D.Govindarajulu v. Lakshmi Bai

For Respondent 1 : Mr.V.BaskaranJUDGMENTThis second appeal is focussed by D1, D7 (in O.S.No.4083 of 1983)and D12 and D13 (in A.S.No.268 of 2002) animadverting upon thejudgement and decree dated 19.01.2005 passed by the learnedAdditional District and Sessions Judge, Fast Track Court No.III,Chennai in A.S.No.268 of 2002 confirming the judgement and decreedated 29.04.2002 passed by the learned III Assistant Judge, CityCivil Court, Chennai in O.S.No.4083 of 1983, which is the suit forpartition. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.2. The first respondent/ plaintiff filed the suit for partitionas against the defendants. D1 entered appearance and filed thewritten statement; D2 to D4 filed the written statement separatelyand D7 also filed a separate written statement resisting the suit.The trial court framed the relevant issued based on the pleadings.3. During trial, the plaintiff examined herself as P.W.1., andEx.A1 was marked. The first defendant examined himself as DW1 alongwith one Padma DW2 and Exs.B1 to B9 were marked.4. Ultimately the trial Court decreed the suit; as against which,appeal was filed by defendants 1 and 7, for nothing but to bedismissed by the first Appellate Court confirming the judgment anddecree of the trial Court. Being disconcerted and aggrieved by thejudgment of both the Courts below, this Second Appeal has beenfiled by the defendants by setting out the substantial questionsof law in the memorandum of appeal.5. The learned counsel for the plaintiff would argue that failureto serve notice to those who remained exparte before the lower Courtas well as the Appellate Court in the Second Appeal was not proper asthey are entitled to notice. I would like to highlight that theappellant is right in not taking up notice to those parties whoremained exparte before the lower Courts as it is based on theestablished practice of this Court as well as settled law.6. My learned Predecessor framed the following substantialquestions of law for consideration:(i) Whether in a co-parcenery Hindu joint family, theplaintiff is entitled to a share as claimed ?(ii) Whether the appellants 1 and 2 have acquired theentire property by operation of Hindu Law or not? https://hcservices.ecourts.gov.in/hcservices/

7. A 'resume' of facts, which are absolutely necessary andgermane for the disposal of this appeal, would run thus:-(a) Indubitably and indisputably, incontrovertibly andunassailably, the suit property along with other propertiesoriginally belonged to one Parthasarathy Naidu, who died leavingbehind his two sons, namely, Perumal Nadu and Doraisamy Naidu;Doraisamy Naidu died in the year 1972, leaving behind his son D1-Govindarajulu Naidu and his five daughters, namely, the plaintiff andD2 to D5; during the pendency of the suit, D2 died, whereupon D8 toD12, her legal heirs were impleaded; D7 is the son of D1; D6 isnone but the grand son of the deceased Perumal Naidu, so to say, theson of Perumal Naidu's daughter.(b) The plaintiff's contention is that, as per Ex.A1-theregistered partition deed dated 07.10.1929, the said Perumal Naiduand Doraisamy Naidu got partitioned their various coparcenaryproperties and got divided their coparcenary status and in that thesuit property house herein was also divided, so to say, each wasallotted half share in the suit house; as such, they became dividedcoparceners; Perumal Naidu had three sons and they died inunmarried state; however, in that line of Perumal Naidu, out of histhree sons, Pandari happened to be the last sole survivingcoparcener, who executed the 'Will' in favour of D6. At thisjuncture, it is worthwhile to highlight that D6 obtained a letter ofadministration from this Court relating to the said Will. Theplaintiff would contend that regarding Doraisamy Naidu's line isconcerned, Doraisamy Naidu enjoyed his portion and died during theyear 1972, leaving behind his one son D1 and five daughters, namely,the plaintiff and D2 to D5. However, the plaintiff as per her owncalculation of shares, claimed 1/6th share in the half share ofDoraisamy Naidu.8. Whereas, remonstrating and refuting, denying and challenging,but accepting the relationship, D1 and D7 would contend that the saidpartition deed, Ex.A1 was not in stricto sensu, a partition deed, butonly a family arrangement, as per which, Doraisamy Naidu was expectedto pay a sum of Rs.2,400/- to Perumal Naidu towards, Perumal Naidu'shalf share in the and become a full owner of the house; however,Doraisamy