AS.No.562 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.11.2023

CORAM

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

and

THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR

A.S.No.562 of 2017

and CMP No.18764 of 2017

K.Kailasamoorthy

... Appellant/1st Defendant

vs.

1. N.Indiradevi

... Plaintiff / 1st Respondent

2. Vijyalakshmi

3. K.N.Muthusamy

4. Murugambigai Muthusamy

5. C.Shankarappan

6. C.Duraisamy

... Defendants 2 to 6/Respondents 2 to 6

Appeal suit has been filed under Section 96 read with Order XLI

Rule 1 of the Civil Procedure Code, against the judgment and decree of

the I Additional District Court at Coimbatore, dated 03.04.2017 in OS.

No.20 of 2015.

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AS.No.562 of 2017

For Appellant

: Mr.P.Valliappan, Senior Counsel

for Mr.S.M.S.Shriram Narayanan

For Respondents

: Mr.G.Arivarasan, for R1

Dr.C.Ravichandren, for R2

RR3 to 6 - served - No appearance

J U D G M E N T

(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)

The first defendant in OS No.20 of 2015 assails the decree for

partition granted by the Trial Court by way of this Appeal.

2. The said suit was initiated by one of the daughters of

Kandhasamy, who died on 13.08.1965 leaving behind his wife

Lakshmiammal, two daughters viz. Vijayalakshmi and Indiradevi, the

second defendant and the plaintiff in the suit respectively, and

Kailasamoorthy, the first defendant/appellant herein. It is not in dispute

that Lakshmiammal died in 1997. The other defendants are the alienees

from the first defendant, after 09.09.2005 viz. the date on which the

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AS.No.562 of 2017

Hindu succession Amendment Act 39 of 2005, came into force.

3. The plaintiff laid the suit primarily contending that the suit

properties were ancestral Properties belonging to the joint family

consisting of Kandhasamy, herself and defendants 1 and 2. She based

her claim on the fact that the suit properties were allotted to Kandhasamy

at a partition that took place between him and his brothers on

29.07.1959. Contending that after the introduction of the Hindu

succession Amendment Act 39 of 2005, she would be a coparcener and

she would be entitled to equal share with that of the son, she had claimed

1/3^rd share in the suit properties.

4. The first defendant Kailasamoorthy, the son, resisted the claim,

while the second defendant daughter Vijayalakshmi sailed with the

plaintiff. The claim was resisted principally on the ground that

Kandhasamy having died even in the year 1965, the plaintiff would not

become a coparcener, the Amending Act would apply only if the Hindu

father was alive on the date of its coming into force viz. 09.09.2005. The

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AS.No.562 of 2017

first defendant in fact if we can say so, with fairness, conceded the share

of the plaintiff in the ½ share that would have belonged to Kandhasamy,

if a partition had taken place just before his death (Notional Partition

under Section 6 of the Hindu succession Act 1956). It was also

contended that the suit was hit by limitation.

5. On the above pleadings, the learned Trial Judge framed the

following issues:

1.Whether the sale by 1st defendant in respect

of 22 cents in favour of 3^rd and 4^th defendant is

legally valid and bind on the plaintiff;

2.Whether the suit properties are ancestral

coparcenary property belonging to the coparcenary

consisting the plaintiff and defendants 1 and 2;

3. Whether the plaintiff is entitled for 1/3

share in the suit property; and

4.What other relief the plaintiff is entitled to.

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AS.No.562 of 2017

6. At trial, the plaintiff was examined as P.W.1 and Exhibits A1 to

A10 were marked. The defendants did not let in any evidence either oral

or documentary.

7. The learned Trial Judge took up issues 2 and 3 together