A.S.No.596 of 2019

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

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A.S.No.596 of 2019

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:-

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A.S.No.596 of 2019

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

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A.S.No.596 of 2019

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