Partition between father and his brothers - Share allotted to father in ancestral property - Father died intestate in 1965 - property devolved under section 8 - daughters entitled to equal share - Sale made by brother exceeding his share not binding on daughters - property devolved under section 8, limitation not applicable for filing suit for partition.

Citation 

2023 (3) MWN (Civil) 837 (Mad)

2023(6) CTC 755

IN THE HIGH COURT OF MADRAS

R. Subramanian & N. Senthilkumar, 13.

A.S. No.562 of 2017, CM.P. No. 18764 of 2017

November 21, 2023

K. Kailasamoorthy...Appellant

....Vs...

N. Indiradevi and others...Respondent

HINDU SUCCESSION ACT, 1956 (30 of 1956), Section 6 Suit for Partition filed in 2015 resisting daim, while other Sister sailing with Plaintiff Sister seeking Partition of 1/3rd share against her Brother and other Sister Brother Claim resisted principally on ground that Father 'K' having died even in 1965, Plaintiff would not become Coparcener, as Amending Act would apply only if Hindu father was alive on date of its coming into force viz. 9.9.2005 Suit decreed Appeal by Brother Question whether death of father 'K' terminates Coparcenary Contention that effect of Act is to only enlarge rights of Daughters and rights of other relatives would remain unaffected and that if shares of Daughter is enlarged, share that vested in Mother 'L' on death of Father 'K' would necessarily reduce Further contention that enlargement of share of Daughter is not automatic, as it is subject to existence of Coparcenary as on 9.9.2005 and same should not affect share of other relatives, particularly widow of deceased No doubt, there is some force in submissions made on behalf of Appellant, but it has to be conceded that Court's hands are tied, in view of categorical pronouncement of Supreme Court in Vineeta Sharma v. Rakesh Sharma, Though Coparcenary got dissolved on death of Father 'K' by virtue of interpretation placed by Supreme Court on provisions of amended Section 6, it has to be assumed that Coparcenary continued Plaintiff entitled to 1/3rd share, as claimed. (Paras 15.1,15.4,15.5 & 17)

HINDU SUCCESSION ACT, 1956 (30 of 1956), Sections 6 & 8-Claim for Partition Property acquired by Male Hindu 'K' in Partition Character of property - Trial Court proceeded on footing that property allotted to Male Hindu at Partition would become his self-acquisition- This condusion overlooks settled position of law regarding character of property in hands of Male Hindu Same question arose in Additional Commissioner of Income Tax, Madras v. P.L. Karuppan Chettiar, AIR 1979 Mad 1, wherein Full Bench concluded that property allotted to Hindu Son at Partition with his Father would assume character of Ancestral property vis a vis Hindu Son and his Children It was also held that property

allotted to Hindu Father at Partition with his Son would be his self-acquisition in his hands and if it is inherited by Hindu Son on death of Hindu Father, it would partake character of

self-acquisition in his hands, too Conclusion of Trial Court regarding character of property in hands of 'K' which were allotted to him at Partition that took place between him and

his brothers would be only Ancestral and not Self-acquired, set aside. (Paras 14 & 14.2)