(Prayer: Original Side Appeal is filed under Order XXXVI Rule (1) of O.S.Rules read with Clause 15 of Letters Patent to set aside the Decree and Judgment dated 25.02.2025 passed in C.S. No. 639 of 2017 (Original Side) on the file of this Court.)

P. Velmurugan, J.

1. This appeal has been preferred against the judgment and decree dated 25.02.2025 passed in C.S.No.639 of 2017.

2. The appellants are the plaintiffs who have filed a suit for partition against the respondents / defendants. The appellants are the daughters of the second respondent and the granddaughters of the first respondent. The first defendant died on 26.10.2024 and her sole legal heir, the second respondent, is already on record. The suit filed by the appellants / plaintiffs was dismissed by the learned Single Judge on 25.02.2025. Aggrieved over the same, the present appeal has been preferred by the appellants / plaintiffs.

3. The facts pleaded by the plaintiffs in the plaint in C.S.No.639 of 2017 are as follows:

The first defendant is the paternal grandmother and the second defendant is the father of the plaintiffs. The property bearing No.9-A, Dr.Gurusamy Mudaliar Road, Chetpet, Chennai – 600 031 now bearing No.11/29, Dr.Guruswamy Mudaliar Road, Chetpet, Chennai – 600 031 which is Item No.1 of the suit schedule property was an ancestral / joint family property at the hands of Dr.M.R.Guruswamy Mudaliar, who is the grandfather of the second defendant and the great grandfather of the plaintiffs. After the death of Dr.M.R.Guruswamy Mudaliar, the property vested in the hands of his son G.Viswanathan, who is the father of the second defendant and grandfather of the plaintiffs. While G.Viswanathan was alive as the senior male coparcener of the suit property, he was controlling the suit property for himself and on behalf of his son, the second defendant, till the year 1972.

                     3.1 On 17.06.1972, G.Viswanathan entered into a registered deed of partition with the second defendant in Doc.No.399/1972. By way of the said partition deed, the coparcenary property was divided and Item No.1 of the suit property was allotted to the second defendant along with two other properties viz., Door Nos.12 and 13, Dr.Guruswamy Mudaliar Road, Chetpet, Chennai – 600 031 and the second defendant took the share allotted to him as Karta by holding it both himself and on behalf of the plaintiffs who are also coparceners in view of the Amendment Act of 2005 to the Hindu Succession Act, 1956 vide Act 39 of 2005. The properties in No.12 and 13, Dr.Guruswamy Mudaliar Road, Chetpet, Chennai were sold even prior to the birth of the plaintiffs / commencement of the Amendment Act and hence such alienations will bind the plaintiffs also.

                     3.2 The second defendant has been controlling and enjoying the suit property as a Karta of his minor Hindu Undivided Family (HUF) consisting of himself and the plaintiffs. As the plaintiffs are in joint and constructive possession of Item No.1 of the suit along with the second defendant, they are entitled to 1/3rd share each as coparceners.

                     3.3 A portion of the larger property has been set apart and mentioned as Schedule ‘C’ in the partition deed dated 17.06.1972 and it consists of the memorial erected to perpetuate the memory of deceased Dr.M.R.Guruswamy Mudaliar which is now set as Item No.2 of the suit schedule property. During the lifetime of G.Viswanathan, the first defendant’s husband, poojas were conducted regularly in the memorial. After the demise of G.Viswanathan, neither the first defendant nor the second defendant have maintained the memorial and poojas were not performed in the said memorial. Suit ‘C’ schedule property forms a part of the undivided joint family property and since the plaintiffs are in joint and constructive possession of Item No.2 of the suit property also, they are entitled to 1/6th share each i.e. 1/3rd jointly.

                     3.4 As the second defendant now stands as Karta for the joint family property, the plaintiffs, as coparceners, are entitled to a share in the property and the defendants are bound to accede to the request of the plaintiffs for partition. Despite several requests were made to the defendants to effect partition of the undivided joint family property, the defendants have been avoiding the same. Hence, the plaintiffs filed this suit seeking the relief of declaration declaring the plaintiff’s 2/3rd share in Item No.1 and 1/3rd share in Item No.2 of the schedule mentioned property.

