A grandson born after his grandfather's death is entitled to claim a share in joint family properties, recognizing coparcenary rights established under Hindu Succession Act amendments.

JUDGMENT :

P.B.Balaji, J.

The plaintiff in a suit for partition is the appellant in both the Appeals.

2. The parties are described as per their litigative status before the trial Court.

3. Both the Second Appeals arise out of judgment and decree in O.S.No.180 of 2010 on the file of the Sub Court, Perundurai. The said suit was decreed in favour of the appellant herein. However, two appeals, viz., one Appeal in A.S. No.36 of 2005, by defendants 1, 3, 4, 6 and 7 and another in A.S. No. 37 of 2015, by defendants 8 to 10, came to be filed challenging the judgment and decree of the Trial Court. Both the Appeals were allowed by the First Appellate Court as against which the above Second Appeals have been preferred.

4. On 06.06.2017, the above Second Appeals were admitted on the following five substantial questions of law:-

“ (1) Whether the First Appellate Court is right in holding that the plaintiff is not entitled to get right by birth when there exists a coparcenary and the joint family properties as on the date of his birth?

(2) Whether the First Appellate Court is right in holding that the plaintiff did not question the property sold under Ex.B6 to Ex.B8 dated 27.08.1981 particularly when the sale deeds executed by the 1^st defendant to the extent of the entire coparcenary property are illegal, null and void?

(3) Whether the Will dated 11.03.1969 (Ex.B5) has been proved by the defendant, if so, what the effect of the said Will on the suit properties in the event of holding it to be the Joint family properties?

(4) Whether the prevaricative conclusion of the First Appellate Court in dismissing the suit is vitiated in view of the categorical findings given in Para Nos. 62 and 63 of the judgment, by and which, the plaintiff was granted 1/4^th share?

(5) Whether the judgment of the First Appellate Court that a grandson/plaintiff is disqualified to sue for partition in view of the death of his grandfather, before he was born in view of the assumed notional partition is a correct one, after the Amendment Act, 39 of2005”

5. I have heard Mr.N.Manokaran, learned counsel for the appellant in both the Second Appeals and Mr.A.Sundaravadanan, learned counsel for the respondents 1 to 5 in S.A. No.330 of 2017 and 4 to 9 in S.A. No.331 of 2017, Mr.T.Murugamanicam, learned Senior Counsel for Mr.C.S.Saravanan for the respondents 7 to 9 in S.A. No.330 of 2017 and respondents 1 to 3 in S.A. No.331 of 2017 and Mr.K.M.Anand, learned counsel for the 6 respondent in S.A. No.331 of 2017.

6. The learned counsel for the appellant would submit that the suit properties consisted of totally 17 items, insofar as the contesting respondents in S.A.No.331 of 2017 are concerned, it relates to item 14 alone. The learned counsel for the appellant would submit that item No.14, though purchased in the name of the first defendant would also be only joint family property. He would bring to my notice in Ex.B4, under which, the said item was purchased when the first defendant was eight months old. The Trial Court held that income from properties covered by Ex.B4 and Ex.B5 was sufficient for purchase of item No.14 property in Ex.B9. The learned counsel would state that admittedly, D.W.1 has stated that he had no income and he has also not produced any documents to establish that the 14 item of property was purchased in his name from and out of his separate income.

7. The learned counsel for the appellant would further contend that when the family admittedly had joint family properties, presumption would only be that the said item