IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 18.02.2022

Pronounced on :

03.03.2022

Coram::

THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

Appeal Suit Nos.341 & 353 of 2015

A.S.No.341 of 2015:-

1. Chinnusamy,(Rep by Power Agent Krishnaveni)

2. Thangavel,

... Appellants/Defendants

/versus/

S.Thangammal,

... Respondent/Plaintiff

Prayer: Appeal Suit is filed under Section 96 of C.P.C., against

the judgment and decree dated 26.02.2015 in O.S.No.154 of 2013

on the file of the Additional District Court, Namakkal so far as

it relates to granting a decree for partition in favour of the

plaintiff, the respondent herein for 1/3^rd share in schedule 1 of

the suit property.

For Appellants : Mr.D.Shiva Kumaran

For Respondent

: Mr.T.Dhanyakumar

A.S.No.353 of 2015:-

S.Thangammal,

... Plaintiff/Appellant

/versus/

1. Chinnusamy,

(Rep. By Power Agent Krishnaveni).

2. Thangavel,

... Defendants/Respondents

Prayer: Appeal Suit is filed under Section 96 of C.P.C., praying

to set aside the judgment and decree dated 26.02.2015 made in

O.S.No.154 of 2013 on the file of the Additional District Court,

Namakkal.

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For Appellant

: Mr.T.Dhanyakumar

For Respondents : Mr.D.Shiva Kumaran

COMMON JUDGMENT

These two appeals are directed against the judgment and

decree passed by the Trial Court in O.S.No.154 of 2013 filed for

partition of the 1^st and 2^nd schedule of the suit properties. The

Trial Court, while considering positively in favour of the

plaintiff in respect of 1^st schedule property, dismissed the suit

in respect of 2^nd schedule property. The defendants, who has

lost the suit in respect of 1^st schedule property had preferred

A.S.No.341 of 2015. The plaintiff, who has lost the suit in

respect of 2^nd schedule property has preferred A.S.No.353 of

2015.

2. The short facts involved in this case as stated in the

plaint is that, the 2^nd defendant/Thangavel is the father of

plaintiff/Thangamal and 1^st defendant Chinnusamy. The plaintiff

claiming suit schedule properties are ancestral properties and

jointly held by Thangavel and his two children, prepared the

suit for partition. According to the plaintiff, the properties

enumerated in 1^st schedule of the plaint was ancestral property

of Thangavel, which he got through the partition between his

parents, brother and son vide registered deed dated 31.07.1981.

From out of the said nucleus, 2^nd schedule property was

purchased. While so, both 1^st and 2^nd schedule of the suit

properties have attained the character of coparcener property

and available for division between sons and daughter of Hindu

Male Karta namely Thangavel. The amended Hindu Succession Act,

39/2005 recognises the female heirs as coparcener along with

male heirs, while so ignoring the right of the daughter, who is

the plaintiff, her father Thangavel executed a release deed on

11.02.2013, in favour of his son Chinnusamy, the 1^st defendant in

respect of property mentioned under 1^st schedule. Such release

in favour of one of the coparcener will inure the right and

enlarge the right of other coparcener. Therefore, the plaintiff

is entitled for ½ share in the properties mentioned in 1^st

schedule.

3. Regarding the property mentioned in 2^nd schedule,

being the property purchased from the ancestral nucleus and

surplus also carries character of ancestral property in which

the plaintiff is entitled for 1/3^rd share. The 2^nd defendant in

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respect of this property had clandestinely executed a registered

settlement deed on 03.02.2013 in favour of his son Chinnusamy/

the 1^st defendant . This came to the knowledge of the defendant

only on 01.10.2013. The said settlement deed is void and will

not take away the share of the plaintiff in the suit 2^nd schedule

property. Therefo