Naidu did not pay that amount to Perumal Naidu; the jointstatus of co-parcenery continued; consequent upon the death ofPerumal Naidu and his three sons, the entire suit property came tothe ownership of D1 and along with him D7- his son is also entitledto his share in the suit property. However, the five daughters ofDoraisamy Naidu, including the plaintiff, are not entitled to the co-parcenary property; the letters of administration was challenged byhim before this Court and he was permitted to agitate the said Willat the appropriate forum at the appropriate stage. D6 remained ex-parte and accordingly, D1 and D7 prayed for the dismissal of the suit. https://hcservices.ecourts.gov.in/hcservices/

9. The judgement of the trial Court would evince that based onevidence, it gave a factual finding that Ex.A1 being a registeredpartition deed was acted upon and it caused division in the jointcoparcenery status of Doraisamy Naidu and Perumal Naidu; whereuponultimately, Pandari-the sole surviving coparcener, on the side ofPerumal Naidu was justified in executing the Will in favour of D6,over which, D1 and D7 cannot claim any right. The first appellateCourt also agreed with the finding.10. The plaintiff's version in the plaint is that Perumal Naiduand Doraisamy Naidu have got partitioned, as per Ex.A1, the propertyand even Doraisamy Naidu had not paid the sum of Rs.2,400/- toPerumal Naidu or his heirs, so as to acquire the share of PerumalNaidu. In fact, it is the case of D1 that Doraisamy Naidu did notpay the sum of Rs.2,400/- to Perumal Naidu or his heirs. As such, inview of the supine admission and evidence given by D1, by no stretchof imagination, Doraisamy Naidu could be held to have acquired thefull title over the suit property and Doraisamy Naidu had only hishalf share in the suit house.11. The plea of D1 that Ex.A1 is not a partition deed and it isonly a family arrangement and that there was no division ofcoparcenary status, failed to carry conviction with both the Courtsbelow, who considering the oral evidence adduced before them, arrivedat the concurrent finding that Ex.A1 was a partition deed and thereoccurred division in the coparcenary status between Doraisamy Naiduand Perumal Naidu. In fact, the evidence would display anddemonstrate that D1 was employed in Andhra Pradesh and only duringthe year 1983, he came to Chennai and came to understand that D6 wascollecting rents for his half share in the suit house.12. It is a trite proposition of law that in a partition suit theplaintiff is the defendant and the defendant is the plaintiff.However, here the D1 or D7 has not chosen to make any counter claimor a prayer in the written statement seeking the relief that thepartition deed Ex.A1 was not a partition deed, but it was only afamily arrangement and that the Will was void ab initio and notbinding, etc. However, D1 and D7 have only prayed for the dismissalof the suit and nothing more.13. The contention of D1 that D6 remained exparte and he has notchosen to press into service the Will as well as the letters ofadministration which he obtained from the Court, in my opinion, isnot a sound plea. The lower Court adverting to the evidenceavailable on record pointed out that D1 despite knowing the said Willexecuted by Pandari in favour of D6, had not chosen to challenge thesame. To the risk of repetition without being tautologus, I wouldhighlight that the plaintiff in this suit admitting the validity ofthe Will and also the consequent letters of administration obtainedby D6 and recognising the half share of D6 in the suit property, https://hcservices.ecourts.gov.in/hcservices/ prayed for her share in the remaining half share which belonged toDoraisamy Naidu and hence she was not duty bound to make any prayeradverse to the Will or letters of administration. But on the otherhand, it is D1 who disputes the Will and the letters ofadministration, but he has not despite lapse of decades togetherchosen to challenge the Will. Since the plaintiff accepted the halfshare of D6, presumably D6 has chosen to remain exparte as his shareis in tact. 14. It is a trite proposition of Hindu law that a sole survivingco-parcener could dispose of his share by Will, even anterior toSection 30 of the Hindu Succession Act, 1956 coming into vogue and itis a trite proposition of law and it is found exemplified in thefamous Treatise Mulla Hindu Law, Nineteenth Edition in page No.367 asunder:"A sole surviving coparcener could, however, bequeaththe joint family