2026 Supreme(Mad) 1379

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.B. BALAJI, J.
K.S. Krishnasamy, (Died) – Appellant
Versus
Lakshmi – Respondent 
A.S.No.770 of 2023 and C.M.P.Nos.26961 of 2023 & 2947 of 2026
Decided On : 10-04-2026

Hindu Succession (Amendment) Act 2005 does not confer coparcenary rights on daughters for pre-1956 paternal deaths; succession follows customary law (son and widow shares). Validly proved Will excludes intestate heirs from widow's share.

Headnote:(A) Hindu Succession Act, 1956 - Section 6 (as amended by Act 39 of 2005) - Coparcenary rights of daughters - Not applicable retrospectively to cases where succession opened prior to commencement of 1956 Act - Daughter not entitled to share by birth in ancestral property if father died before 1956; devolution as per customary law to son (half share) and widow (half share) - 2005 amendment confers rights only prospectively for post-1956 successions - Hindu Women's Rights to Property Act, 1937 (extended retrospectively from 26.11.1946 by Act 26 of 1947) - Plea unavailable without pleadings in trial court - Indian Succession Act, 1925 - Section 63(c) r/w Evidence Act, 1872 - Section 68 - Will duly proved by attesting witness deposing to execution, reading of contents, sound disposing state presumed if unchallenged in cross; minor drafting errors (e.g., 'signed' vs. thumb impression) and affixing photos/notary seal not suspicious circumstances - Registration Act, 1908 - Section 17 - Consent letter (Varthamanai) disclaiming rights not requiring stamp/registration as it neither creates nor extinguishes interest in immovable property - Additional evidence of original consent letter rightly rejected in appeal as execution disputed and not proved in trial. (Paras 16, 19, 17.1 to 17.7, 15.4 to 15.6)

(B) Pleadings - New plea (retrospective effect of 1947 Act denying widow share) impermissible if additional written statement rejected by trial court and upheld in revision - Parties may take inconsistent pleas (widow had no share but claim under her Will); estoppel operates only against challengers, not propounders - Appellate interference limited; trial court erred in applying post-1956 coparcenary to pre-Act death and disbelieving proved Will. (Paras 12.1, 16.4, 20)

Facts of the case:
Suit for partition of ancestral property by daughter from first wife against brother's daughters claiming under brother's settlement and stepmother's Will. Father died pre-1956 (1945/46); no issue from second wife (stepmother) who died 2012. Stepmother and brother jointly sold portion in 1991; plaintiff allegedly consented via Varthamanai. Trial court decreed preliminary partition granting plaintiff half share relying on 2005 amendment coparcenary, disbelieving Will. Defendants appealed.

Findings of Court:
Plaintiff entitled to no share; stepmother's half share validly bequeathed by proved Will to defendants excluding plaintiff; father's half devolved to son alone pre-1956; consent letter lacks evidentiary value due to disputed execution.

Issues: (1) Applicability of 2005 amendment coparcenary to pre-1956 death; (2) Stepmother's share entitlement and Will validity; (3) Admissibility of additional evidence (original consent letter).

Ratio Decidendi: Succession pre-1956 governed by customary law, not HSA; daughters lack birth rights therein. Will execution proved by compliant attestation evidence, absent suspicious circumstances; unchallenged mental capacity presumed. Pleadings bind; inconsistent defenses permissible.

Result: Appeal allowed; trial court decree set aside.

Table of Content
1. inheritance claims from subbiah gounder's death pre-1956. (Para 1 , 2 , 3 , 4 , 5)
2. trial issues, evidence, and court decree. (Para 6 , 7 , 8)
3. appellants challenge vineeta sharma applicability. (Para 9 , 10 , 11)
4. respondent defends thangammal's share and will invalidity. (Para 12)
5. rejects varthamana letter as additional evidence. (Para 13 , 14 , 15)
6. hsa 1956 inapplicable to pre-1956 succession. (Para 16)
7. thangammal's will duly proved and valid. (Para 17)
8. precedents affirm pre-1956 male coparcenary. (Para 18 , 19 , 20 , 21 , 24 , 25 , 27)
9. pleadings limit agricultural land act argument. (Para 22 , 23 , 26 , 28 , 29)
10. appeal allowed; plaintiff gets no share. (Para 30)

JUDGMENT :

P.B. BALAJI, J.

1.The defendants in O.S.No.543 of 2012, on the file of the First Additional District Judge, Coimbatore are the appellants herein.

Pleadings:

2.Plaint in brief:

2.1.Plaintiff and the first defendant are daughter and son of late Subbiah Gounder, through his first wife. After the death of the first wife, their father married one Thangammal, through whom no children were born. Suit property originally belonged to Pongia Gounder and his sons, and in and by partition deed dated 11.09.1929, the suit property was allotted to the share of the father of the plaintiff Subbiah Gounder. Under a sale deed dated 23.06.1937, Subbiah Gounder got 1/3 share and in an oral partition, he derived 4.88 acres. Subbiah Gounder died in November 1946. His second wife Thangammal became entitled to rd half share in the entire property. Plaintiff is entitled to 1/3^rd share. Thangammal, the second wife died on 12.02.2012 and her share also became her absolute property after the commencement of the Hindu Succession Act. As Thangammal died without any issues, the plaintiff and the first defendant succeeded to her share. Thus, the plaintiff as a heir of her father and as a heir of her step-mother becomes entitled to an equal one half share, the other half share belonging to brother of the plaintiff viz., the first defendant.

2.2.The first defendant and the second wife of Subbiah Gounder jointly sold one Acre to a third party and the plaintiff is not a signatory to the said sale deed. The Plaintiff demanded partition. However, the plaintiff's demand was evaded by the defendants. The defendants 2 to 4 are daughters of the first defendant and they claim under the settlement deed dated 27.07.2011, based on an alleged Will executed by Thangammal dated 25.07.2011. Will of Thangammal is not true and genuine. The first defendant, brother of the plaintiff died intestate on 03.07.2013 and his wife is the fifth defendant and daughters are defendants 2 to 4. They only inherited half share of the first defendant. Hence, the suit for partition and permanent injunction was filed to restrain the defendants from a; alienating or encumbering the suit property.

3.Written statement filed by the first defendant and later adopted by the defendants 2 to 4 in brief:

3.1.The plaintiff is no doubt is the daughter of Subbiah Gounder, through first wife, born in the year 1937. The first wife died in the year 1939. Thereafter, Subbiah Gounder married Thangammal. The property measuring 2.59 acres in S.F.No.72/2 of Kannampalayam Village was allotted to the share of the Subbiah Gounder, in a partition dated 11.02.1929. Subbiah Gounder was carrying on agricultural operations in the property. He also purchased properties through registered sale deed dated 23.06.1937, besides also becoming entitled to other properties in a family arrangement dated 30.10.1937. The properties were all enjoyed by Subbiah Gounder as his ancestral properties.

3.2.The first defendant, being his only son, became entitled to one half share. Subbiah Gounder, died in the year 1945 and not 1946, as alleged by the plaintiff. Properties devolved only on the first defendant and mother of the first defendant namely Thangammal, second wife of Subbiah Gounder. The right of enjoyment of said Thangammal is also restr

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