-4 comes to only 4 acres. Whereas suit properties
measuring an extent of 6 acres. Therefore, it is joint family ancestral
properties. As it was joint family ancestral property, the second Defendant
was included as a co-parcener in the partition deed dated 24.04.1981.
Whereas according to the Defendants after the partition dated 24.04.1981, the
properties mentioned in “B” schedule therein and which fell to the share of
the Defendants became the absolute and separate properties of the
Defendants.
Page 23 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
20. As per the partition deed dated 24.04.1981, the properties
mentioned in “B” schedule and which fell to the share of the Defendants are
the separate properties of the Defendants. Therefore, as per partition deed
dated 24.04.1981, what was allotted as share of Kandasamy Gounder and
Kolandaivel is to be divided between Kandasamy Gounder and Kolandaivel
in two equal shares. Out of this half share of Kandasamy Gounder only is
now divided between the Plaintiff and second Defendant Kolandaivel into
two equal share. Therefore, the Plaintiff is entitled to 1/4th share of the
properties as per partition deed dated 24.04.1981 and the second Defendant
is entitled to 3/4th share of the property as per partition deed dated
24.04.1981. However, the partition deed dated 07.07.2010 is not proper and
does not hold good as the properties therein have not been partitioned
equally. As per the said partition deed, the first Defendant gets only a sum
Rs.1,00,000/- (Rupees One Lakh only). Whereas the second Defendant gets
all the immovable properties worth about Rs.40,00,000/- (Rupees Forty
lakhs). It is found to be in violation of the Hindu Succession Act, amendment
Act – 2005 specifically Section 6 of the Hindu Succession Act as amended in
2005 which gives equal rights to daughters as equal to son in the immovable
Page 24 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
properties of Hindu. Also, it is found violative of the ratio laid down by the
Hon'ble Supreme Court in Vineetha Sharma -vs- Rakesh Sharma and
others reported in (2020) 9 Supreme Court Cases 1 as the partition deed
dated 07.07.2010 is subsequent to this judgment. Therefore, the said
partition deed does not hold good and is struck down as null and void and not
binding on the Plaintiff. Pending appeal, the first Defendant, father of
Plaintiff and second Defendant died. Therefore, the Plaintiff inherits her
share from the share of her father. Accordingly, the daughter/Plaintiff gets
1/4th share in the suit property and son/second Defendant gets 3/4th share in
the property.
21. In the light of the above discussion, the point for determination
is answered against the Appellants. The judgment and decree dated
26.07.2012 passed in O.S.No.28 of 2011 on the file of the learned Principal
District Judge, Namakkal, granting 1/3rd share to the daughter/Plaintiff and
2/3rd to the son/second Defendant is modified as the daughter/Plaintiff is
entitled to 1/4th share and the son/second Defendant is entitled to 3/4th share.
Page 25 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
In the result, this Appeal Suit is dismissed. The judgment and decree
dated 26.07.2012 passed in O.S.No.28 of 2011 on the file of the learned
Principal District Judge, Namakkal, granting 1/3rd share to the
daughter/Plaintiff and 2/3rd to the son/second Defendant is modified as the
daughter/Plaintiff is entitled to 1/4th share and the son/second Defendant is
entitled to 3/4th share. No costs.
02.06.2025
Internet : Yes / No.
Index : Yes / No
Speaking Order/Non-speaking Order
srm/shl
Page 26 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
To
1.The Principal District Judge,
Namakkal .
2.The Section Officer,
Vernacular Records Section,
Madras High Court.
Page 27 of 28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )
SATHI KUMAR SUKUMARA KURUP, J.
srm/shl Judgment made in A.S.No.1025 of 2012 02.06.2025 Page 28 of 28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 08:37:01 pm )