THE HIGH COURT OF JUD ICATURE AT MADRAS DATED: 07.11.2023 CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN AND THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR A.S.No . 596 of 2019 and C.M.P.No.18161 of 2019 1.Agnes @ Karpaga Devi

2.Minor Amala Jenifer ...Appellants (2nd Appellant is represented by her mother and

1st appellant, Agnes @ Karpaga Devi)

Vs.

Pauline @ Pauline Iruthaya Mary ...Respondent Prayer: First Appeal filed under Section 96 of C.P.C., 1908, against the judgment and decree dated 05.07.2019 made in O.S.No.20 of 2013 on the file of the District Judge, Nagapattinam.

For Appellants : Mr.C.Munusamy For Respondent : Sole respondent - Served - No appearance Ms.B.S.Mitra Neshaa - Amicus

J U D G M E N T

(Judgment of the Court was made by R.SUBRAMANIAN, J.)

This appeal is at the instance of the defendants in O.S.No.20 of

2013. The suit in O.S.No.20 of 2013 was launched by the respondent herein, seeking 1/3rd share in the suit properties. The plaintiff would claim that the suit properties belonged to her son, Moses, who died intestate on

08.11.2012.

2. While admitting the title of Moses, the defendants resisted the suit, contending that the plaintiff is not entitled to share in the properties.

3.Upon consideration of the pleadings, the Trial Court framed the following issues in the suit:-

i) Whether the suit is properly valid.

ii) Whether the proper Court fee has been paid. iii) Whether the plaintiff is entitled to partition.

iv) To what other relief the plaintiff is entitled to.

An additional issue was framed relating to legitimacy of the 2nd defendant, which reads as follows:-

v) Whether the 2nd defendant, being a illegitimate child is entitled to share in the suit properties as heir of Moses.

4.The Trial Court, on the evidence available on record, concluded that the plaintiff would be entitled to a share. The Trial Court also took into consideration the admission by the 1st defendant that she got married the said Moses on 13.08.2003 before a Notary Public, subsequently, another marriage was solemnized in the Church on 26.01.2004, after she had converted to Christianity and she was five months into pregnancy on the date of the marriage, held that the 2nd defendant is not a legitimate child as she was conceived even before a valid marriage between the deceased, Moses and the 1st defendant. On the said finding, the learned Trial Judge concluded that the plaintiff, being the mother of Moses and the 1st defendant, being a widow would be entitled to equal share in the properties. A preliminary decree followed suit. Aggrieved, the defendants have come up with this appeal.

5.Mr.C.Munusamy, learned counsel for the appearing appellants contended that the Trial Court has over looked the fact that the parties were Christians governed by the Indian Succession Act and in view of Sections 33 and 33-A of the Indian Succession Act, mother of an intestate will not be entitled to any share in the property, when he leaves behind a widow or a lineal descendant.

6.Contending that the 1st defendant being a widow and the 2nd defendant being a lineal descendant, they alone would be entitled to a share and therefore, the Trial Court was not right in granting decree for partition at the instance of the mother, who will be a heir only if the situation contemplated under Section 43 to 46 of the Indian Succession Act arises.

7.Since the respondent mother was not represented by a counsel and considering the importance of the question of law, we had requested Ms.B.S.Mitra Neshaa, learned counsel to assist us and appointed her as Amicus Curiae. The learned Amicus has placed a brief note before us detailing the position of law under the Indian Succession Act. Sections 33 and 33-A deal with succession to the estate where the intestate has left a widow and a lineal descendant or a widow and kindred or the widow only.

8.As per the rules under Section 33 & 33-A where the Christian dies intestate leaving behind a widow and lineal descendants 1/3rd of the property would go to the widow an