IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on

:07.02.2022

Pronounced on

:17.02.2022

Coram::

THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

Appeal Suit No.1016 of 2008

V.Bakkiyam

..Appellant/Plaintiff

/versus/

1.C.Kandasamy Gounder(died)

2.K.Murugan

3.Sanjai Savla

4.Major Sibi Chakravarthy @ Magudeeswaran

5.Major Mageswaran

(memo dated 23.04.2013 recorded in

S.R.No.3246 vide Court order dated

07.02.2022 made in A.S.No.1016 of 2008)

(1^st respondent died, sole appellant and R2

brought into record as LRs of the deceased

1^st respondent viz (C.Kandasamy Gounder)

vide Court order dated 07.02.2022 made

in A.S.No.1016 of 2008 (Dr.GJJ))

(RR4 & 5 declared as major and

the guardian R3 viz Sanjai Sevla

discharged from the guardianship

vide Court order dated 20.12.2021

made in C.M.P.Nos.21054 & 21055

of 2021 in A.S.no.1016 of 2008

(AANJ))

..Respondents/Defendants

Prayer: Appeal Suit has been filed under Section 86 of C.P.C.,

praying to set aside the judgment and decree dated 30.06.2008

and made in O.S.No.100 of 2006 on the file of the Additional

District Judge/Fast Track Court No.2, Salem.

For Appellant

:Mr.R.Thiagarajan for

Mr.T.Gowthaman

For Respondents :Mr.P.Jagadeesan for R2, R4 and R5

Mr.D.M.Senthil Kumar for R3

R1-died

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J U D G M E N T

Suit for partition filed by the sole appellant herein was

dismissed by the trial Court. Being aggrieved by the judgment

of dismissal, the present Appeal Suit is filed.

2.For clarity sake, parties are referred to their status

and ranking found in the trial Court decree.

3.Brief facts of the case as per the plaint is that,

Kandasamy Gounder (first defendant) had two wives. The plaintiff

is the daughter of his senior wife Pongiammal. The first

defendant got separated from his senior wife and married the

mother of the second defendant in the year about 1968. The

mother of the plaintiff died in the year 2001. The suit

properties are the ancestral properties of the first defendant.

Hence, as per the Hindu Succession (Amendment) Act, 2005, being

the daughter of the first defendant, the plaintiff has sought

for 1/3^rd share in the suit property. In support of the said

claim, the plaintiff has relied upon the joint sale of the

ancestral property on 19.08.2002 by the family members, to show

it has been jointly enjoyed by the plaintiff and the

defendants. The plaintiff had contended that the defendants

among themselves excluding her had created a registered deed of

partition on 21.01.2004 in respect of the ancestral property.

The said partition is non-est in law and fraud played against

the plaintiff. On the very same day, the first defendant had

settled the properties in favour of the second defendant's minor

sons. The partition deed and the subsequent settlement deed have

no binding effect on the plaintiff. Hence, after making a

demand for partition, the suit for partition claiming 1/3^rd share

in the suit schedule property came to be instituted.

4.The first defendant, who is the father of the

plaintiff, in his written statement, had contended that, the

plaintiff does not form part of the Hindu joint family. The suit

properties are not Hindu joint family properties. The Hindu

Succession (Amendment Act) 2005, will not apply to the

plaintiff. Therefore, the plaintiff have no right to claim 1/3^rd

share in the suit property. The suit schedule properties were

subjected to partition on 21.01.2004 and the partition deed was

duly registered. As per the registered partition deed dated

21.01.2004, “A” schedule property measuring 03.22 acres in

S.No.123/1 of Gajjainaickenpatti Village with half share in the

well and five horse power electric motor and pumpset, allotted

to the first defendant. The second defendant was allotted 2.25

acres of land with half share in the well and five horse power

electric motor and pumpset.