Back
2019 Supreme(Mad) 3209
IN THE HIGH COURT OF MADRAS
T. RAVINDRAN, J.
Devayammal – Appellant
Versus
Poosappan and Others – Respondents
A.S. No. 804 of 2008
Decided On : 28-11-2019
Advocate Appeared:
For the Appellant : V.P. Sengottuvel.
For the Respondent: N. Manokaran.
Headnote:
Hindu Succession Amendment Act - Section 6(1) - Indian Evidence Act - Section 35 - Suit for partition and permanent injunction - Possession and enjoyment of suit properties - Defeat right and title - Case of plaintiff in brief is that first defendant is brother of plaintiff and both are children of deceased - Suit properties are ancestral properties - He is wife and they had two sons first defendant and one and a daughter namely plaintiff died leaving behind his mother as his only legal heir - Since suit properties are ancestral properties share to which is entitled to with reference to same devolved upon his mother and first defendant were each entitled to share in suit properties - Died intestate and on her demise and plaintiff and first defendant are each entitled to share in suit properties - On death became entitled to share first defendant became entitled to share and plaintiff became entitled to share in suit properties - Died intestate leaving behind plaintiff and first defendant as his heirs and accordingly on his demise plaintiff is totally entitled to share in suit properties and first defendant is entitled to remaining share - After advent of Hindu Succession Amendment Act which came into force plaintiff first defendant and deceased are each entitled to share in suit properties and accordingly on demise and after demise mother and after demise as above pointed out according to plaintiff she, in toot is entitled to share in suit properties – Held, Full Bench judgment of Patna High Court was followed by this Court in Lignite Corporation Ltd. vs. Special Lignite Project - Same view was reiterated by Hobble Mr. Justice in Special Reservoir Scheme and Others - Hobble Mr. Justice as a Judge of Patna High Court had also taken a same view in Oriental Fire and General Insurance Company - Considering above said position of law and also considering facts and circumstances of case at hand and applicability of Hindu Succession Amendment Act to same particularly in light of will projected by defendants and Amendment Act having come into force only from in all Court deem it fit and appropriate to follow decision reported and accordingly hold that plaintiff is not entitled to claim any share in suit properties by invoking Hindu Succession Amendment Act 39 of 2005 - In light of above said discussions Court hold that plaintiff is not entitled to obtain partition and separate possession of share in suit properties as put forth in amended plaint - Court further hold that they will is true valid and binding upon plaintiff - Court hold that plaintiffs suit is not bad for non-joiner of necessary parties and Court further hold that plaintiff is not entitled to obtain relief of permanent injunction as prayed for – Accordingly point numbers are answered - Appeal dismissed
JUDGMENT :
T. RAVINDRAN, J.
1. Aggrieved over the judgment and decree dated 24.03.2008 passed in O.S. No. 34 of 2006 on the file of the Additional District Judge, Fast Track Court No. 1, Erode, the plaintiff has preferred the first appeal.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.
3. Suit for partition and permanent injunction.
4. The case of the plaintiff, in brief, is that the first defendant is the brother of the plaintiff and both are the children of the deceased Athappa Gounder. The suit properties are the ancestral properties of Athappa Gounder. Sellammal is the wife of Athappa Gounder and they had two sons, namely, Poosappan, the first defendant and one Palanisamy and a daughter, namely, the plaintiff. Palanisamy died at the age of 13 years leaving behind his mother Sellammal as his only legal heir. Since the suit properties are the ancestral properties, the 1/3 share to which Palanisamy is entitled to with reference to same devolved upon his mother Sellammal, and Athappa Gounder and the first defendant were each entitled to 1/3 share in the suit properties. Sellammal died on 16.09.1999 intestate and on her demise Athappa Gounder and the plaintiff and the first defendant are each entitled to 1/3 share of Sellammal in the suit properties. On the death of Sellammal, Athappa Gounder became entitled to 4/9 share, the first defendant became entitled to 4/9 share and the plaintiff became entitled to 1/9 share in the suit properties. Athappa Gounder died on 17.12.2001 intestate leaving behind the plaintiff and the first defendant as his heirs and accordingly on his demise, the plaintiff is totally entitled to 3/9 share in the suit properties and the first defendant is entitled to the remaining 6/9 share. After the advent of the Hindu Succession Amendment Act, which came into force on 09.09.2005, the plaintiff, the first defendant, Athappa Gounder and the deceased Palanisamy are each entitled to 1/4 share in the suit properties and accordingly on the demise of Palanisamy and after the demise of Sellammal, the mother and after the demise of Athappa Gounder, as above pointed out, according to the plaintiff, she, in toto, is entitled to 1/2 share in the suit properties. The plaintiff and the first defendant are in the joint possession and enjoyment of the suit properties and no partition has been effected amongst them. The plaintiff demanded allotment of her lawful share, however, the first defendant did not come forward to effect the partition and hence the plaintiff issued a pre suit notice on 24.08.2003 calling upon the first defendant to partition and allot her share in the suit properties. The first defendant is attempting to alienate or encumber the suit properties. Further according to the plaintiff, during the pendency of the suit, the first defendant created some records in respect of the suit properties in collusion with the other defendants dated 15.04.1999, 15.04.1999, 15.04.1999, 17.09.2003 and 17.09.2003 to defeat the right and title of the plaintiff. The plaintiff is not the party to the abovesaid sale transactions and the abovesaid sale transactions would not bind the plaintiff and the abovesaid sale deeds are invalid and no right would pass under the same. The defendants 2 to 8 are added as necessary parties to the suit and hence, according to the plaintiff, she has been necessitated to lay the suit for appropriate reliefs.
5. The second defendant is the son of the first defendant and both the defendants 1 and 2 have mainly resisted the plaintiff's suit contending that the suit properties are the ancestral properties of Athappa Gounder and according to them, Athappa Gounder had only one son, namely, the first defendant and one daughter, the plaintiff and put forth the case that he had no son by name Palanisamy as alleged in the plaint and also disputed the plaintiff's case that Palanisamy died at the age of 13 years leaving behind his mother Sellammal as his le
