BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25.03.2025 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN and THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN A.S.(MD)No.96 of 2021

1.A.Pushpa

2.A.Sakunthala ... Appellants Vs.

1.A.Ramachandran

2.A.Murugiah,(Died)

A.Sankareswari (Died)

3.S.Karunakaran R.Sankaran (Died)

4.M.Ganesh Kumar

5.M.Senthil Meenakshi

6.M.Senthilkumar

7.Muthupandi ... Respondents (R4 to R7 are brought on record as legal heirs of the deceased 2^nd respondent vide order dated 20.10.2023 made in C.M.P.(MD)No.7522 of 2021 in A.S.(MD)No.96 of 2021 by TKRJ & PBBJ)

Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, to set aside the judgment and decree dated 30.07.2020 passed in O.S.No.47 of 2014 on the file of the Principal District Judge, Theni, by allowing this appeal suit and decree the suit.

For Appellants : Mr.C.Ganesh Kumar For Respondents : Mr.K.K.Senthil for R1.

Mr.S.Vellaichamy for R6.

JUDGMENT

This appeal arises out of a suit for partition. The suit schedule properties belonged to Arasappa Thevar. He married one Dhanuskodi Ammal. Through the said wedlock, five children were born namely, A.Pushpa, A.Sakunthala, A.Ramachandran, A.Murugaiah and A.Sankareswari. Arasappa Thevar died on 09.12.1965 and his wife / Dhanuskodi Ammal passed away on 01.03.1989. Sakunthala got married in the year 1974 itself and Pushpa got married on 12.03.1984.

2.There was a partition of the suit schedule properties on

19.04.1991. It was reduced into writing and registered (Ex.A6). While so, Pushpa and Sakunthala filed O.S.No.47 of 2014 on the file of the Principal District Court, Theni seeking partition of their 2/5^th share in the suit properties. Pushpa examined herself as P.W.1 and Exs.A1 to A8 were marked. Ramachandran examined himself as D.W.1 and Exs.B1 to 23 were marked. After considering the evidence on record, the learned trial Judge vide judgment and decree dated 30.07.2020 dismissed the suit. Challenging the same, this appeal came to be filed.

3.During the pendency of the appeal, Murugaiah passed away and his legal heirs have been brought on record. During the trial, Sankareswari passed and her legal heirs were also brought on record.

4.The only question that calls for consideration is whether the impugned judgment and decree dismissing the partition suit deserves to be interfered with.

5.The plaintiffs obviously felt inspired to file the partition suit in view of the amendment made to Section 6 of the Hindu Succession Act, 1956. The said section reads as under:-

“6. Devolution of interest in coparcenary property. —

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

(a)by birth become a coparcener in her own right in the same manner as the son;

(b)have the same rights in the coparcenary property as she would have had if she had been a son;

(c)be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2)Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3)Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and