4. The averments made in the written statement filed by the defendants 1 and 2 in brief:

The defendants admit their relationship with the plaintiffs. The property bearing No.11/29, Dr.Guruswamy Mudaliar Road, Chetpet, Chennai – 600 031 which is Item No.1 of the suit schedule property, is not an ancestral / joint Hindu family property. It is the absolute property of the second defendant having obtained by partition between himself and his father Late G.Viswanathan by a partition deed dated 17.06.1972 and every since the partition, the second defendant is in possession and enjoyment of this property absolutely. When G.Viswanathan was alive, he was controlling the suit property as the senior male coparcener of the suit property for himself and on behalf of the second defendant. The defendant’s family was never a joint family holding the properties as coparcenary joint Hindu property. The properties were held by the said G.Viswanathan as the absolute owner and not as Karta of a coparcenary joint Hindu family. It is admitted that the second defendant and his father G.Viswanathan partially partitioned the properties by a deed of partition dated 17.06.1972 in Doc.No.399 of 1972. The properties divided between the second defendant and his father Late G.Viswanathan was the absolute property of G.Viswanathan and ever since the partition the second defendant became the absolute owner of the properties allotted to his share and he is in absolute possession and enjoyment of the said property since 1972. The properties divided between the father and son were not coparcenary properties. The second defendant did not take his share as Karta of divided portions for himself or on behalf of the plaintiffs. The plaintiffs were not even born at the time of partition i.e. 17.06.1972 and hence the question of second defendant taking his share as Karta of the plaintiffs does not arise.

                     4.1 The defendant’s family is not a Hindu undivided joint family but it is a nuclear family. The second defendant has been in possession and enjoyment of his properties as its absolute owner and not as a Karta of his smaller / minor Hindu undivided family. The plaintiffs are not coparceners and are not entitled to any share as coparceners. As alleged by the plaintiffs, they were never in joint or constructive possession of the Item No.1 of the suit property.

                     4.2 As regards Item No.2 (‘C’ schedule property), it is a portion of land in No.11/29 (Old No.9-A) and a memorial was erected to perpetuate the memory of the second defendant’s paternal grandfather Late Dr.M.R.Guruswamy Mudaliar and the defendants have been maintaining the memorial and performing poojas. After the death of second defendant’s father G.Viswanathan, the defendants have not maintained the memorial and conducted poojas. The portion of land in No.11/29 (Old No.9-A) is the absolute property of late G.Viswanathan and after his death, it devolved upon his wife, the first defendant and his son, the second defendant and they are in possession and enjoyment as its absolute owners. The property marked as ‘C’ Schedule and shown as Item No.2 of the suit schedule property, was the absolute property of Late G.Viswanathan and is not an undivided joint Hindu family property and the plaintiff has no right or interest over the same.

                     4.3 The plaintiffs were never in possession of properties mentioned in Item Nos.1 and 2 of the schedule either actually or constructively and hence they have no right whatsoever to seek partition of the absolute property of the defendants. The second defendant is not a Karta of an undivided joint Hindu family and the plaintiffs are not coparceners and even the properties are not coparcenary properties. Since the suit properties are the absolute properties of the defendants, the plaintiffs did not ask for partition and did not claim any share at any point of time either orally or in writing.

                     4.4 The claim of the defendants is that Item No.1 of the suit schedule property is the absolute property of the second defendant and Item No.2 of the suit schedule property is the absolute property of the defendants 1 and 2. Hence there is no cause of action for this suit.

5. Based on the above pleadings, the learned Single Judge conducted trial and framed the following issues:

                     “(i) Whether the plaintiffs are entitled to 2/3rd share in Item Nos.1 and 2 of the suit schedule mentioned properties ?

                     (ii) Whether the properties obtained by the second defendantin the partial partition dated 17.06.1972 is, his absolute property ?

                     (iii) Are not the properties allotted to the share of the second defendant’s father are ancestral properties in the hands of the second defendant ?

                     (iv) Whether the plaintiffs are in joint and constructive possession of Item Nos.1 and 2 of suit schedule property ?

                     (v) To what other reliefs the parties are entitled ?”

6. To substantiate their claim, on the side of the plaintiffs, P.W.1 was examined and Exs.P1 to P3 were marked. On the side of the defendants, D.W.1 was examined and no documents were marked.

