IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.07.2021

CORAM

THE HON'BLE MR.JUSTICE C.SARAVANAN

S.A.NO.979 OF 2012

AND

M.P.NO.1 OF 2012

(THROUGH VIDEO CONFERENCING)

A.Ashraffa

...Appellant / 4^th Defendant

Vs.

1.Saraswathi

...1^st Respondent / Plaintiff

2.S.Sivaraj

3.S.Gunaseelan

4.Deepa

...Respondents 2 to 4 / Defendants 1 to 3

Second Appeal filed under Section 100 of Civil Procedure

Code, 1908 against the Judgment and Decree dated 01.03.2012

passed by the Principal District Court, Erode in A.S.No.68 of

2011 confirming the Judgment and Decree dated 11.08.2010 passed

by I Additional Subordinate Court, Erode in O.S.No.18 of 2006.

For Appellant

:

Mr.M.Krishnamurthy

For R1

:

Mr.N.Manokaran

For R2 to R4

:

No appearance

J U D G M E N T

The appellant is aggrieved by the impugned Judgment and

Decree dated 01.03.2012 passed by the Principal District Judges

Court, Erode (hereinafter referred to as Appellate Court) in

A.S.No.68 of 2011. The fourth defendant in O.S.No.18 of 2006 is

the appellant in this Second Appeal.

2. Earlier, O.S.No.18 of 2006 was filed by the first

respondent/plaintiff before First Additional Subordinate Judges

Court, Erode (hereinafter referred to as Trial Court) for the

following relief:-

i. dividing the suit properties into two equal

shares by metes and bounds with reference to

good and bad soil;

ii.allotting one such share to the plaintiff* and

put her in possession of the same;

iii.appointing a commissioner to divide the suit

property in the aforesaid manner; and

iv.granting a permanent injunction to restrain the

fourth defendant** from trespassing into the

suit properties to take possession forcibly or

interfering in any manner with the plaintiff’s*

peaceful possession and enjoyment of the same

till a permanent portion worked out between the

plaintiff and the defendants 1 to 4.

(* first respondent; ** appellant)

3. O.S.No.18 of 2006 filed by the first respondent/

plaintiff was dismissed by the Trial Court by its Judgment and

Decree dated 11.08.2010.

4. On further appeal by first respondent/plaintiff, the

Appellate Court by the impugned Judgment and Decree dated

01.03.2012 in A.S.No.68 of 2011 partly reversed the Judgment and

Decree dated 11.08.2010 passed by the Trial Court in O.S.No.18

of 2006 dismissing the aforesaid suit. Operative portion of the

impugned Judgment and Decree of the Appellate Court reads as

under:-

29. In the result, the appeal suit is partly

allowed. The judgment and decree passed in

O.S.No.18 of 2006 on the file of the First

Additional Subordinate Judge, Erode dated

11.08.2010 are set aside. The suit in O.S.No.18

of 2006 is partly allowed and a preliminary

decree is passed for partition of the suit

properties into equal shares and allotment of

one such share to the appellant/plaintiff. The

suit, in so far as the permanent injunction is

concerned, is dismissed. The parties are

directed to bear their own costs throughout.

5.

The appellant/fourth defendant purchased the suit

schedule property from the third respondent/second defendant

vide Ex.A2 Sale Deed dated 28.12.2005. The property is an

ancestral

property.

The

first

and

the

second

respondents/plaintiff and first defendant are the siblings born

to one Seethappa Gounder who died on 28.09.1993. The first

respondent got married on 26.06.1978. The dispute over the suit

schedule property arises on account of Section 29-A and Section

6 of the Hindu Succession Act, 1956.

6. Section 29-A was inserted to the Hindu Succession Act,

1956 with effect from 25.03.1989. By a legal fiction, unmarried

daughters were given the same rights as that of male coparcener

over the coparcenary property.

7. Since the first respondent/plaintiff was married to one

Nachimuthu on 26.06.1978, no claim for right over the property

was made by the first respondent/plaintiff a