Share obtained by a coparcener on partition retains the character of ancestral property - daughter automatically became a coparcener along with her father upon her birth - Sale during the pendency of the suit is not invalid, and the purchaser's can work out their rights in the final decree proceedings - Existence of will pleaded in written statement - law does not compel the plaintiff to file a rejoinder - It is for the defendant to prove what he has pleaded .

Citation 

(2024) 4 MLJ 109

LNIND 2024 MAD 3164

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Hon'ble Mr. Justice R. Subramanian

Hon'ble Mr. Justice R. Sakthivel

A.S.Nos. 345 & 350 of 2017 and 898 & 899 of 2018

13th June, 2024

M.M. Kumaresan and Others

... Appellants

Versus

M. Shanmugavadivu and Others

...Respondents

(A) Hindu Law Coparcenary property - Share obtained by a coparcener on partition retains the character of ancestral property qua his male and female issues Hindu Succession Act, 1956 (as amended by Act 39 of 2005), Sections 6 and 8 Ancestral property was partitioned in 1952 and a share was allotted to M The plaintiff was born to M in 1957, and a son was born thereafter - In view of the decision of the Supreme Court in Vineeta Sharma (2020) 9 SCC 1, the plaintiff being the daughter of M, automatically became a coparcener along with her father upon her birth - No error in the decree of the trial court granting the Plaintiff½ share in the properties - Sale deed executed by the 1st defendant during the pendency of the suit is not invalid, and the purchaser's can work out their rights in the final decree proceedings [Paras 18, 24, 27 and 29] - A.S 350 and 899 of 2017, dismissed A.S 345 and 898 of 2017, partly allowed.

(B) Limitation Plea of ouster - Ouster from the enjoyment of joint family property must be pleaded and established - Limitation Act, 1963, Article 110 The period of limitation, qua a plea of ouster, begins to run when the exclusion from the enjoyment of joint family property becomes known to the plaintiff - In the instant case, the plaintiff's was entitled to exercise her right as a coparcener on and from 09.09.2005 ie., on and from the coming into force of the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) Article 110 requires a clear act or behavior that makes the plaintiff aware of their exclusion from the joint family property, and the burden to establish such a requirement is on the defendant - In the case, there is no evidence to establish the plea of ouster [Paras 25 and 26].

(C) Civil Procedure Practice and procedure Rejoinder Plea that the plaintiff did not deny the Will in her partition suit by filing a rejoinder rejected The law does not compel the plaintiff to file a rejoinder - It is for the defendant to prove what he has pleaded - Plaintiff having denied the Wills in the connected injunction suit constituted a sufficient pleading as the suits were being tried jointly [Para 22]. been framed on the