Only male descendants can be considered co-parcenors under Mithakshara Law, which determines property entitlement and division.

JUDGMENT

These appeals arise from cross suits. R.S.A No.955 of 2009 arises from O.S No.4 of 2000 which is a suit filed by the appellant as plaintiff for partition. R.S.A No.951 of 2009 arises from O.S No.269 of 2000 which is a suit filed by the respondent as plaintiff for declaration of title over the property. The trial Court decreed the suit for partition and dismissed the suit for declaration of title. The decrees were reversed in appeal. It is challenging the same that these Regular Second Appeals have been filed.

2. Admittedly the plaint schedule property belonged to one Pazhaniyandi. His wife was Ponni. Pazhaniyandi had a brother named Ponnan. Pazhaniyandi and Ponni had a son named Chami. Valli is the wife of Chami. Two children namely, Pazhaniyandi and Paru were born to Chami and Valli. Paru was married to Appu. The plaintiff and her brother Gangadharan were born in their wedlock. Lakshmi the defendant, is the widow of Gangadharan. Except the plaintiff and the defendant others are no more. Valli-the wife of Chami was the last person to die. She died after 1956. As legal heir of Paru (the daughter of Valli), the plaintiff claims to be a co-owner along with Gangadharan, and thus seeks for partition.

3. The trial court found that the parties are governed by Mithakshara Law and that, on the death of the last male member of the co-parcenary the property goes to the mother – Valli, and on her death, to her children. Pazhaniyandi and Paru being no more, the property vests with the children of Paru namely, the plaintiff and Gangadharan. Gangadharan being no more, his wife who is his only legal heir, takes his share. Thus it was held that the plaint schedule property is liable to be partitioned between the plaintiff and the defendant. The first appellate court held that Gangadharan was the sole surviving co-parcenor in the family, and hence the property vested absolutely with him.

4. Heard the learned counsel on either side on the following substantial question of law:

“Was the first appellate court right in holding that Gangadharan-the husband of the defendant, is a coparcenor in the family of Pazhaniyandi?”

5. Whether Gangadharan, the husband of the defendant was a member of the co-parcenary of Pazhaniyandi, is the sole question for determination. If it is found that he is a member of the co-parcenary, then the property would vest exclusively in him, and on his death, on his sole legal heir, the defendant. If he is not a coparcenor, then, both the plaintiff and defendant would have equal rights over the property.

6. For an easy understanding of the relationship between the parties, a genealogical tree is given hereunder:

Genealogy Pazhaniyandi – Ponni(Wife) Ponnan(Brother)

Chami Valli (Died after 1956)

(Predeceased Ponni)

Pazhaniyandi(Minor) Paru Appu(Husband)

(Predeceased Valli)

Gangadharan(died on 09.07.1996) Yasodha (Plaintiff)

Lakshmi(Widow) Defendant

7. On a mere perusal of the genealogy as above, it is evident that, Gangadharan was born to a daughter of Chami and therefore, would not be a co-parcenor. It is only the sons and their grandsons who form members of the co- parcenory. Gangadharan having been born in the female line does not become a member of the co-parcenary of Pazhaniyandi. The finding entered into by the first appellate court that Gangadharan is a co-parcenor is thus, not correct. Substantial question of law is answered accordingly.

8. Having been found that Gangadharan is not a coparcenor, as held by the trial court, both the plaintiff and defendant have equal rights over the property.

9. The learned counsel appearing for the respondent urged a contention that, though a specific plea of adverse possession and ouster was urged in the written statement, it was not considered by the Courts. While it is true that a plea of ouster was raised, it is seen that no issue in the said regard was framed in the trial court. Admittedly the defendant seeks for raising such an issue. A perusal of the judgment of the trial court shows that