(Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the Judgment and Decree dated 08.08.2019 passed in A.S.No.129 of 2018 on the file of the Principal District Judge, Tirunelveli, confirming the Judgment and Decree dated 25.09.2018 made in O.S.No.73 of 2013 on the file of the learned Principal Subordinate Judge, Tirunelveli.)

1. The defendants in a suit for partition, aggrieved by the concurrent findings rendered by the trial Court and the first appellate Court, are the appellants in the present second appeal.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. The second appeal was admitted on 21.11.2019 on the following substantial questions of law:-

               “(A) Whether the Courts below have framed issue, as to whether the deceased Selvaraj wife Chandra (PW2) has right over the suit property after she has received Selvaraj death benefits as per the exhibit XI and X2 under Section 33(a) of the Indian Succession Act, which is real issue which consideration?

               (B) Whether the plaint is barred by Article 110 of the Limitation Act, when the plaintiff have purchased the property through exhibit A2 sale deed dated 21.08.1996?

               (C) Whether the Courts below are right in holding that the plaintiff and Appellant/defendant are joint possession of the suit property, when the Respondent/Plaintiff has filed earlier suit for declaration and Recovery of possession in O.S.No.165 of 2010 and lost?”

4. I have heard Mr.J.John, learned counsel for the appellants and Mrs.J.Roshini, for Mr.G.Prabhu Rajadurai, learned counsel for the respondent.

5. Brief facts that are necessary for adjudicating the second appeal are as hereunder:-

               The plaintiff is the sister of the defendants. The suit property was originally a vacant site, which belonged to one Ponnusamy, the father of the plaintiff and the defendants, he having purchased the same under registered sale deed dated 03.03.1966. The father of the parties executed a settlement deed on 06.09.1984 settling the southern side, a vacant site in favour of his son Selvaraj, who is the brother of the plaintiff and the defendants. Ponnusamy, the father also executed a registered Will on 10.04.1984 in favour of the second defendant, who is his other son, and his wife Jebamani, bequeathing northern portion of the suit schedule property to them. Selvaraj, the son having become owner, having put up construction in the southern side of the vacant site, was in absolute possession and enjoyment till his death in 1992. Selvaraj died without any issues. The property of Selvaraj was inherited by his wife and mother. The wife and mother of Selvaraj sold the property to the plaintiff under registered sale deed dated 21.08.1996. The plaintiff has assessed the property in her name and the plaintiff also constructed first floor over the existing ground floor put up by Selvaraj. The father of the plaintiff died in the year 1987 and the Will dated 10.09.1984 came into effect. The second defendant and his mother Jebamani occupied the northern portion of the schedule property in terms of the Will. The second defendant and his mother jointly sold the northern side property in favour of the first defendant under registered sale deed dated 14.07.1993. Later, in 2003, the first defendant executed a settlement deed in respect of the western portion of the northern side property in favour of her mother. The plaintiff’s mother, viz., Jebamani constructed a house in the said western portion and gifted the same to the second defendant. In the eastern side of the northern side property, the first defendant had already constructed a house. The second defendant returned to Palaymkottai and settled in the property lying on the western side of the northern side of the property. The first defendant is residing on the eastern side. Both properties are having entry towards northern side. The mother of the plaintiff was permitted to reside in the plaint schedule property, since the defendants assured to take care of the mother as they are leaving closer to the plaint schedule property. The defendants were therefore permitted access to the property, since the mother was in permissive occupation. The plaintiff's belongings were kept in the first floor and the mother of the plaintiff died on 20.12.2008 and the plaintiff requested the defendants to surrender possession on 07.12.2008. The defendants initially agreed to hand over possession, but, later refused, which constrained the plaintiff to file a suit in O.S.No.7 of 2009. In the said suit, the defendants herein filed a written statement stating that on the intestate demise of Selvaraj, the plaintiff’s mother and the defendants are entitled to 1/4 share each, as per the Indian Succession Act. Taking note of the defence, the suit was dismissed on the ground that the plaintiff’s vendors did not have any absolute right over the schedule property and the wife of Selvaraj is entitled to 1/3 share and the remaining 2/3 alone would be devolve upon his mother, brother and sisters. Against, the judgment, an appeal in A.S.No.57 of 2011 has been preferred.

