Separation of widow of co-parcener from co-parcenary

Both these second appeals arise out of the same suit O.S.No.281 of 1980 and the appeal therefrom in A.S.No.164 of 1981, on the file of the Court of the District Munsif, of Melur and Subordinate Judge of Madurai, respectively.

2. The plaintiff is the appellant in S.A.No.969 of 1982, and the sole respondent therein is the first defendant. Defendants 2 to 4 are the appellants in S.A.No.1459 of 1982 and the first respondent therein is the plaintiff and the second respondent therein is the first defendant.

3. The plaintiff is the son through the first wife of one Nadukattan. The first defendant is the second wife of the said Nadukkattan, and the defendants 2 to 4 are the sons of Nadukkattan through the first defendant.

4. The first defendant died pending the second appeals and defendants 2 to 4 got themselves recorded as her legal representatives in S.ANo.1459 of 1982. In S.A.No.969 of 1982, pursuant to the civil miscellaneous petitions filed by the appellant, defendants 2 to 4 were brought on record as the legal representatives of the first defendant/ respondent.

5. The suit is for declaration of the exclusive title of the plaintiff to the suit five items of properties, and for consequential injunction. However, in so far as the 5th item is concerned, it is represented by both counsel that there is no controversy about it in the second appeals. Hence, the second appeals are concerned only with items 1 to 4 of the suit properties, about which alone I make reference here.

6. The trial court granted decree for declaration to the extent of 6/10 shares of the plaintiff in items 1 to 4 of the suit properties and for permanent injunction against all the defendants, restraining them from interfering with the plaintiffs possession of the entirety of the said items 1 to 4. 7..However, the lower appellate court modified the decree given by the trial court, granting declaration in respect of 3/4 shares in items 1 to 4 of the suit properties. It also granted injunction against D-2 to D-4 alone, with reference to the entirety of Items 1 to 4 of the suit properties. It refused injunction against the first defendant on the ground that she is a co-owner, in respect of items 1 to 4 of the suit properties.

8. Admittedly, the suit property originally belonged to the joint family of the said Nadukkattan. It is also not in dispute that he died after the Hindu Succession Act came into force, and that even before his death, there was a partition in the above said family as borne out by Ex. A-1 partition deed of the year 1959, by which the suit property was allotted to the said Nadukkattan and the plaintiff, and some other properties were allotted to Defendants 1 to 4.

9. According to the plaintiff, after the above said partition, plaintiff and Nadukkattan held the suit properties as family property between them, and since Nadukkattan died, by survivorship the plaintiff got the entire suit properties to himself in which the defendants have no share.

10. But the defendants’ case is that subsequent to Ex.A-1 partition deed, the coparcenary was not continued even between the plaintiff and Nadukkattan and they continued only as tenants in common and, therefore, there is no scope for survivorship and, when the said Nadukkattan died, defendants are entitled to their respective shares in the share that belonged to Nadukkattan.

11. The trial court accepted this case of the defendant and hence granted, as stated above, the declaration to the extent of 6/10 shares in the suit properties i.e., 1/2 share which originally belonged to plaintiff under the partition and l/5th of the other half share which belonged to Nadukkattan, as per Ex.A-1 partition deed. It granted the other 4/10 shares to the defendants, on the footing that they are the other heirs of Nadukkattan.

12 However, the lower appellate court held that after Ex.A-1 partition deed, the suit properties were held by plaintiff and Nadukkattan only as co-parceners between themselves, but tha