(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code as against the Judgment and Decree dated 12.01.2016 made in A.S.No.52 of 2013 on the file of learned III Additional District Court, Namakkal reversing the Judgment and Decree dated 21.03.2011 made in O.S.No.269 of 2004 on the file of the Principal Sub Court, Salem.)

1. This Second Appeal has been preferred as against the Decree and Judgment passed by the III Additional District Court, Salem in A.S.No.52 of 2013 dated 12.01.2016. The appellant herein is the defendant before the trial court and the respondents 1 to 3 herein, who are the plaintiffs have filed the suit in O.S.No.260 of 2004 on the file of Principal Subordinate Court, Salem for the relief of partition, separate possession and for mesne profits. The said suit was decreed holding that the 1st plaintiff, Rajasekaran is entitled to 5/12 share and 2 and 3 plaintiffs each entitled to 1/12 share. Aggrieved by the said Decree and Judgment, the plaintiffs 2 and 3 have preferred Appeal Suit in A.S.No.52 of 2013 on the file of the learned III Additional District Judge, Salem and the First Appellate Court, granted ¼ share to the plaintiffs 2 and 3 by Judgment and Decree dated 12.01.2016. As against the said Decree and Judgment passed by the First Appellate Court, the present Second Appeal has been preferred by the defendant.

2. For the sake of convenience and brevity, the parties are referred as plaintiffs and defendant as referred before the trial court.

3. The case of the plaintiffs before the trial court is that the plaintiffs 1 and 2 and the defendant are sons and daughter of the deceased Govindasamy Gounder. The 3rd plaintiff is the wife of Govindasamy Gounder. The said plaintiffs and defendant constituted undivided hindu joint family and the suit properties are ancestral properties of late Govindasamy Gounder and he died in the year 1987, leaving behind his wife, sons and daughter to succeed his estate. The plaintiffs demanded partition over the properties, but the defendant evaded for partition, therefore, the plaintiffs issued notice dated 04.04.2004 and the said notice was returned, again, they issued another notice dated 28.06.2004 and the same was also returned as ‘unclaimed.’ The 1st plaintiff is in possession and enjoyment of one portion of 1/4th share and the defendant is in possession of the remaining portion, total extent of lands covered with irrigation facilities with two acres and remaining lands are dry lands. Since the defendant/son is evading from partition over the 2nd plaintiff / daughter, the plaintiffs have filed the suit.

4. The case of the defendant before the trial court is that the suit is false and the relationship of the parties are admitted and previously both the parties constituted a hindu joint family and now it is not in existence. The 2nd plaintiff was given in marriage in the year 1982, she is not entitled to share in the suit property and no notice was issued by the plaintiffs. In fact, on 16.06.1990, there was a panchayat convened between the parties, in which, the properties are allotted to the plaintiffs 1 and 3 and the defendant, thereby they are in possession and enjoyment of their respective shares. The suit is barred by the principle of ouster, therefore, the suit is liable to be dismissed.

5. Based on the above said pleadings and after hearing both sides, the trial court has framed the following issues for trial:-

                   “(1) Whether the 1st plaintiff is entitled to partition and separate possession of 5/12 share in Item Nos.1 and 2 of the suit properties?

                   (2) Whether the 2nd plaintiff is entitled to 1/12th share in Item Nos. 1 and 2 of the suit property and separate possession?

                   (3) Whether the 3rd plaintiff is entitled to 1/12th share in the item nos.1 and 2 of the Suit property and separate possession?

                   (4) Whether the plaintiffs 2 and 3 are entitled to mesne profits at the rate of Rs.500/- per annum till the delivery of possession?

                   (5) Whether the partition and separate possession pleaded by the defendant is true?

                   (6) To what other reliefs?” Further, the trial court re-casted the issues as under:-

                   “1. Whether the plaintiffs are entitled to 4/16 the share in the suit properties and separate possession?

                   2. Whether the plaintiffs 2 and 3 are entitled to mesne profit from the defendant?

                   3. Whether there was a previous partition held on 16.06.1990?

                   4. To what other reliefs?”

Before the trial court, on the side of the plaintiff, witness P.W.1 was examined and marked Exhibits A.1 to A.11 and on the side of the defendants, witnesses D.W.1 and D.W.2 were examined and Exhibits B.1 to B.13 were marked. After analysing the evidences adduced on both sides, the trial court decreed the suit by granting preliminary decree that the 1st plaintiff is entitled to 5/5 share and 1/12 share to the plaintiffs 2 and 3 and also granted mesne profits.

6. Aggrieved by the said Decree and Judgment, the defendant has not preferred the Appeal Suit, however, the plaintiffs 2 and 3 have preferred the Appeal Suit claiming that plaintiffs 1 and 3, are entitled to 4/16 share in the suit properties on various grounds. The First Appellate Court has framed the following points for determination:-

                   “1. Whether the trail court has committed an error in holding that the suit properties are the ancestral properties of the deceased Govindasamy Gounder after the partition took place on 11.12.1996?

