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4. Sivasubramaniam got married to one Primala Devi. Through her, he had a son (Saravanan) and a daughter (Dhanuja Murali). His first wife Parimala Devi died on 11.11.1977. After her demise, M.Sivasubramaniam married one S.Gnanasoundari and through her, he had a son (Manikandan) and two daughters (Kavitha Senthil and Vidya Venkataragavan). Before the commencement of dispute, certain properties devolved on M.Sivasubramaiam under the partition deed Ex.A-1 and Ex.A-2 were sold. Also properties were acquired in the name of Sivasubramaniam, who retired as Professor from Kandasamy Kandar’s College Salem and in the name of his elder son Saravanan, who is running cable business http://www.judis.nic.in and Pawn broker business.

First Round Litigation

5. In the year 2012, Kavitha Senthil and Vidhya Venkataragavan, in the year 2012, the two daughter of Sivasubramanian born through his second wife filed suit for partition claiming 1/3rd share against their father Sivasubramanian, full blood brother Manikandan, half blood brother Saravanan and half blood sister Dhanuja Murali Babu. In the suit (O.S.No.23 of 2012) on the file of Principal District Judge, Krishnagiri. (in short called as previous suit) they contended that, the properties mentioned in “A” & “B” schedule and few other properties were ancestral joint family properties of Sivasubramanian. In the partition dated 26.03.1975 M.Sivasubramaniam got the 'A' schedule property and a tiled shop in S.No.96/1 of Orappam Village, Krishnagiri District. Sivasubramanian sold the tiled shop to one Suburnisha vide sale deed dated 08.06.1987 to met out the marriage expense of his sister Sivagami. The properties shown as item Nos.1 & 2 in the “B” schedule property was sold away in the year 2001. After receiving the full payment, sale deed was executed on 28.07.2004. The sale proceeds were used to purchase the “C” schedule property in the name of Saravanan. Few more properties given under the partition deed dated 26.03.1975 to Sivasubramanian were sold away as house sites and the remaining properties were shown under “A” http://www.judis.nic.in schedule property. Under the partition deed Ex.A.20, the properties which were allotted K.N.T.Manickam Chettiar were later devolved upon the sons and daughters of K.N.T.Manickam Chettiar. On his death, on 10.01.1983 and on demise of his wife Saraswathi in or about in the year 2005 those properties were divided among the brothers and sisters of Sivasubramanian and properties which are allotted to him were shown as “B” schedule property. From the sale proceeds of Orappam Village, the “C” schedule property was purchased in the name of S.Saravanan and the remaining sale consideration was used as capital to start the Pawn broker business and cable T.V. business. The business was looked after by the Saravanan on behalf of the joint family. The house constructed in the “C” schedule property from out of the income derived from the business and the loan availed from Syndicate bank. Though, the property described in “C” schedule stands in the name of Saravanan, it actually belongs to joint family and hence, accessible for partition along with the other properties mentioned under A & B schedule.

20. The core facts of the case is narrated at the commencement of the judgment. This is subsequent partition suit between the family members of Sivasubramanian, who is the son of K.N.T.Manickam Chettiar. The three category of properties are shown in the plaint which stands in the name of Sivasubramanian and one property not included stands in the name of Saravanan, who is the plaintiff herein. The First Category property is the property which devolved upon Sivasubramaniam, when his father and other divided the ancestral and joint family property in the year 1975. This property is shown under schedule “A”. Second Category Property is the property which devolved upon Sivasubramanian under the partition deed (Ex.A.1) between him and his siblings. Third category property is the property purchased in the name of Sivasubramanian in the year 2004 upon which, he has constructed a house and the property purchased in the name of http://www.judis.nic.in Saravanan and construction put upon it. As far as the Third category of property is concerned, the property in the name of Sivasubramanian alone is the subject matter of the present suit. The plaintiff has excluded the property which stands in his own name. He wants to retain it as his self acquired individual property and had contended that, it does not form part of the joint family property. Whereas, in the earlier suit filed by the daughters of Sivasubramaniam, they have contended that, “C” schedule property in this suit is the self acquired property of their father Sivasubramaiam and the property in the name of Saravanan is the joint family property purchased in the name of 1st defendant/Saravanan.

40. In this context, it is also appropriate to refer the judgment of the Hon'ble Supreme Court rendered in M.Arumugam vs. Ammaniammal and others reported in 2020 (5) CTC 680, in which the Hon'ble Supreme Court explained how http://www.judis.nic.in property of an Hindu Male Mitakshara Property will devolve.

“10. When we read Section 6 of the Succession Act the opening portion indicates that on the death of a male Hindu, his interest in the coparcenary property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. That would mean that only the brothers would get the property. However, the proviso makes it clear that if the deceased leaves behind a female heir specified in Class I of the Schedule, the interest of the deceased in the coparcenary property shall devolve either by testamentary or by intestate succession under the Succession Act and not by survivorship. The opening portion of Section 6, as it stood at the relevant time, clearly indicates that if male descendants were the only survivors then they would automatically have the rights or interest in the coparcenary property. Females had no right in the coparcenary property at that time. It was to protect the rights of the women that the proviso clearly stated that if there is a Class I female heir, the interest of the deceased would devolve as per the provisions of the Act and not by survivorship. The first Explanation to Section 6 makes it absolutely clear that the interest of the Hindu coparcener shall be deemed to be his share in the property which would have been allotted to him http://www.judis.nic.in if partition had taken place immediately before his death.”