IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.02.2022

CORAM

THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN

A.S.No.87 of 2017

Devathal

...Appellant/Plaintiff

vs.

Periasamy

... Respondent/Defendant

PRAYER: Appeal Suit is filed under Order 41 Rule 1 of the Code of

Civil Procedure read with Section 96 of the Code of Civil

Procedure, against the judgment and decree of the learned III

Additional District Judge, Dharapuram in O.S.No.17 of 2016 dated

02.01.2017.

For Appellant : Mr.A.K.Kumarasamy, Senior Counsel

for Mr.S.Kaithamalai Kumaran

For Respondent : Mr.M.Guruprasad

J U D G M E N T

The plaintiff, in O.S.No.17 of 2016, which was pending on

the file of the III Additional District Court, Dharapuram, is the

appellant herein. The respondent in the present appeal who was

also the defendant is her own brother. For the sake of

convenience, let me revert back to the nomenclature as was

referred to in the trial Court viz., plaintiff and defendant. To

reiterate, the plaintiff is the appellant and the defendant is

the respondent herein.

2. The plaintiff, had filed the suit in O.S.No.17 of

2016, which was subsequently taken up for trial, by the learned

III Additional District Judge, Dharapuram, for partition and

separate possession of ½ share with respect to the suit

properties. In the plaint, it had been stated that the father of

the plaintiff and the defendant viz., Kandhasamy Gounder had died

in the year 2001. The mother of the plaintiff and the defendant

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had pre-deceased the father. The properties mentioned in the

schedule to the plaint, to which the partition is now sought for,

are ancestral properties. Claiming ½ share in the suit

properties, the suit has been filed.

3. In the written statement, the defendant also put up

the very same stand that the properties are ancestral in nature

and that the mother had pre-deceased the father. It was claimed

that therefore, when the father and the defendant were alive,

they were both equally entitled to ½ share and on the death of

the father, the ½ share of the father has to be divided into two

shares, leaving the plaintiff entitled to 1/4^th un-divided share

and the defendant who already had ½ share entitled to another

1/4^th un-divided share, leaving the defendant with 3/4^th share.

4. The learned Additional District Judge had framed the

following issues for trial:

1. Whether the suit is hit by res judicata?

2. Whether the plaintiff can seek partition and

separate possession under the Act 39 of 2005

amended by the Central Government to the Hindu

Succession Act?

3. Whether the plaintiff is entitled for partition

and permanent injunction?

4. To what other reliefs are the parties entitled?

5. The parties went to trial and during the course of

trial, the plaintiff examined herself as PW1 and for good measure

the defendant also examined himself as DW1. On the side of the

plaintiff, Exs.A1 to A6 were marked. Ex.A1 is the partition deed

dated 12.08.1974. Ex.A2 is the death certificate of the father

dated 07.10.2001 and Ex.A6 was the plaint in O.S.No.229 of 2011,

and probably based on the particular suit, the first issue of res

judicata was framed by the trial Judge. The defendant marked

Exs.B1 to B3. The defendant primarily marked documents relating

to possession and claimed exclusivity on that particular aspect

and marked Kisth receipts as Ex.B1, property tax receipts as

Ex.B2 and Computerized chitta as Ex.B3.

6. Heard Mr.A.K.Kumarasamy, learned Senior Counsel

appearing for the appellant and Mr.M.Guruprasad, learned counsel

appearing for the respondent.

7. The point which arises for consideration under Order

41 Rule 31 of the Code of Civil Procedure is the effect of the

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introduction of the amendment of Section 6 of the Hindu

Suc