TMT.MURUGAMMAL vs ANDI

2026:MHC:2303
S.A.No.897 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15/ 06 / 2026
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.No.897 OF 2002
Murugammal
W/o. Murugesa Naicker
Therkupattu Village,
Thiruvandanthi Post,
Chenglepet District. … Appellant /
Respondent /
Plaintiff
Vs.
1.Andi
S/o. Late Venkatesa Naicker
Therku Pattu Village,
Thiruvidanthai Post, Kovalam Via
Chenglepet District. … Respondent – 1 /
Appellant /
Defendant – 2
Annammal (Deceased)
2.Kaliammal
W/o. Devaraj
Mailai Village, Karumbakkam Post,
Chengalpattu Taluk.
3.Chandrammal (Died)
W/o. Loganathan
Nanmangalam Village,
Kelambakkam Village,
Saidapet Taluk. … Respondents 2&3 /
Respondents 3&4 /
Defendants 3&4
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S.A.No.897 of 2002
4.L.Boobalan
S/o. Loganathan
5.L.Kannan
S/o. Loganathan
6.L.Ulaganathan
S/o. Loganathan
Respondents No.4 to 6 are residing at
Nanmangalam Village,
Balaramannaicker Street,
Tambaram Taluk,
Kancheepuram District.
7.L.Sankari
W/o. Chandrasekar
Therkkupattu Village,
Thiruvidanthai Post, Kovalam Via.,
Kancheepuram District. … Respondents 4 to 7/
Legal Representatives
rd
of deceased 3
respondent.
(Respondents No.4 to 7 brought on record as LRs’ of
rd
the deceased 3 respondent viz., Chandrammal and also
set ex-parte vide Order of Court dated
September 17, 2019 made in CMP Nos.
334 to 336 of 2012 in S.A.No.897 of 2002)
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
November 16, 2001 made in A.S.No.7 of 2001 on the file of the Principal
District Judge, Chengalpattu, modifying the Judgment and Decree dated
October 25, 2000 made in O.S.No.44 of 1994 on the file of the Additional
Sub Judge, Chengalpattu.
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2026:MHC:2303
S.A.No.897 of 2002
For Appellant :Mr.V.Kannan
For Respondent-1 : Mrs.S.Jothivani
For Respondent-3 : Died, steps taken.
For Respondents No.4 to 6: Unclaimed
For Respondent No.7 : served.

J U D G M E N T
This Second Appeal is directed by the unsuccessful plaintiff
assailing the Judgment and Decree dated November 16, 2001 passed in
A.S.No.7 of 2001 by the 'Principal District Court, Chengalpattu,' ['First
Appellate Court' for brevity], whereby the Judgment and Decree dated
October 25, 2000 passed in O.S.No.44 of 1994 by the ‘Additional Sub
Judge, Chengalpattu' ['Trial Court' for brevity] was modified.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit. For better appreciation of
facts, the relationship between the parties has been shown in the
following genealogy:
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S.A.No.897 of 2002

PLAINTIFF'S CASE
3 .The plaintiff is the daughter of one Venkatesa Naicker born
through his first wife viz., Thayar Ammal. The first defendant is the
second wife of Venkatesa Naicker and defendants 2 to 4 are the children of
Venkatesa Naicker, born through his second wife viz., Annammal( first
defendant). Venkatesa Naicker passed away intestate on November 6,
1989, leaving behind the plaintiff, and the first defendant as his legal heirs.
The Suit Properties are the self-acquired properties of Venkatesa Naicker.
According to the plaintiff, the plaintiff and the defendants are entitled to
equal share in the Suit Properties. They are in joint possession and
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S.A.No.897 of 2002
enjoyment of the Suit Properties.
3.1. While so, after the demise of Venkatesa Naicker, the
plaintiff demanded partition of the Suit Properties, which was postponed
by the defendants. Therefore, the plaintiff caused a legal notice on March
2, 1993 calling upon the defendants for an amicable partition. All the
defendants, except the fourth defendant, have received the notice. Since
there was no reply from them, the plaintiff has filed the Suit seeking
partition of her 1/5 share in the Suit Properties.
SECOND DEFENDANT’S CASE
4. The second defendant filed written statement denying the
allegations made by the plaintiff in the plaint. The Defendant Nos.1, 3 and
4 were set ex-parte before the Trial Court .