property as if it was his separateproperty."Here admittedly as per D1's version, Pandari executed the Will evenin the year 1946 and that he died during the year 1948, whereby theWill came into effect even in the year 1948. Even though thedefendant No.1 would contend in the grounds of appeal that in CMPNo.31 of 1990 of OSA No.344 of 1989 before this Court, the letters ofadministration granted in favour of D6 relating to the said Willexecuted by Pandari was challenged, yet this Court as per the orderdirected D1 to prove his property rights in the appropriateproceedings. However, quite antithetical to D1's own stand, he hasnot chosen to agitate the Will by initiating appropriate proceedingsand this fact also has been correctly considered by the trial Courtand confirmed by the appellate Court.15. The first defendant came forward with a far fetched plea asthough Ex.A1, the partition deed was not really a partition deed, butfamily arrangement and in support of his argument, there isabsolutely no iota or miniscule, shred or shard, pint-sized orscintilla of evidence. Section 91 and 92 of the Indian Evidence Actalso would as such be an embargo for D1 to contend anything contraryto the terms contained in Ex.A1. I would like to cite the followingdecision of the Hon'ble Apex Court reported in (2003) 6 SCC 595 [RoopKumar v. Mohan Thedani]. An excerpt from it would run thus:"17. It is likewise a general and most inflexible rulethat wherever written instruments are appointed, either bythe requirement of law, or by the contract of the parties,to be the repositories and memorials of truth, any otherevidence is excluded from being used either as a substitutefor such instruments, or to contradict or alter them. Thisis a matter both of principle and policy. It is of https://hcservices.ecourts.gov.in/hcservices/ principle because such instruments are in their own natureand origin, entitled to a much higher degree of credit thanparol evidence. It is of policy because it would beattended with great mischief if those instruments, uponwhich men's rights depended, were liable to be impeached byloose collateral evidence."As such D1 being the son of Doraisamy Naidu who happened to be aparty to Ex.A1 cannot contend contrary to Ex.A1. The records wouldreveal that the first defendant admitted candidly and categoricallythat he was aware of the partition deed Ex.A1 dated 07.10.1929several decades ago itself. But he has not chosen to initiate anyaction in support of his contention that consequent upon the death ofhis father Doraisamy Naidu, he along with D3 became the absoluteowners of the suit property.16. The first defendant would put forward an untenable plea asthough Ex.A1 would not bind him, on the ground that even as on thedate of emergence of Ex.A1, D1 was alive, but he was not added as oneof the parties to the partition deed Ex.A1. Such a plea by D1 istotally not contemplated under the Hindu Law. The plea based on thealleged facts that D1 was born earlier to Ex.A1 and in existence ason the date of emergence of Ex.A1 and he was not included in thepartition deed, would not in any way affect the validity of thepartition deed which emerged between the main co-parceners, viz.,Doraisamy Naidu and Perumal Naidu. It is axiomatic in Hindu law thata minor son need not be added in the partition, provided his fatherrepresents the line. The doctrine of per capita and per stirpeswould amply make the point clear. Throwing to winds the doctrine ofrepresentation, D1 went on dilating about his birth even anterior tothe emergence of Ex.A1. When the law as highlighted by me supra isto the effect that D1's father could represent his line, then it isnot necessary that Doraisamy's son D1 also should have been added asparty in the partition deed.17. Ex.A1, the registered partition deed would unambiguously andunequivocally highlight and spotlight, demonstrate and display, thatthere occurred division in co-parcenary status betweenDoraisamy Naidu and Perumal Naidu. A plain reading of the recitalswould clearly prove that they decided not to continue as co-parcenersand accordingly they also got their properties divided. An excerptfrom the said Ex.A1 would run thus:@v';fspUtUf;Fk; ,d;iwa njjpapy; Vw;gl;l ghf gphptpid gj;jpuk;vd;dbtd;why; eh';fs; ,Jtiuapy; moapy; fz;l bc&oa{y;fspy; cs;sbrhj;Jf;fis $hapz;lhf mDgtpj;Jf;bfhz;L te;J ,d;W Kjy; xUth;ghfj;jpy; ,d;bdhUtUf;F ahbjhU mf;Fk; ghj;jpaija[k; ,y;yhky; mth;mth;fSf;F te;j ghfj;ij mth; mth;fs; jhdhjp tpdpatpf;fphpa';fSf;F