                   2. Whether the Judgment and Decree of the trial court is not sustainable in law and facts and the same is liable to be setaside?

                   3. To what other reliefs?”

The First Appellate Court after considering the evidences adduced on both sides, set aside the Judgment and Decree passed by the trial court and decreed the Appeal Suit by holding that the plaintiffs 2 and 3 each are entitled to ¼ share. As against the said Decree and Judgment of the First Appellate Court, the present Second Appeal has been preferred by the defendant.

7. This Court, at the time of admitting the present Second Appeal on 31.08.2019, has framed the following Substantial Question of Law.

                   “Whether the lower Appellate Court has misinterpreted Ex.A.11 Partition deed to hold, that, only Govinda Gounder was allotted a share of the joint family properties, and therefore, the share allotted to him became his separate property, whereas the recitals read otherwise”

8. The learned Senior Counsel appearing for the appellant / defendant would submit that originally, the suit properties belonged to the father of the appellant and respondents 1 and 3 ancestrally. The 1st respondent was given in marriage in the year 1982. There was a panchayat partition between the parties and on 16.06.1990, partition was effected between the parties by excluding the 1st respondent and on the date of partition, the appellant and the respondents 2 and 3 were enjoying the properties of their respective shares, while so, the respondents have filed the suit for partition alleging that they are entitled to 1/4 share over the suit properties. The appellant also pleaded about the panchayat partition, however, the trial court failed to consider the same and granted relief of decree by holding that the 1st plaintiff entitled to 5/12 share and the 2nd and 3rd plaintiffs, each are entitled to 1/12 share, as the properties are ancestral properties, the properties have to be divided between the sons and Govindasamy Gounder and 1/3rd share of Govindasamy has to be divided between his wife and legal heirs of Govindasamy.

                   8.1. Aggrieved by the said Decree and Judgment, the appellant / defendant has not preferred the Appeal Suit, however, the plaintiffs 2 and 3 have preferred an Appeal Suit. The First Appellate Court has failed to consider that already the properties were partitioned between the legal heirs of Govindasamy gounder through Panchayat and they are in separate possession and enjoyment of their shares, but erroneously allowed the appeal and decided that the plaintiffs 2 and 3 are each entitled to ¼ share.

                   8.2. The First Appellate Court erroneously held that the properties are separate properties of Govindasamy Gounder and wife, sons and daughters, the legal heirs are equally entitled to share over the properties. The First Appellate Court failed to consider that the properties are ancestral properties of Govindasamy Gounder and the First Appellate Court held that the properties are separate properties of Govindasamy Gounder and therefore, the Decree and Judgment passed by the First Appellate Court are liable to be set aside by allowing the Second Appeal.

9. On the other hand, the learned counsel appearing for the respondents would submit that the plaintiffs filed the suit for relief of partition and separate possession and the defendant admitted the relationship, but according to the defendant properties are partitioned through panchayat on 16.06.1990, however, there was no evidence adduced by the defendant to prove that the said panchayat performed, thereby the trial court has granted decree holding that the 1st plaintiff is entitled to 5/12 and 2 and 3 plaintiffs each are entitled to 1/12 share. The trial court failed to consider that the plaintiff and defendants are equally entitled to ¼ share. After the amendment of Section 6 of Hindu Succession Act, in the year 2005, there was no any partition between the parties, however, the plaintiffs 2 and 3, preferred an Appeal Suit before the First Appellate Court. The First Appellate court has correctly decreed the suit by granting preliminary decree to divide the properties into four equal shares and allot ¼ share to each plaintiffs. Therefore, now the law has been settled, once the partition is not effected, after amendment to Section 6 of Hindu Succession Act, in the year 2005, daughters are also equally entitled to the property of the father, as coparcener. Therefore, the First Appellate Court has granted decree for partition by allotting ¼ share each to the plaintiffs and the said judgment is a well reasoned Judgment and the suit is liable to be dismissed.

10. Heard the learned counsel on either side and perused the entire documents placed on record.

11. In this case, there is no dispute in respect of the relationship between the parties and according to the plaintiffs, the suit properties are ancestral properties of Govindasamy gounder and he died in the year 1987 leaving behind the plaintiffs and defendant as his legal heirs, thereby the plaintiffs each are entitled to 4/16 share, but the defendant was evading from partition, thereby the plaintiffs filed the suit. The defendant also not denied the relationship between the parties, however, the defendant pleaded that there was an oral panchayat held between the parties on 16.6.1990 and in that partition, the 2nd plaintiff was excluded as she was given marriage in the year 1982. Thereafter, the properties allotted to the respective parties were in separate enjoyment of their respective shares. Since the defendant pleaded oral panchayat partition, it is for him to prove the said panchayat partition. There is no sufficient evidence adduced to prove the same, the trial court has come to the conclusion that the properties are ancestral properties and thereby the properties have to be divided between Govindasamy gounder and his two sons. The said Govindasamy gounder is entitled to 1/3rd share and his two sons, each are entitled to 1/3rd share. The share of the Govindasamy gounder, after his demise, has to be divided between the plaintiffs and defendant, thereby the 1st plaintiff is entitled to 5/12 share and 2 and 3 plaintiffs each are entitled to 1/12th share and the defendant is entitled to 1/12th share.