4.1 .The relationship between the parties is denied and the
plaintiff is put to strict proof thereof. It is averred that Venkatesa Naicker
passed away in the year 1989 leaving behind the defendants alone as his
legal heirs. Venkatesa Naicker inherited about 2 Acres of ancestral land in
an oral partition made about 50 years ago. The Suit Properties were
purchased from and out of the income derived from the ancestral nucleus.
Venkatesa Naicker has no other independent income to purchase the Suit
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Properties. Since Venkatesa Naicker was the eldest member in the family,
the revenue records and other records stands in his name. Therefore, the
Suit Properties are not the self-acquired properties of Venkatesa Naicker.
4.2 .It is further averred that Patta No.49 is still standing in the
name of Sengazhani Naicker – father of Venkatesa Naicker. The nanja
lands bearing S.No.240/1 and 240/4 are subject matter of Suit in
O.S.No.463 of 1984 pending before the District Munsif, Chengalpattu.
Further, the defendants 1, 3 and 4 have disclaimed interest over the Suit
Properties and have executed a Release letter in favour of the second
defendant. The averment that the plaintiff is in joint possession and
enjoyment of the Suit Properties is denied and the plaintiff is not entitled
to any share in the Suit Property. Stating so, the second defendant sought
to dismiss the Suit.
TRIAL COURT
5. At trial, on the side of the plaintiff, the plaintiff –
Murugammal was examined as P.W.1 and one Narayanan was examined
as P.W.2 and Ex-A.1 to Ex-A.8 were marked. On the side of the
defendants, second defendant – Andi was examined as D.W.1 and fourth
defendant – Chandra (Chandrammal) was examined as D.W.2 and Ex-B.1
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S.A.No.897 of 2002
to Ex-B.15 were marked.
6. The Trial Court, after analyzing the oral and documentary
evidence, concluded that the suit properties are not joint family properties,
but are self acquired properties of G.Venkatesa Naicker. Accordingly the
plaintiff is entitled to 1/5 share in the Suit Properties and passed a
preliminary decree in favour of the plaintiff for partition of the Suit
Properties into five equal shares by metes and bounds. Accordingly, the
Trial Court has decreed the Suit.
FIRST APPELLATE COURT
7. Feeling aggrieved, the second defendant preferred an appeal
before the First Appellate Court. The First Appellate Court after hearing
both sides, concluded that the suit properties are ancestral and joint family
properties, purchased in and out of the income derived from the ancestral
properties which were allotted to G.Venkatesa Naicker, in an oral
partition. Accordingly held that the plaintiff is entitled to 1/10 share in the
Suit Properties. To that extent, the First Appellate Court allowed the
appeal in part and modified the Trial Court’s Judgment and Decree .
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S.A.No.897 of 2002
SECOND APPEAL
8. Feeling aggrieved, the plaintiff has preferred this Second
Appeal, which was admitted on July 5, 2002, on the following substantial
questions of law:
“1.Whether the lower appellate court is correct in
holding that this appellant is entitled to 1/10 share of his father?
2.Whether the lower appellate court has not appreciating
the evidence properly which resulted in decreeing the suit?
3.Whether the suit as laid down by the defendant /
appellant is maintainable without representing other defendant?’
ARGUMENTS
9. Mr. V.Kannan, learned Counsel appearing for the
Appellant/plaintiff, submits that the First Appellate Court, without
appreciating the facts and circumstances, erred in concluding that the suit
properties are ancestral and joint family properties. He further submits that
the burden is upon the Defendant to prove the existence of a joint family
nucleus and surplus income therefrom. He further submits that an extent
of 53 Cents along was the subject matter in O.S.No.463 of 1984. And it is
not possible to derive surplus income therefrom. He further submits that
the First Appellate Court failed to consider Ex.A.6 and Ex.A.7 sale deeds,
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which established the fact that the suit properties are the self-acquired
properties of G.Venkatesa Naicker. He further submits that, during the
lifetime of G.Venkatesa Naicker, he alienated some of the properties
referring to them as his absolute properties. Furthermore, at that time, the
2nd defendant did not raise any objection to the aforesaid alienation made
by G.Venkatesa Naicker. He further submits that the Trial Court, after
considering the entire evidence and documents, rightly concluded that the
Plaintiff is entitled to a 1/5 share. However, the First Appellate Court,
without assigning any valid reason, wrongly concluded that the suit
properties are ancestral properties. Accordingly, he prays to allow the
Second Appeal set aside the Judgment and Decree of the First Appellate
court and sustain the Judgment and Decree of the Trial Court.