https://hcservices.ecourts.gov.in/hcservices/ chpj;jha; mDgtpf;f ntz;Lbkd;W /////////////////////////,e;j ghfgphptpidapy; fz;l brhj;Jf;fis ,e;jgj;jpuj;jpy; brhy;ypa gpufhuk; bgUkhas; eha[Ltpw;F te;j ghjp ghfj;ijmtUk; Jiurhkp eha[Ltpw;Fte;j ghjp ghfj;ij mtUk ;xUth;ghfj;jpy; ,d;bdhUtUf;F ahbjhU ghj;jpaija[k; !;jyje;jp <Lk;mf;Fk; ,y;yhky; mth; mth;fSf;F te;j ghfj;ij mth; mth;fs; xj;jpjhdhjp tpdnahf tpf;fpua';fSf;F chpj;jha; g[j;jpu bgsj;jpu ghuk;giuaha;Mz;L mDgtpj;Jf;bfhs;s ntz;oaJ/ ,g;gof;F Jiurhkp eha[LbgUkhs; eha[L Mfpa eh';fpspUtUk; Vnfhgpj;J v';fs; kndhuh$papy;rk;kjpj;J vGjpf;bfhz;l ghf gphptpid gj;jpuk;////@18. A plain reading of the above extract including the wholeEx.A1 would leave no doubt in the mind of any one that there emergedpartition between Doraisamy Naidu and Perumal Naidu and by no stretchof imagination it could be termed as a mere temporary familyarrangement and not a partition. As such, both the Courts belowcorrectly held that there occurred division in co-parcenary status,and resulting in division in the properties concerned.19. It is therefore crystal clear that the descendants ofDoraisamy Naidu cannot claim any right or interfere with the right ofPerumal Naidu's descendants and the alienee. Accordingly PerumalNaidu got his shares under Ex.A1 and enjoyed it and all his threesons died in unmarried state and out of them Pandari was the lastsurviving co-parcener in the line of Perumal Naidu. These are alladmitted facts by D1 himself and in such a case, Pandari as the solesurviving co-parcener on the line of Perumal Naidu executed the Willin favour of D6, which cannot be found fault with by D1 by anystretch of imagination and as such, both the Courts below au faitwith law and au courant with facts rendered their finding on thataspect. As such, it is crystal clear that D1 and D7 cannot be heardto contend that the Will executed by Pandari in favour of D6 was notvalid and consequently the plea of D1 and D7 that the half share ofPerumal Naidu also came to the share of Doraisamy Naidu is factuallybaseless and legally untenable. As such, excluding the half share inthe suit property, the remaining half share alone could be claimed byDoraisamy Naidu and his descendants. D.W.1 in his chief examination itself stated as under:@ehd; 1950?y; Tl;Lwt[ Jiw gzpapy; nrh;e;J Me;jpu khepyj;jpy;gzpahw;wp 1983?y; Xa;t[ bgw;nwd;/ Xa;t[ bgw;w gpwF brd;id te;jnghJ 6?tJ vjph;thjp tHf;fpil brhj;jpy; ghjp thlif bgw;WtUtJbjhpe;J bfhz;nld; mjw;F ehd; Ml;nrgiz bjhptpj;njd;/@ https://hcservices.ecourts.gov.in/hcservices/ (emphasis supplied)The candid and categorical admission by D1, as aforesaid, wouldtotally torpedo his plea challenging Ex.A1 the partition deed and theWill and D1 and D7's plea claiming the entire suit property. D1'saforesaid admission would clinchingly establish that consequent uponEx.A1 the partition effected there was actually division in statusbetween Doraisamy Naidu and Perumal Naidu and as aforesaid, the lastsurviving co-parcener Pandari executed the Will in favour of D6 andafter obtaining letters of administration from this Court, D6 hasbeen in actual enjoyment of his half share by collecting rent fromthe half portion of the suit property. As such, D1 by his owndeposition clearly uttered out the real fact as set out supra and itis therefore crystal clear that relating to the half share of PerumalNaidu which ultimately reached the hands of D6 cannot be questioned.20. D1 himself also candidly admitted that Doraisamy Naidu hadnot paid the half value of the suit house amounting to Rs.2,400/- soas to acquire full ownership over the suit property. A fortiori,Doraisamy Naidu and his descendants were entitled to only half sharein the suit property.21. The contention of D1 and D6 that consequent upon the death ofDoraisamy Naidu, they have become absolute owners is totallyuntenable in view of the settled legal position as contended in thethen existed Section 6 of the Hindu Succession Act. Doraisamy Naiduadmittedly died in the year 1972, long after the commencement of theHindu Succession Act. As on the date of his death during the year1972, the then existed Section 6 of the Hindu Succession Act wouldcontemplate that if a co-parcener dies leaving behind a female heiras contemplated under class I of the Hindu Succession Act, theconcept of survivorship would not prevail, but only the share of thedeceased co-parcener would devolve upon his legal heirs under theHindu Succession Act. 22. The first defendant, who appeared as the party-in-person,and