7. After considering the pleadings and the evidences on record, the learned Single Judge held the defendants have not produced any oral and documentary evidence to substantiate that they are in possession and enjoyment of the suit schedule property and dismissed the suit. Against the said judgment, the present appeal has been preferred.

8. The learned Senior Counsel for the appellants / plaintiffs would submit that the appellants are the daughters of the respondent and granddaughters of the first defendant. The first defendant died on 26.10.2024 leaving behind the second respondent / second defendant as a sole legal heir. Since the appellants are the daughters of the respondent, they filed a suit for partition. The learned Single Judge failed to consider the fact that the subject properties belongs to Hindu undivided joint family consisting of the appellants and the respondent and the same was under the control and enjoyment of the respondent. The appellants are in joint and constructive possession of Item No.1 of the suit schedule. Hence, the appellants are entitled to 2/3rd share in Item No.1 of the suit schedule and 1/3rd share in Item No.2 of the suit schedule.

                     8.1 The learned Single Judge failed to consider the document Ex.P1- registered partition deed dated 17.06.1972. Even in Ex.P1 the recitals clearly shows that the suit property is continued to be a Hindu joint family property. Though at the time of execution of Ex.P1 – partition deed dated 17.06.1972 the appellants were not born, from the moment they born, they become the coparcenars in view of the enforcement of Central Amendment Act, 2005 and State Amendment Act, 1989. As the suit property continues to be a Hindu joint family property till the enforcement of Central Amendment Act, 2005 and State Amendment Act, 1989, the appellants are entitled to their share in the suit property. However, the conclusion of the learned Single Judge that, since the suit property was partitioned between the first defendant and the respondent / second defendant, it became the absolute property of the respondent and, therefore, the appellants are not entitled to the share claimed by them during the lifetime of the respondent, is contrary to the settled proposition of law. The learned Single Judge failed to consider the subsequent development in the statute and erroneously dismissed the suit. Hence, the order of the learned Single Judge has to be set aside.

9. The learned Senior Counsel for the respondent / second defendant would submit that the property was already divided between the first defendant and the respondent / second defendant and it seized to be a joint family property and through the partition deed dated 17.06.1972, the suit properties are the absolute properties of the respondent. Therefore, during the lifetime of the respondent, the appellants are not entitled for any share in the suit properties. After the partition, the respondent was never been the Karta of the family and the appellants were never in possession of the suit properties. There is no constructive possession by the appellants. Even prior to the birth of the appellants, the properties were divided and therefore, the character of the joint family property are not ancestral property and therefore, the appellants are not entitled to any share in the suit schedule properties as claimed by them. The learned Single Judge has rightly considered the facts and circumstances of the case and dismissed the suit. There is no merits in the appeal and hence the same is liable to be dismissed.

9.2 In support of his contention, the learned Senior Counsel for the respondent relied on the following judgments of the Hon’ble Supreme Court:

                     (i) Uttam Vs. Saubhag Singh and others reported in (2016) 4 SCC 68 ;

                     (ii) Revanasiddappa and another Vs. Mallikarjun and others reported in (2023) 10 SCC 1.

10. We have perused the materials available on records.

11. The specific case of the appellants is that the suit properties belong to a Hindu undivided joint family consisting of the appellants and the respondent and hence the appellants, as coparcenars, are entitled to 2/3rd share in Item No.1 of the suit schedule property and 1/3rd share in Item No.2 of the suit schedule property.

The specific case of the respondent is that the suit properties are his absolute property and hence the appellants are not entitled to any share as claimed by them.

12. The points for consideration in this appeal are follows:

                     (i) Whether the suit schedule properties in Item Nos.1 and 2 are the Hindu Joint Family Properties or the absolute properties of the respondent?

                     (ii) Whether the judgment and decree passed by the learned Single Judge is liable to be interfered with?

13. Admittedly the appellants are the daughters of the respondent and the granddaughters of the first defendant. The respondent belongs to a Hindu Undivided Joint Family. Admittedly, they entered into a partial partition through a registered deed dated 17.06.1972 which is marked as Ex.P1. A recital of Ex.P1 clearly shows that the suit properties only a Hindu Undivided Family property and continued to be joint family property. No material has been produced to show that the suit properties are the absolute properties of the respondent.