12. Being aggrieved by the said Decree and Judgment passed by the trial Court, the plaintiffs 2 and 3 have preferred the Appeal Suit. The First Appellate Court came to a conclusion that after partition, the properties are separate properties of Govindasamy gounder and thereby granted equal shares to each plaintiffs and defendant. The appellant, who is the defendant has not preferred the appeal as against the judgment and decree passed by the trial court holding that the plaintiffs are having share over the properties and there was no panchayat partition as alleged by the defendant. However, aggrieved by the quantum of the shares, the defendant has preferred the Second Appeal.

13. As far as quantum is concerned, it is admitted fact that the properties are ancestral properties of Govindasamy gounder. The trial court after holding that the properties are ancestral properties of Govindasamy gounder and no partition has been effected between the legal heirs of Govindasamy Gounder, thereby divided the properties 1/3 and the share of deceased Govindasamy Gounder was divided between four heirs and thereby granted 1/12 share to the 2nd and 3rd plaintiffs and 5/12 share to the 1st plaintiff, but failed to consider that after amendment of Hindu Succession Act, 2005, the daughter is entitled to share along with sons and thereby the properties of the Govindasamy gounder have to be divided into four, i.e., ¼ to plaintiffs 1 and 2 and ¼ to the defendant and ¼ of the share of Govindasamy gounder have to be divided into four, thereby the plaintiffs 1 and 2 and defendant are each entitled to 5/16, 3rd plaintiff is entitled to 1/16th share. Further, the First Appellate Court also failed to consider the said legal aspect and came to an erroneous conclusion that after partition, the properties are separate properties of Govindasamy. In fact, though the said Govindasamy acquired the properties through partition, once the sons born to him, the said properties are not separate properties of Govindasamy and the sons are co-parceners and by birth they have share. After amendment of Section 6 of the Hindu succession Act, 2005, the daughters are also entitled to share as co-parceners. Therefore, the findings of the First Appellate Court are perverse. During the pendency of the Second Appeal, the 3rd plaintiff died and there is no proof as to whether, she died intestate. Hence it is appropriate to leave the 1/16th share of the 3rd plaintiff and each plaintiffs 1 and 2 and the defendant are entitled to 5/16th share. The share of the 3rd plaintiff may be decided by the trial court at the time of passing Final Decree.

14. As far as Substantial Question of Law, viz., “Whether the Lower Appellate Court has misinterpreted Ex.A.11 Partition deed to hold, that, only Govinda Gounder was allotted a share of the joint family properties, and therefore, the share allotted to him became his separate property, whereas the recitals read otherwise” is concerned, the First Appellate Court came to a conclusion that the Ex.A.11, viz., Partition Deed dated 11.12.1966 was entered between the father of the plaintiffs, namely, Govindasamy Gounder, Marimuthu Gounder and others, thereby the said Govindasamy Gounder, father of the plaintiffs and the defendant was allotted the suit properties under partition deed dated 11.12.1966, i.e., which is marked as Ex.A.11, therefore, the properties allotted to Govindasamy gounder has become separate properties in which, his sons, 1st plaintiff and defendant would not get right by birth, therefore, granted share for all the legal heirs of Govindasamy Gounder. The First Appellate Court failed to consider that the said Govindasmy Gounder is entitled to property through partition deed as it was ancestral property and both the parties have admitted that properties belong to Govindasmy Gounder ancestrally, even though the said Govindasamy Gounder is entitled to partition through partition deed, it has to be treated as separate property unless a son is born to him.

15. It is admitted fact that there is no partition between the plaintiffs 1 and 2 and defendant, who are son and daughters. Though it is a separate property of the said Govindasamy gounder, after birth of his sons, the sons are entitled to property by birth as co-parcener. After Amendment of Section 6 of Hindu Succession Act, the daughter is also entitled to share by birth as co-parcener, since no partition has been effected between the parties. The said aspect has not been considered by the First Appellate Court, therefore, the findings of the First Appellate Court are not in accordance with law. Since the sons and daughter of the Govindasmy gounder are also co-parceners, the properties have to be divided into four / 4. The share of Govindasamy Gounder has to be divided into four, therefore, plaintiffs 1 and 2 and defendant, each are entitled to 5/16 share. The 3rd plaintiff, wife of Govindasamy Gounder is entitled to 1/16 share, therefore, the Judgment and Decree, passed by the First Appellate Court are modified to that effect.

In the result, the present Second Appeal is partly allowed. Consequently, connected miscellaneous petition is closed. No costs.