who being an Advocate by profession, would submit that the claimof the plaintiff is not tenable as consequent upon the death of hisfather Doraisamy Naidu, his share devolved upon D1 as well as D1'sson and the daughters are having no right over it. According to him,as per Tamil Nadu Hindu Succession (Amendment) Act, (Act 1 of 1990)only unmarried daughters could claim share as co-parceners and notthe plaintiff who got married long before 25.03.1989, the date onwhich the Act came into force and that in the co-parcenery property,the plaintiff, being the married daughter of Doraisamy Naidu ishaving no right to claim any share. To say the least, such anargument as put forth by D1 is totally untenable and it is quiteagainst the trite proposition of Hindu Law and antithetical to theprovisions of law detailed and discussed supra. https://hcservices.ecourts.gov.in/hcservices/

23. The then existed Section 6 of the Hindu Succession Act, isinterpreted in (2007) 1 MLJ 799 [Sheela Devi v. Lal Chand] and it isextracted here under for ready reference:"6. Devolution of interest in coparcenary property:- When a male Hindu dies after the commencement of thisAct, having at the time of his death an interest in aMitakshara coparcenary property, his interest in theproperty shall devolve by survivorship upon the survivingmembers of the coparcenary and not in accordance with thisAct:Provided that, if the deceased had left him survivinga female relative specified in Class I of the Schedule or amale relative specified in that class who claims throughsuch female relative, the interest of the deceased in theMitakshara co-parcenary property shall devolve bytestamentary or intestate succession, as the case may be,under this Act and not by survivorship."(emphasis supplied) Explanation 1:- For the purposes of this Section, theinterest of a Hindu Mitakshara coparcener shall be deemed tobe share in the property that would have been allotted tohim if a partition of the property had taken placeimmediately before his death, irrespective of whether he wasentitled to claim partition or not.Explanation 2:- Nothing contained in the proviso tothis Section shall be construed as enabling a person who hasseparated himself from the coparcenary before the death ofthe deceased or any of his heirs to claim on intestacy, ashare in the interest referred to therein."A bare perusal of the said provisions would clearlyshow that where the deceased had left him surviving a femalerelative specified in Class I of the Schedule, his interestin the Mitakshara coparcenary property shall devolve byintestate succession and not by survivorship."24. I would like to extract here under an excerpt from thefamous treatise N.R.Raghavachariar's Hindu Law (Principles andPrecedents) Eighth Edition 1987 relating to the scope of Section 6 ofthe Hindu Succession Act."7. Proviso: Exception to rule of survivorship in theMitakshara coparcenary :- This proviso says that so longas there is a female relative specified in clause (1) ofthe Schedule or a male relative specified in that class whoclaims through such female relative, the interest of the https://hcservices.ecourts.gov.in/hcservices/ deceased in the Mitakshara coparcenary property shalldevolve by testamentary or intestate succession as the casemay be under this Act and not by survivorship. Under theMitakshara coparcanery as it obtained prior to the Act, noWill left by a coparcener would be valid, the reason beingthat as between testamentary devolution and devolution bysurvivorship, the latter took precedence barring theoperation of the testamentary disposition. This provisoprovides that if any female relative or a male relativeclaiming through the female relative as specified in clause(1) of the Schedule survives the deceased, then thedevolution is under this Act, whether the devolution istestamentary or by intestate succession. The words, "suchfemale relative" found in the proviso to the section refersto a female relative who comes in the 1st class but who isdead but through whom the male relative claims (RanganathanChettiar v. Annamalai Mudaliar, 80 L.W.258: (1967) 1 MLJ389; I.L.R.(1968)1 Mad 685: 1968 Mad.65)".