14. Admittedly, the appellants were not born on the date of execution of the partition deed dated 17.06.1972 (Ex.P1) and they were not the coparcenars at the time of execution of the partition deed dated 17.06.1972. However, after the enforcement of the Tamil Nadu State Amendment Act, 1989, the daughters would become coparceners. According to the State Amendment Act, 1989, there were two conditions for disqualification: (i) the property must have been partitioned prior to the commencement of the said Act; or (ii) the daughters must have been married prior to the commencement of the said Act. If the daughters were not married prior to the commencement of the Act and the property continued to remain as Joint Family Property, the daughters would be treated as coparceners under the State Amendment. Once the Central Amendment Act, 2005 came into force, there was no disqualification based on the date of marriage of the daughters. The daughters would become a coparcener by birth, provided that the property remained undivided. If the property was not divided or partitioned, upon the Central Act coming into force, the daughter, as a coparcener, would be entitled to a share in the property on par with the sons. Admittedly in this case there is no son and both the appellants are the daughters of the second respondent.

15. A careful reading of the Ex.P1 – partition deed dated 17.06.1972 clearly indicates that it is only a joint family property. It is a settled proposition that the character of any Joint Family Property does not change with the severance of the status of the Joint Family, and the Joint Family Property continues to retain its Joint Family character so long as the Joint Family Property is in existence and has not been partitioned among the coparceners. By a unilateral act, it is not open to any member of the Joint Family to convert any Joint Family Property into his personal property. However, in the present case, there are no materials to show that after execution of Ex.P1 – partition deed dated 17.06.1972, there was partition of the suit properties. On the date of the execution of the partition deed, the appellants were not born. Though the appellants are not coparcenars at the time of their birth, since the suit property continued to be a joint family property, till the enforcement of State Amendment Act, 1989 and Central Amendment Act, 2005, the appellants have become coparcenars by birth and therefore, they are entitled for their share in the suit schedule properties as coparcenars.

16. The recitals of Ex.P1 – partition deed dated 17.06.1972 clearly says that it is only a partial partition and the suit property remains to be a joint family property. Till the Central Amendment Act, 2005 and State Amendment Act, 1989 comes into force, there was no partition between the coparcenars. Therefore, the character of the joint family property continues till the filing of the suit. Thus, we come to a conclusion that the suit schedule properties are Hindu Joint Family Property and not the absolute property of the respondent / second defendant. Thus Point No.1 is answered accordingly.

17. Since the property is a Hindu Joint Family Property and not the absolute property of the second respondent and after the enforcement of Central Amendment Act, 2005 and State Amendment Act, 1989, the appellants have become the coparcenars by birth, they are entitled to their share as coparcenar. Therefore, the judgment passed by the learned Single Judge is liable to be interfered. Accordingly, Point No.2 is answered.

18. In view of the above observations, we are of the view that the appellants are entitled to a preliminary decree by declaring that they are entitled to 2/3rd share in Item No.1 and 2/6th (1/3rd) share in Item No.2 of the schedule mentioned property.

19. As regards passing of final decree, this Court in Govindaraj Vs. Thangaiyan and others reported in 2022(4)TNLJ 395, has reiterated the decision of the Hon’ble Supreme Court in Kattukandi Edathil Krishnan and another Vs.Kattukandi Edathil Valsan and others reported in 2022 Live Law (SC) 549, wherein it is held as under:

                     ''33.We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.

                     34. We direct the Registry of this Court to forward a copy of this judgment to the Registrar Generals of all the High Courts who in turn are directed to circulate the directions contained in paragraph ‘33’ of this judgment to the concerned Trial Courts in their respective States.''

20. As per the above decision of the Hon’ble Supreme Court, a party need not file a final decree application separately. The Court itself can suo motu initiate final decree proceeding after passing a preliminary decree. Therefore, the learned Single Judge is directed to initiate suo motu final decree proceedings and pass a final decree in this case as the suit is pending from the year 2017. All the final decree proceedings shall be completed within a period of six months from the date of its initiation.

21. In result, this Original Side Appeal is allowed. The judgment and decree dated 25.02.2025 passed in C.S.No.639 of 2017 on the file of this Court, is hereby set aside. Consequently, connected miscellaneous petition is closed. Considering the facts and circumstances of the case and the relationship of the parties, there is no order as to costs.