10. Per contra , Mrs. S.Jothivani, learned Counsel appearing
for the respondent, would submit that the Plaintiff filed Exhibits Ex.A.6
and Ex.A.7. Under Ex.A.6-sale deed, an extent of 50 cents in Survey
No.2/1A was purchased by G.Venkatesa Naicker. Under Ex.A.7-sale deed,
a total extent of 99 cents alone was purchased by G.Venkatesa Naicker.
Admittedly, G.Venkatesa Naicker was allotted some property in an oral
partition among the brothers. She further brings the attention of this Court
to the plaint schedule properties which is nearly 7 Acres 60 Cents.
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Admittedly, G.Venkatesa Naicker was engaged in agriculture alone. In
these circumstances, the burden is upon the Plaintiff to show that the
entire suit properties are the separate and self-acquired properties of
G.Venkatesa Naicker. Except Ex.A.6 and Ex.A.7, the Plaintiff did not file
any sale deed or document to show that the properties are the self-acquired
properties of G.Venkatesa Naicker. The Trial Court without properly
appreciating the facts and the supporting circumstances decreed the suit
by holding the properties are the self acquired properties. However, the
First Appellate Court, after evaluating the entire evidence and documents,
rightly concluded that the suit properties are ancestral properties in which
the Plaintiff is entitled to 1/10 share alone. There is no need to interfere
with the same. Accordingly, the learned Counsel prays to dismiss the
Second Appeal and sustain the decree and judgment of the First Appellate
Court.
DISCUSSION AND DECISION
11 . This Court has heard the submissions made on either side
and perused the materials available on record.
12. As regards the character of the properties, the Plaintiff
filed Ex.A.6 and Ex.A.7- sale deeds alone. Under Ex.A.6-sale deed, an
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extent of 50 cents in Survey No.2/1A was purchased by G.Venkatesa
Naicker and the same was subsequently sold. Under Ex.A.7-sale deed, a
total extent of 99 cents alone was purchased by G.Venkatesa Naicker. On
the other hand, the total extent of the suit properties is 7 acres and 60
cents. There is sufficient evidence available on record to conclude that
G.Venkatesa Naicker was engaged in agriculture alone. Though the
Plaintiff contended that G.Venkatesa Naicker was running a provision
store, the Plaintiff has miserably failed to establish the said fact. In these
circumstances, this Court is of the view that a large extent of agricultural
land was in the hands of G.Venkatesa Naicker even prior to Exs.A.6 and
A.7- sale deeds as ancestral property / joint family property. In the absence
of evidence to show that G.Venkatesa Naicker had any other separate or
personal income, law presumes that the properties covered under Ex.A.6
and Ex.A.7 were purchased in and out of the joint family income derived
from the ancestral properties. The First Appellate Court, after considering
the entire evidence available on record, rightly concluded that the suit
properties are all ancestral and joint family properties.
13. It is the further case of the Plaintiff that she was born
through Thayarammal, who was the first wife of G.Venkatesa Naicker.
The first defendant, Annammal, is the second wife of G.Venkatesa Naicker
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and defendants 2 to 4 were born through Annammal. Defendants 1, 3 and
4 did not contest the case and they were set ex-parte before the Trial
Court. The 2nd defendant, Andi, filed a written statement stating that the
Plaintiff is not a legal heir of G.Venkatesa Naicker. To disprove the said
fact, the Plaintiff filed Ex.A.1 and Ex.A.2. Ex.A.1 is the death certificate
of G.Venkatesa Naicker, which shows that he passed away on November
6, 1989. Ex.A.2 is the legal heir certificate, wherein the Plaintiff and
defendants 1 to 4 are shown as the legal heirs of late G.Venkatesa Naicker.