(emphasis supplied)25. An excerpt from the famous Treatise Mayne's Hindu Law andUsage 16th Edition relating to Section 6 of the Hindu Succession Actwould run thus:Position prior to 9.9.2005"2. Scope:- Prior to the commencement of this Act,codifying the rules of succession, the concept of a Hindufamily under Mitakshara school of law was that it wasordinarily joint not only in estate but in food andworship. Coparcenary property, in contra-distinction withthe absolute or separate property of an individualcoparcener, devolved upon the surviving coparceners in thefamily, according to the rule of a devolution bysurvivorship. Thus the right of a male Hindu coparcener bybirth was recognised and approved under the Hindu Law.With a view to confer certain rights on the female membersof the joint family and to prefer certain near bandhus, orcognates to distant agnates in the matter of succession tothe estate of a Hindu male dying without male issue, theHindu Law of Inheritance (Amendment) Act, 1929 was passedand the order of intestate succession under Mitakshara wasalerted by including a son's daughter, daughter's daughter,sister, and sister's son, in that order of succession,after the paternal grandfather and before the paternaluncle in the list of heirs. As a result there was alimited restriction on the rule of survivorship. The rightof the coparcener under the rule of survivorship wasfurther abridged, by conferring greater rights on women,under the Hindu Women's Rights to Property Act, 1937, which https://hcservices.ecourts.gov.in/hcservices/ brought about revolutionary changes in the Hindu Law of allschools, and affected not only the law of coparcenary butalso the law of partition, alienation of property,inheritance and adoption. The Act of 1937 conferred on thewidow, the widow of a predeceased son and the widow of apredeceased son of a predeceased son, a right ofinheritance to the deceased's property even when thedeceased left male issue and were allowed to claimpartition, though they would take only a limited estate inthe property of the deceased.The present section deals with the devolution of theinterest of a male Hindu in coparcenary property and whilerecognising the rule of devolution by survivorship amongthe members of the coparcenary, makes further exceptions tothe rule in the proviso. According to the proviso, if thedeceased has left him surviving a female relative specifiedin that Class who claims through such female relative, theinterest of the deceased in the Mitakshara coparcenaryproperty shall devolve by testamentary or intestatesuccession under this Act and not by survivorship. Furtherunder Section 30 a coparcener may make a testamentarydisposition of his undivided interest in joint familyproperty. Thus the rule of survivorship comes intooperation only: (i) where the deceased does not leave himsurviving a female relative specified in Class I, or a malerelative specified in Class I, who claims through suchfemale relative in Class I, (ii) when the deceased has notmade a testamentary disposition of his undivided share inthe coparcenary property.As the rule of survivorship under this section operatesin respect of the interest of the deceased it becomesnecessary to ascertain the share of the deceased coparcenerin the Hindu Mitakshara coparcenary property. As to whatconstitutes Hindu Mitakshara coparcenary property asdistinguished from separate property and the incidents,thereof, see Chapter 12 (paragraphs 292, 293, 294, 298,301,310 and 312). The present section in its Explanation Istates that the interest of a Hindu Mitakshara coparcenershall be deemed to be the share in the property that wouldhave been allotted to him if a partition of that propertyhad taken place immediately before his death. Thus anotional partition of coparcenary property as if theproperty was partitioned immediately before the death o thesuccession and not by survivorship. While proceeding onthe footing of a notional partition in a given case, oneshould not take into consideration a person who hadseparated himself from the coparcenary before the death ofthe deceased or the claim of any heirs of such a person as https://hcservices.ecourts.gov.in/hcservices/ stated in Explanation 2."An excerpt from the Apex's Court decision reported in J.T. 1993(5) SC197 [Pavitri Devi and another v. Darbari Singh and others] would runthus:"13. However, she is right in her contention that sheis a successor in interest under Order 22 Rule 3 of CPC asis seen by operation of the proviso to section 6(1) of theAct and explanation I of which reads thus:"Explanation 1.