IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.06.2025 CORAM:

THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP Appeal Suit. No.53 of 2024 and CMP.No.1513 of 2024 Minor. Mohitra Rep. By her next friend Mother/Saranya ... Appellant -Vs-

1. K.Palaniappan

2. P.Usha

3. P.Prakash ... Respondents Prayer:- Appeal Suit filed under Section 96 of Civil Procedure Code to set aside the Judgment and Decree dated 14.08.2023 made in I.A.No.216 of 2022 in O.S.No.23 of 2018 on the file of the learned third Additional District Judge, Kallakurichi.

For Appellant : Mr.N.Manoharan For Respondents : Mr.N.Nathami for Mr.M.R.Vivekananthan

J U D G M E N T

This First Appeal has been filed to set aside the Judgment and Decree dated 14.08.2023 made in I.A.No.216 of 2022 in O.S.No.23 of 2018 on the file of the learned third Additional District Judge, Kallakurichi.

2. The learned Counsel for the Appellant submitted that the Plaintiff in O.S.No.23 of 2018 on the file of the learned 3^rd Additional District Judge, Villupuram at Kallakurichi is the Appellant herein. The Suit was instituted on behalf of the minor daughter her the mother as the guardian/next friend as Plaintiff, against the Defendants 1 to 3 seeking the relief of partition.

3. The minor Plaintiff is the daughter of the third Defendant. The first Defendant is the paternal grandfather. As per the Plaint averments, the Suit property described in the Plaint Schedule was allotted to the share of the Defendants 1 to 3 in the family partition wherein, in the partition deed dated 02.12.1998 it is clearly mentioned as ancestral property. On the date of such partition, if the coparceners were unmarried, then the property could be considered as self-acquired property. The Defendants 1 to 3 are father and son and therefore, after marriage of the third Defendant, automatically the daughter has to be treated as a coparcenor to the property, as per Section 6 of the Hindu Succession Act as amended (dated

13.08.2005).

4. The learned Judge had proceeded under the presumption that it was a self-acquired property of the late grandfather of the Defendants 1 and 3, in which the Plaintiff has now claimed partition. Therefore, the Order passed by the learned 3^rd Additional District Judge, Villupuram at Kallakurichi in I.A.No.216 of 2022 in O.S.No.23 of 2018 allowing the Petition under Order VII Rule 11 of Civil Procedure Code filed by the first Defendant, paternal grandfather of the Plaintiff, is erroneous and liable to be set aside.

5. In support of his contention, the learned Counsel for the Appellant had relied on the following rulings:-

(i) In the case of Rohit Chauhan Vs. Surinder Singh and others ((2013) 9 SCC 419. The relevant portion reads as follows:-

“11. We have bestowed our consideration to the rival submission and we find substance in the submission of Mr. Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the Joint Hindu family and before commencement of Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.

14. A person