               5.2. Pending the said appeal, the plaintiff filed I.A.No.20 of 2012 to withdraw the suit with liberty to file a suit for partition. The said application was allowed on 05.11.2012 and based on the said liberty granted, the present suit for partition has been filed, claiming an equal share for the suit property.

6. Denying the plaint allegations, it was contended by the defendants that the first defendant was employed with the Tamil Nadu Electricity Board and only from and out of his contribution, Selvaraj put up dwelling house in the suit property. The sale deed executed by the wife and mother of Selvaraj is not binding on the defendants. After the death of Selvaraj, his wife left her matrimonial home and settled with her parents and she also got appointment in Tamil Nadu Electricity Board on compassionate grounds. The first defendant and her mother Jebamani alone lived in the suit property and the first defendant constructed the first floor out of her earnings. Wife of Selvaraj did not make any contribution for the construction of the first floor, which belongs to the first defendant exclusively. The mother and the wife of Selvaraj received the entire death service benefits, which is more than the value of the suit property and had given up their right in favour of the defendants. The first defendant also gave 100 sovereigns of gold jewels during the plaintiff’s daughter's marriage and the suit is filed only to harass the defendants. The plaintiff is not entitled to any right much less 8/12 share.

7. At trial, the plaintiff examined herself as P.W.2 and one Nalliah was examined as P.W.1 and Ex.A1 to Ex.A19 were marked. On the side of the defendants themselves examined as D.W.1 and D.W2 and one Boothalaingam was examined as D.W.3 and Ex.B1 to Ex.B8 were marked. Apart from this, Ex.X1 and Ex.X2 were marked as Court documents.

8. The trial Court, after assessing the oral and documentary evidence, accepted the plaintiff’s case, granted a preliminary decree. Aggrieved by the findings of the trial Court, the defendants preferred an appeal in A.S.No.129 of 2019.

9. The first appellate Court dismissed the appeal, confirming the findings of the trial Court granting a preliminary decree of 9/12 share to the plaintiff.

10. Aggrieved by the judgment and decree, the defendants have filed this Second Appeal.

11. Argument of the learned counsel for the appellants:

               11.1. The learned counsel for the appellants contends that the parties are Indian Christians and are bound by the provisions of Indian Succession Act. Relying on Section 33A, the learned counsel states that the mother is not entitled to any share in the estate of the deceased Indian Christian and the Courts below have committed a concurrent error in conferring a right on the mother of the deceased Selvaraj. He would also state that the suit is barred by limitation and the Courts below have not appreciate the legal bar for the plaintiff to claim a right, especially when the plaintiff's earlier suit for declaration had been dismissed and Selvaraj had died as early as in 1992. He would also place reliance on Ex..X1 and Ex.X2 to contend that the death benefits which are paid to the mother and wife of late.Selvaraj was more than the value of the suit property itself. The learned counsel would therefore state that the Courts below have not rightly appreciated Ex.A6, judgment in O.S.No.165 of 2010, where the plaintiff herself admitted that she was not in possession and in such circumstance, the Courts ought not to have granted a preliminary decree.

               11.2. In support of his submissions, the learned counsel has relied on the following decisions:-

               1. Judgment of the Division Bench of this Court in Agnes @ Karpaga Devi V. Pauline @ Pauline Iruthaya Mary, in A.S.No.596 of 2019, dated 07.11.2023;