- For the purpose of this section, theinterest of a Hindu Mitakshara coparcener shall bedeemed to be the share in the property that would havebeen allotted to him if a partition of the property hadtaken place immediately before his death, irrespectiveof whether he was entitled to claim partition or not."A reading of S.6 thereof clearly provides that when amale Hindu dies, after the commencement of the Act,having at the time of his death an interest in aMitakshara coparcenary property, his interest byoperation of the proviso devolves on his survivingmembers of the relatives specified in Class I of theSchedule. The interest of the deceased in theMitakshara coparcenary property shall devolve bytestamentary or intestate succession, as the case maybe, under the Act and not by survivorship. In otherwords interposition of a female class I heir in thefamily of the deceased coparcener interjects theoperation of succession to coparcenary property bysurvivorship and opens up the intestate or testamentarysuccession under the Act among the heirs in the orderspecified in the Schedule. For the purpose of thissection the interest of a Hindu coparcener shall bedeemed to be the share in the property that would havebeen allotted to him if a partition of the property hadtaken place immediately before his death, irrespectiveof whether he was entitled to claim partition or not.It is, therefore, statutorily assumed that the partitionhad, in fact, taken place between the deceased and theother coparceners immediately before his death byfiction of law. The inevitable corollary being thatPavitri Devi, female class I heir as per schedule willget her share in the interest which the deceased had inthe coparcenary property at the time of his death at anotional partition."26. A bare perusal of the above excerpts would leave no doubtthat during the life time of Doraisamy Naidu, after he separated https://hcservices.ecourts.gov.in/hcservices/ himself from Perumal Naidu, his half share in the suit propertybelonged to Doraisamy Naidu and his son D1 in equal moiety, so tosay, each one was entitled to half share in the half share. In otherwords, Doraisamy and D1 had 1/4th share each in the entire suitproperty. D1's son D6 could claim under the principle of per stirpesor doctrine of representation only half share in the 1/4th share ofD1. The 1/4th share of Doraisamy Naidu on his death in 1972 devolvedupon D1 his son and his five daughters, viz., the plaintiff, D2, D3,D4 and D5. In fact, the children of Doraisamy Naidu became entitledto 1/6th share in the 1/4th share of Doraisamy Naidu in the entiresuit property. Without understanding this method of division, boththe Courts below committed error in holding as though the plaintiffis entitled to 1/6th share in the half share which belonged toDoraisamy Naidu.27. Totally ignoring and throwing to winds the aforesaid salientand relevant provisions of law in a distorted manner, on the side ofD1 and D7 the case was projected and consequently the case laws citedon their side are not relevant, as those case laws were picked outand cited in support of their wrong pleas.28. In the result, the substantial question of law No.1 isanswered to the effect that the plaintiff is not entitled to 1/6thshare in the half share of the suit property, but she is entitled to1/6th share in the 1/4th share of deceased Doraisamy Naidu in thesuit property. Both the Courts below fell into error in allottingshares of the respective parties and hence this Court details hereunder the respective shares of the parties:D6:12/24th shareD1:4/24th shareD7:3/24th sharePlaintiff "1/24th shareDeceased D2(D8 to D12 her legal heirs):1/24th shareD3:1/24th shareD4:1/24th shareD5:1/24th share29. In view of the discussion supra, the second substantialquestion of law is decided to the effect that the plea of D1 and D7are untenable as they claimed the entire property to the exclusion ofall other parties to the suit.30. Accordingly the judgment and decree of both the Courts belowshall stand modified as above. The preliminary decree shall followaccordingly. Both the parties shall bear the respective costs. https://hcservices.ecourts.gov.in/hcservices/ In the result, this Second Appeal is partly allowed as above.Consequently, connected miscellaneous petition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vj2/msk/gmsTo1. The Additional District and Sessions Judge Fast Track Court No.III, Chennai 2. The III Assistant Judge, City Civil Court, Chennai3. The Record Keeper, V.R.Section, High Court, Madras-104.+ 2 CC To Mr.D.Govindarajulu, Party in Person, SR NO.13403+ 1 CC To Mr.P.Chandrasekaran, Advocate SR NO.13389+ 1 CC To Mr.V.Bhaskaran, Advocate SR NO.13404 Judgment inS.A.No.91 of 2006 SSN {CO}TP/14.5.2009.