NACHAYAL Vs. PONGIANNAN

JUDGEMENT

(1.) THE Appeal is preferred against the judgment and decree dated 23. 11. 1994 rendered in O. S. No. 225 of 1990 on the file of Principal Subordinate Judge, Erode. The plaintiff in the suit is the appellant herein.

(2.) THE plaintiff filed the suit seeking for a decree directing the division of the suit properties into 27 equal shares by metes and bounds and allot 10 such shares to the plaintiff and put her in separate possession thereof. The case of the plaintiff is that her father palani Gounder had two wives, namely, Thangammal and kuppayal, the second defendant in the suit and the plaintiff and defendants 5 to 7 are the daughters of first wife thangammal while the defendants 8 to 12 are the daughters and sons of the predeceased daughter of Thangammal by name mottaiakkal alias Karuppathal and the first defendant is the son of Palani Gounder through his second wife Kuppayal and the defendants 3 and 4 are the daughters of Palani Gounder through Kuppayal. According to the plaintiff, the entire suit properties were the joint family properties of Palani gounder, the first defendant and the plaintiff, who is an unmarried daughter of Palani Gounder and Palani Gounder died on 27. 3. 1975 and the entire suit properties remain undivided by metes and bounds and the plaintiff, who is an unmarried daughter of late Palani Gounder, became a co-parcener and member of the joint family as per the provisions of Hindu succession (Tamil Nadu Amendment) Act 1989 and was entitled to 1/3 share in the suit properties, similarly, her father palani Gounder and the first defendant are entitled to 1/3 share each and after the death of Palani Gounder, his 1/3 share would devolve upon the plaintiff, defendants 1 to 7 and defendants 8 to 12 jointly in equal moities and the plaintiff would get 10/27 shares, the first defendant would get 10/27 shares and defendants 2 to 7 would get 1/27 share each and defendants 8 to 12 would jointly get 1/27 share in the suit properties. It is further stated by the plaintiff that the first defendant has filed another suit for declaration and other reliefs in O. S. No. 636 of 1989 on the basis of alleged Will executed by late Palani Gounder on 16. 6. 1966. According to the plaintiff, that Will is not true, valid and genuine and even assuming it to be true, it would not bind the plaintiff's 1/3 share and hence the suit.

(3.) THE first defendant filed an elaborate written statement stating that he and his father late Palani Gounder were members of Hindu joint family and Palani Gounder and his four brothers divided their ancestral joint family properties under registered partition deed dated 9. 9. 1921 and Palani Gounder was allotted a share and he also purchased some lands from the income of ancestral properties and all the properties were treated as joint family properties and Palani gounder celebrated the marriage of his six daughters by giving customary seers and jewels and he also executed a will on 16. 6. 1966. It is further stated by the first defendant that Palani Gounder died on 27. 3. 1975 and after his death, Thangammal, senior wife and mother of the plaintiff took possession of the properties given to her under the Will and she was residing in one of the houses and enjoying the income from the landed properties till she died on 1. 11. 1989 and afterwards, the first defendant became entitled to the properties absolutely. According to the first defendant, the right claimed by the plaintiff under the Tamil Nadu Amendment Act 1/1990 is misconceived since there was no coparcenary on the date when the Tamil nadu Amendment Act came into effect. The first defendant has further stated that on the death of palani Gounder, the coparcenary consisting of himself and his only son came to an end as per Section 6 of the Hindu succession Act and the partition took effect under explanation to Section 6 and there was no joint family subsequently since by operation of the statute, a complete partition took effect on the death of Palani Gounder. It is further stated by the first defendant that the Tamil nadu Amendment Act 1/1990 is prospective in nature and to claim the benefit of the same, there should be a coparcenary consisting of father/kartha, son and unmarried daughter and that is not the case herein and hence the plaintiff is not entitled to the benefit of the Tamil Nadu Amendment Act 1/1990. The first defendant has further stated that the plaintiff along with others has filed another suit in o. S. No. 636 of 1989 for declaration and injunction and afterwards, the present suit came to be filed and hence it is barred.