1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.234 of 2011 and MISCELLANEOUS PETITION No.2 of 2011 1. Meenakshi 2. Valli .. Appellants/Plaintiffs Vs. Nallappan .. Respondent/Defendant Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 30.09.2010 passed in Appeal Suit No.73 of 2009 by the Sub Court, Sivagangai reversing the Judgment and decree dated 29.06.2009 passed in Original Suit No.158 of 2007 by the District Munsif Court, Sivagangai. For Appellants : Mr.S.S.Sundar For Respondent : Mr.S.Srinivasa Raghavan JUDGMENT The Judgment and decree dated 30.09.2010 passed in Appeal Suit No.73 of 2009 by the Sub Court, Sivagangai are being challenged in the present second appeal. 2. The appellants herein as plaintiffs have instituted Original Suit No.158 of 2007 on the file of the District Munsif Court, Sivagangai for the reliefs of partition and separate possession of their 2/3 shares, wherein the present respondent has been shown as sole defendant. 3. In the plaint it is averred that the plaintiffs are the sisters of the defendant and their father name is Karuppan Udayar and he passed away leaving behind him the plaintiffs and defendant. The suit properties are the ancestral properties and in which the plaintiffs are having 2/3 shares. Since the defendant has not conceded for having amicable partition, the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendant, it is averred that Survey Nos.73/12, 73/2, 73/7, 93/24 and 93/7 have been purchased by the defendant by using his separate funds and therefore the same are his self-acquired properties. The items 6 and 7 in the suit 'B' schedule properties have already been sold to https://hcservices.ecourts.gov.in/hcservices/ 2 third parties. With regard to ancestral properties, an oral partition has been effected in between the defendant and his father and after his demise, the defendant has been enjoying the remaining suit properties by way of ousting the plaintiffs for more than a statutory period. Under the said circumstances, the plaintiffs are not entitled to get the reliefs sought for in the plaint and there is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit in respect items 1,2 and 4 in suit 'A' schedule properties and items 4 and 5 in 'B' schedule properties and decreed the suit as prayed for in respect of the remaining properties. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.73 of 2009 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal and thereby dismissed the suit in toto. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the plaintiffs as appellants. 7. As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 8. On the side of the appellants/ plaintiffs, the following substantial questions of law have been raised for consideration: a) Are not the plaintiffs entitled to 2/6 share in joint family properties by virtue of proviso to Section 6 of Hindu Succession Act? b) Are not the plaintiffs entitled to equal share as that of the male heir by virtue of the amendment Act in 2005 particularly when the right recognized is a right by birth and there was no partition in the family? c) Whether the dismissal of suit by lower appellate court is legally sustainable? 9. The learned counsel appearing for the appellants/plaintiffs has laconically contended that even though in the plaint it is stated to the effect that the plaintiffs are having 2/3 shares in the suit properties, since the plaintiffs themselves have pleaded in the plaint to the effect that the suit properties are the ancestral properties, each plaintiff is having 1/6 share in the suit properties and further no evidence has been let in with regard to alleged partition in between the father of the plaintiffs, defendant and defendant and no acceptable evidence has been let in with regard to ouster and under the said circumstances except the items mentioned https://hcservices.ecourts.gov.in/hcservices/ 3 supra in the remaining items of suit properties, the plaintiffs are in aggregation entitled to get 2/6 shares and to that extent the present suit may be decreed. 10. The learned counsel appearing for the respondent/defendant has also equally contended that during the lifetime of father, an oral partition has been effected and after his death the defendant has had enjoyed the remaining items of suit properties for more than a statutory period by way of ousting the plaintiffs and therefore the plaintiffs are not entitled to get the reliefs sought for in the plaint and altogether the Judgment and decree passed by the first appellate Court are perfectly correct and the same do not warrant interference. 11. As stated earlier, the trial Court has dismissed the suit in respect of items 1,2 and 4 of suit 'A' schedule properties and items 4 and 5 of suit 'B' schedule properties. Against the dismissal, the plaintiffs have not preferred any appeal and therefore the Judgment and decree passed by the trial Court in respect of the items mentioned have become final. Now the Court has to look into the remaining items of suit properties. 12. In paragraph No.4 of the written statement, it is averred that items 6 and 7 of the suit 'B' schedule properties have already been sold to third party and to prove the same no document has been filed and likewise in paragraph No.5 of the written statement, it is averred that prior to twenty years, an oral partition has been effected in between the father and defendant and to that effect also no worthwhile evidence has been let in on the side of the defendant. In paragraph No.8 of the written statement, it has been pleaded to the effect that the defendant has ousted the plaintiffs for more than a statutory period and therefore the defendant has become absolute owner of the remaining suit properties. With regard to the said aspect also no acceptable and trustworthy evidence has been let in on the side of the defendant and therefore the sale alleged to have been made in respect of items of 6 and 7 to a third party, oral partition alleged to have been takenplace in between the defendant and his father and also the ouster putforth on the side of the defendant cannot be accepted. 13. As stated earlier, no appeal has been preferred against the dismissal of items 1,2 and 4 of suit 'A' schedule properties and items 4 and 5 of suit 'B' schedule properties. With regard to remaining items, the Court can very well grant partition in favour of the plaintiffs. 14. Even though in the plaint it is stated that the plaintiffs are having 2/3 shares, since in the plaint itself it has been clearly mentioned that all the suit properties are the ancestral properties, it is needless to say that by way of birth the defendant is having 1/2 share and with regard to remaining 1/2 share the plaintiffs as well as defendant are having equal right and in that way in aggregation the plaintiffs are having 2/6 shares and the remaining https://hcservices.ecourts.gov.in/hcservices/ 4 4/6 shares should go to the defendant and to that effect the Judgment and decree passed by the first appellate Court are liable to be set aside. Since the Judgment and decree passed by the first appellate Court are liable to be set aside, the substantial questions of law raised with regard to the said aspect are really having substance. 15. In fine, this second appeal is allowed without costs at the stage of admission and the Judgment and decree passed in Appeal Suit No.73 of 2009 by the Sub Court, Sivagangai are set aside. The appellants/plaintiffs are in aggregation entitled to get 2/6 shares in items 3 and 5 in suit 'A' schedule properties and also in items 1,2,3,6 and 7 in suit 'B' schedule properties and to that extent a preliminary decree is passed without costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1.The Subordinate Judge, Sivagangai. 2.The District Munsif, Sivagangai. +1 CC to Mr.S.S.Sundar, Advocate (SR.No.19862) +1 CC to Mr.S.Srinivasa Raghavan, Advocate (SR.No.19714) S.A(MD)No.234 of 2011 and M.P(MD)No.2 of 2011 23.06.2011 smn NSV/9.8.11/4P/5C https://hcservices.ecourts.gov.in/hcservices/