14. Though the defendants denied the relationship of the Plaintiff
with G.Venkatesa Naicker in the written statement, during evidence,
D.W.1 has categorically admitted that the Plaintiff is the daughter of
G.Venkatesa Naicker born through the first wife, Thayarammal. In Ex.A.2,
the age of the first defendant has been shown as 70 years, the age of the
2nd defendant as 39 years, the age of the 3rd defendant as 48 years, and
the age of the 4th defendant as 40 years. Ex.A.2 was issued on August 31,
rd
1993. If it is so, Kaliammal, the 3 defendant, would have been born in
th
the year 1935 and the 4 defendant would have been born in the year
1943. Thus, the defendants would have been born in the years 1935 to
1943. However, there is no evidence available on record as to when the
Plaintiff's mother died. In these circumstances, even though the first
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defendant is the second wife, her marriage took place before the
commencement of Madras Hindu (Bigamy Prohibition and Divorce) Act,
1949 [Madras Act No.VI of 1949]. Hence, even while assuming that the
first defendant is the second wife of G.Venkatesa Naicker, the marriage
was valid and she along with her children to G.Venkatesa Naicker, is also
his legal heir. Admittedly, G.Venkatesa Naicker died on November 6,1989
as a Hindu. The parties are Hindus and, therefore, the applicable
Succession Law is Hindu Succession Act, 1956. Admittedly, the Plaintiff's
marriage took place before the Tamil Nadu Act 1 of 1990. Hence, the
Plaintiff is not entitled to the benefit of Tamil Nadu Act 1 of 1990. During
the pendency of this Second Appeal, Hindu Succession Act, 1956 was
amended and old Section 6 was substituted with new Section 6 vide the
Hindu Succession Amendment Act, 2005 [Act 39 of 2005] with effect
from September 09, 2005. As per the Act, the Plaintiff is a co-parcener
entitled to equal share to that of the male heirs of G.Venkatesa Naicker,
i.e., the second defendant.
15. The contention of the 2nd defendant is that the Plaintiff
and the other Defendants released their right in the suit properties vide Ex-
B.15 – Release Deed. This Court is of the considered view that Ex-B.15 is
an inadmissible document and cannot be proved for the following reasons:
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(i) Ex.B.15 is an unregistered document, hence it is inadmissible as per
Section 17 of the Registration Act, 1908 and (ii) the Plaintiff issued a
notice on March 02, 1993 and the defendant sent a reply notice on March
16, 1993, whereas Ex.B.15 was allegedly executed on March 29, 1993,
i.e., after the issuance of the notice and reply notice, which fact casts
doubt over its genuinity. Hence, both the Courts below rightly disbelieved
Ex-B.15 - Release Deed and there is no warrant to interfere with the same.
16 . As stated supra , there is no registered partition deed and no
actual partition took place between the parties before December 20, 2004.
Hence, as per the dictum laid down by the Hon'ble Supreme Court in the
Vineeta Sharma Vs. Rakesh Sharma , reported in (2020) 9 SCC 1 , the
father need not be alive as on September 09, 2005 (Date of
commencement of Act 39 of 2005) to enable the daughter to claim equal
rights by birth. Hence, the Plaintiff, being the daughter of G.Venkatesa
Naicker, is entitled to an equal share as that of his son – second defendant.
Therefore, the Plaintiff is entitled to 1/5 share under Section 6 of the
Hindu Succession Act, 1956. After the demise of G.Venkatesa Naicker, his
1/5 share shall devolve upon his legal heirs under Section 8 of the Hindu
Succession Act, 1956. Thus, the Plaintiff will be entitled to 1/5 + 1/25 =
6/25 share. To that extent, the decree and judgment of the First Appellate
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Court and the Trial Court require modification.
CONCLUSION:-
17. In the result, the Second Appeal is allowed in part. The
Plaintiff is entitled to 6/25 share in the suit properties. To that extent, the
decree and judgment of the Trial Court as well as the First Appellate Court
are modified. Considering the relationship between the parties, there shall
be no order as to costs.
15 / 06 / 2026
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK/jrs
To
1.The Principal District Judge
Chengalpattu.
2.The Additional Sub Judge
Chengalpattu.
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2026:MHC:2303
S.A.No.897 of 2002
R. SAKTHIVEL, J.
jrs


S.A.NO.897 OF 2002
15 / 06 / 2026
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