               2. Judgment of this Court in Puniyavathi V. Pachaiammal, in A.S.No.251 of 2011 dated 22.02.2022; and

               3. Judgment of this Court in Pitchaikaran @ Ayyanar V. Muniammal, reported in 2018-8-MLJ-186.

12. Per contra, Mrs.J.Roshini, learned counsel appearing for the respondent/plaintiff would contend that the Courts below have not committed any error. Firstly with regard to the applicability of Section 33A of the Indian Succession Act, the learned counsel for the respondent / plaintiff would state that Section 33 of the Indian Succession Act will not apply to the facts of the present case, since there were admittedly no lineal descendant and Selvaraj died leaving behind his wife alone and therefore, Sections 41 onwards alone would apply to the facts of the present case and subsequently, the mother of the deceased would also be entitled to share along with wife. In this connection, the learned counsel would take me through the findings of the Courts below and state that Courts have rightly applied the provisions of Indian Succession Act and no interference is warranted. As regards limitation, the learned counsel would contend that being a suit for partition, the right is a continuing one and therefore, there is no question of the suit being barred. Further, it is admitted that the earlier suit was dismissed and pending appeal, an application was taken out for filing a fresh suit for partition and such liberty was also granted. Under such circumstances, the learned counsel for the first respondent would contend that the suit has been filed well within the prescribed limitation period and therefore, cannot be dismissed on the ground of limitation.

13. I have carefully considered the submissions advanced by the learned counsel on either side.

14. For better appreciation of the entitlement of the parties to a share in the suit property, the following provisions of the Indian Succession Act are relevant:

               “33. Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred. -Where the intestate has left a widow-

               (a) if he has also left any lineal descendants, onethird of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained;

               (b) if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained;

               (c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow.

               33A. Special provision where intestate has left widow and no lineal descendants.-

                (1) Where the intestate has left a widow but no lineal descendants and the nett value of his property does not exceed five thousand rupees, the whole of his property shall belong to the widow.

               (2) Where the nett value of the property exceeds the sum of five thousand rupees, the widow shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such property for such sum of five thousand rupees, with interest thereon from the date of the death of the intestate at 4 per cent. per annum until payment.

               (3) The provision for the widow made by this section shall be in addition and without prejudice to her interest and share in the residue of the estate of such intestate remaining after payment of the said sum of five thousand rupees with interest as aforesaid, and such residue shall be distributed in accordance with the provisions of section 33 as if it were the whole of such intestate's property.

               (4) The nett value of the property shall be ascertained by deducting from the gross value thereof all debts, and all funeral and administration expenses of the intestate, and all other lawful liabilities and charges to which the property shall be subject.

               (5) This section shall not apply—

               (a) to the property of-

               (i) any Indian Christian,

               (ii) any child or grandchild of any male person who is or was at the time of his death an Indian Christian, or

               (iii) any person professing the Hindu, Buddhist, Sikh or Jaina religion the succession to whose property is, under section 24 of the Special Marriage Act, 1872 (3 of 1872.), regulated by the provisions of this Act;

               (b) unless the deceased dies intestate in respect of all his property.

               41. Rules of distribution where intestate has left no lineal descendants. -Where an intestate has left no lineal descendants, the rules for the distribution of his property (after deducting the widow's share, if he has left a widow) shall be those contained in sections 42 to 48.

               42. Where intestate's father living.-

               If the intestate's father is living, he shall succeed to the property.

               43. Where intestate's father dead, but his mother, brothers and sisters living.-If the intestate's father is dead, but the intestate's mother is living and there are also brothers or sisters of the intestate living, and there is no child living of any deceased brother or sister, the mother and each living brother or sister shall succeed to the property in equal shares. Illustration A dies intestate, survived by his mother and two brothers of the full blood, John and Henry, and a sister Mary, who is the daughter of his mother but not of his father. The mother takes one-fourth, each brother takes one-fourth and Mary, the sister of half blood, takes one-fourth.

               44. Where intestate's father dead and his mother, a brother or sister, and children of any deceased brother or sister, living. –

               If the intestate's father is dead but the intestate's mother is living, and if any brother or sister and the child or children of any brother or sister who may have died in the intestate's lifetime are also living, then the mother and each living brother or sister, and the living child or children of each deceased brother or sister, shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death.

               Illustration A, the intestate, leaves his mother, his brothers John and Henry, and also one child of a deceased sister, Mary, and two children of George, a deceased brother of the half blood who was the son of his father but not of his mother. The mother takes onefifth, John and Henry each takes one-fifth, the child of Mary takes one-fifth, and the two children of George divide the remaining one-fifth equally between them.

               45. Where intestate's father dead and his mother and children of any deceased brother or sister living. –

               If the intestate's father is dead, but the intestate's mother is living, and the brothers and sisters are all dead, but all or any of them have left children who survived the intestate, the mother and the child or children of each deceased brother or sister shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death.

