J U D G E M E N T

The 3^rd defendant in O.S.No.118 of 2005, on the file of the learned Principal Subordinate Judge, Karur, is the appellant in this second appeal.

The following genealogy will help to understand the facts better.

Pasuvayee Gounder (Died)

Soliyammal (W1) (died) Nallammal (w2) (Died)

Soliyammal (P) Ramasamy Kulandayee Muthusamy Ammal (D1) (D2) (D3)

Admittedly, Soliyammal predeceased her husband. Only after the death of first wife Soliyammal, Pasuvayee Gounder married Nallammal.

2. The plaintiff Soliyammal is the daughter born to the Pasuvayee Gounder through his first wife, who was also known as Soliyammal. After the demise of Soliyammal, Pasuvayee Gounder married one Nallammal and through her the defendants (two sons and one daughter) were born. The suit properties are the self acquired properties of Pasuvayee Gounder. That is not in dispute. Pasuvayee Gounder appears to have died in the year 1985. Claiming her ¼ share in the suit property, the present suit was laid. The sons born through Nallammal are arrayed as D1 and D3. The daughter born through Nallammal was shown as the second defendant.

3. The sons of Nallammal filed their written statement contending that the plaintiff's rights have been extinguished on account of ouster. Based on the rival pleadings, the trial Court framed the necessary issues. By judgment and decree dated 12.10.2012, the trial Court granted preliminary decree in favour of the plaintiff granting her ¼th share in the suit properties. Aggrieved by the same, the third defendant/appellant herein filed A.S.No.8 of 2013 before the learned Principal District Judge, Karur. By the impugned judgment dated 29.04.2014, the appeal was dismissed. Challenging the same, this second appeal came to be filed.

4. The second appeal was admitted on the following substantial question of law:

“Whether the Courts below misapplied the law relating to succession to the properties of the mother of the plaintiff by holding that the entire property should go to the plaintiff, when the deceased was survived not only by the plaintiff but also by the husband of the deceased?”

5. During the pendency of this second appeal, the plaintiff Soliyammal passed away and her legal heirs have been brought on record as respondents 4 to 7.

6. The learned counsel appearing for the appellant primarily contended that the suit was clearly bad for partial partition. According to him, it is well settled that a suit for partial partition without including all the joint family properties was clearly not maintainable. He placed reliance on the decision of the Hon'ble Supreme Court reported in 1994-4-SCC-294 (kenchegowda represented by legal representatives Vs.Siddegowda) and the decision of the Madras High Court reported in 2006-1-CTC-267 (Gandhi Vs. Saminatha Gounder and another). He drew my attention to the testimony of P.W.1. The plaintiff in her cross examination admitted that some of the properties belonging to her mother, have not been included in the suit schedule. She also admitted that in respect of those properties, she has not entered into any partition with her brothers. The learned counsel for the appellant would therefore contend that on the own showing of the plaintiff, this Court must hold that the suit was bad for partial partition. He also submitted that the Courts below completely misconstrued Section 15(1) of the Hindu Succession Act 1956. It may be true that the plaintiff's mother Soliyammal had inherited certain properties from her father. But, when she passed away, those properties must devolve in equal shares on the plaintiff and Pasuvayee Gounder. Only if the plaintiff's mother had died without any issues, the properties inherited from her father would go back to the legal heirs of the father and would not devolve on the husband. But where a woman had left behind her son or a daughter, then Section15 (2) (b) will not apply. This aspect of the matter was completely lost sight of by the Courts below. On this ground, the learned c