               Illustration A, the intestate, leaves no brother or sister but leaves his mother and one child of a deceased sister, Mary, and two children of a deceased brother, George. The mother takes one-third, the child of Mary takes one-third, and the children of George divide the remaining one-third equally between them.

               46. Where intestate's father dead, but his mother living and no brother, sister, nephew or niece. -If the intestate's father is dead, but the intestate's mother is living, and there is neither brother, nor sister, nor child of any brother or sister of the intestate, the property shall belong to the mother.

               47. Where intestate has left neither lineal descendant, nor father, nor mother. -Where the intestate has left neither lineal descendant, nor father, nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death.

               48. Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister.-Where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.

               Illustrations (i) A, the intestate, has left a grandfather, and a grandmother and no other relative standing in the same or a nearer degree of kindred to him. They, being in the second degree, will be entitled to the property in equal shares, exclusive of any uncle or aunt of the intestate, uncles and aunts being only in the third degree.

               (ii) A, the intestate, has left a great-grandfather, or a great- grandmother, and uncles and aunts, and no other relative standing in the same or a nearer degree of kindred to him. All of these being in the third degree will take equal shares.

               (iii) A, the intestate, left a great-grandfather, an uncle and a nephew, but no relative standing in a nearer degree of kindred to him. All of these being in the third degree will take equal shares.

               (iv) Ten children of one brother or sister of the intestate, and one child of another brother or sister of the intestate, constitute the class of relatives of the nearest degree of kindred to him. They will each take one-eleventh of the property.”

15. Here, admittedly Selvaraj died without leaving any issue. Since Section 41 of the Indian Succession Act deals specifically with such a situation, the appellant cannot invoke Section 33. Only Sections 41 to 48 of the Act are applicable in the present case and consequently, the mother of the deceased would arbitrarily be entitled to a share.

16. In view of the above, I do not see how the decision of the Hon'ble Division Bench in Agnes @ Karpaga Devi's case would apply to the facts of the present case, where on facts, the Hon'ble Division Bench held that the deceased had died leaving behind a widow and in such circumstances, the mother would not be entitled to any share. The plaintiff, in fact, has already purchased the share of Selvaraj's wife and mother in and by a registered sale deed on 21.08.1996 and it is only in respect of the entire property that the suit has been filed seeking partition. In such circumstances, I do not see how the actions of said Selvaraj in the year 1992 or the dismissal of O.S.No.165 of 2010 would come in the way of the plaintiff, the plaintiff seeking relief, putting limitation against the plaintiff. In fact, as already discussed, the suit in O.S.No.165 of 2010 was no doubt dismissed against the plaintiff. However, pending the first Appeal, the plaintiff was given liberty under Order 23 CPC to withdraw the suit to file a fresh suit for partition and the present suit has been filed. Therefore, when the plaintiff seeks a relief of partition having admittedly purchased the shares of the mother and sister of Selvaraj, the plaintiff becomes a co-owner and is certainly entitled to seek partition. There is no plea of ouster and admittedly the plaintiff has been in constructive possession of the suit property and therefore, in such circumstances, I do not see how the suit can be said to be barred by limitation, and Article 110 of the Limitation Act therefore cannot be applied.

17. In Puniyavathi's case, the Court found that the property had already been divided in the year 1991 under registered document and the same was not questioned by the plaintiff for 31 years and in such circumstances, Section 27 of the Limitation Act was applied to non-suit the plaintiff. This decision is therefore not applicable to the facts of the present case.

18. In Pitchaikaran's case, this Court held that applying Article 110 of the Limitation Act, on the admitted facts of the said case that the plaintiffs themselves admitted to be excluded from enjoyment of the property for a very long period of time and they had also failed to produce to any material to establish that they were in joint possession and enjoyment of the property. Therefore, this decision also cannot be applied here.

19. In the light of the above, I do not see any grounds warranting interference under Section 100 of the Code of Civil Procedure. Substantial questions of law are answered against the appellants / defendants. This Second appeal is dismissed. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.