LAKSHMANA GOUNDER (SINCE DECEASED 1.Sengottaiyan vs SELVI

2026:MHC:2841
S.A.Nos.601, 612 and 614 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.06.2026
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.Nos.601, 612 and 614 of 2023
and
C.M.P.Nos.19260, 19344 and 19365 of 2023
Lakshmana Gounder (Since Deceased)
1.Sengottaiyan
2.Krishnan
3.Mani ... Appellants (in all SAs)
vs.
1.Selvi

2.Vijaya ... Respondents (in all SAs)
COMMON PRAYER: Second Appeals are filed under Section 100 of the
Code of Civil Procedure, to set aside the judgment and decree dated
16.11.2017 in A.S.Nos.35, 84 and 36 of 2012 on the file of I Additional
District and Sessions Court, Salem modifying erroneous judgment and
decree dated 15.12.2010 in O.S.No.34 of 2001 on the file of the Subordinate
Court, Attur.
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2026:MHC:2841
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For Appellants : Mr.D.Shivakumaran
(in all SAs)
For R1 : Ms.D.Sathya
for M/s.Zeenath Begum
(in all SAs)
For R2 : Mr.R.P.Ruban Chakravarthy
for M/s.S.Kaithamalai Kumaran
(in all SAs)
C O M M O N J U D G M E N T
The defendants 2 and 3 and another legal representative of the
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deceased 1 defendant are the appellants. The 1 respondent/plaintiff filed a
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suit seeking her 1/3 share in the suit properties. The Trial Court granted
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decree for 1/4 share in the suit ‘A’ and ‘B’ schedule properties.
Challenging the said judgment and decree, the plaintiff, defendants 1 to 3
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and 4 defendant filed separate appeals. All these three appeals were heard
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together. Pending first appeal, the 1 defendant-Lakshmana Gounder died
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and hence, the 4 appellant herein has been impleaded as one of his legal
representative. The First Appellate Court partly allowed the appeals filed by
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the plaintiff and 4 defendant and dismissed the appeal filed by the
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2026:MHC:2841
S.A.Nos.601, 612 and 614 of 2023
defendants 1 to 3. The First Appellate Court modified the decree by granting
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1/3 share in favour of the plaintiff and 1/3 share in favour of the 4
defendant. Aggrieved by the same, the defendants 2 and 3 and yet another
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legal representative of the deceased 1 defendant have come before this
Court by way of filing these second appeals.
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2. According to the 1 respondent/plaintiff, the 1 defendant in the
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suit is her father. The 4 defendant is her sister. It is admitted fact that the
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plaintiff and 4 defendant were born to 1 defendant through his divorced
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first wife-Valliammal. The defendants 2 and 3 were born to 1 defendant
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through the 4 appellant-Mani. It is the specific case of the plaintiff that the
suit properties are joint family properties and as such, the plaintiff,
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1 defendant and 4 defendant are entitled to 1/3 share each. It is also
stated by the plaintiff that the marriage between her mother-Valliammal and
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1 defendant got dissolved by a decree of divorce passed by the Subordinate
Court, Salem on 31.03.1978 in H.M.O.P.No.250 of 1997. The marriage
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between the 1 defendant and 4 appellant-Mani was not lawful as it was
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performed during the subsistence of legally performed marriage between 1
defendant with Valliammal. Therefore, according to the plaintiff, the
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defendants 2 and 3, who were born to the 1 defendant and Mani are not
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2026:MHC:2841
S.A.Nos.601, 612 and 614 of 2023
children born out of lawful marriage. Therefore, they should be treated as
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illegitimate sons of the 1 defendant. It is further stated that since the
defendants 2 and 3 are illegitimate children, they are not entitled to any
share in the joint family properties. On these pleadings, the plaintiff laid a
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suit seeking 1/3 share in the suit properties.
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3. The 1 defendant filed a written statement and denied the
averments contained in the plaint, as if, the suit properties are joint family
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properties. According to the 1 defendant, the Suit ‘A’ Schedule Properties
are his exclusive properties. He further pleaded that the said properties were
assigned in his favour by the Government. Therefore, the same shall be
treated as his self-acquired properties. He further stated that he was rearing
cattle and vending milk and out of the funds generated from the said
business, he purchased Item-1 of the Suit ‘B’ Schedule Properties. It was
also pleaded that agricultural lands in suit ‘A’ schedule properties were
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vacant lands and the 1 defendant has not received any income. The
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1 defendant also pleaded that the defendants 2 and 3 were born through his
wife-Mani. On these pleadings, he sought for dismissal of the suit.
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2026:MHC:2841
S.A.Nos.601, 612 and 614 of 2023
4. The defendants 2 and 3 filed written statement supporting the
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stand taken by the 1 defendant. It was also stated that they were legitimate
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children of 1 defendant and in case of partition, they have got equal share
in the suit properties.
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5. The 4 defendant-Vijaya also filed written statement claiming that
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the suit properties are ancestral properties and sought for decree for 1/3
share in the suit properties.
6. Before the Trial Court, the plaintiff was examined as PW.1 and on
her behalf, four other witnesses were examined as PW.2 to PW.5 and 11
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documents were marked as Exs.A1 to A11. The 1 defendant was examined
as DW.1 and two other witnesses were examined on his behalf as DW.2 and
DW.3. The defendants 3 and 4 were examined as DW.4 and DW.5. On
behalf of the defendants, 7 documents were marked as Exs.B1 to B7. Apart
from these documents, one another exhibit was marked as Ex.X1.
7. The Trial Court on appreciation of oral and documentary evidence
available on record, came to the conclusion that the suit properties were
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ancestral properties. The Trial Court also found that the 3 defendant was
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2026:MHC:2841
S.A.Nos.601, 612 and 614 of 2023
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legitimate son of 1 defendant through 4 appellant-Mani and hence, held
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the plaintiff, 1 defendant, defendants 3 and 4 were entitled to 1/4 share
each. Aggrieved by the same, the plaintiff filed first appeal in A.S.No.35 of
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2012, the 4 defendant filed first appeal in A.S.No.36 of 2012 and the
defendants 1 to 3 filed first appeal in A.S.No.84 of 2012 on the file of the I
Additional District and Sessions Court, Salem. All these appeals were heard
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together and ultimately, the appeals filed by the plaintiff and 4 defendant
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were partly allowed by modifying the decree for partition granting 1/3
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share each in favour of the plaintiff and 4 defendant. The appeal filed by
the appellants were dismissed. Aggrieved by the same, the appellants have
come before this Court.
8. The learned counsel appearing for the appellants would submit
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that the suit properties were assigned to the 1 defendant by the
Government, therefore, it shall be treated as his separate properties and the
finding of the Courts below that the suit properties were treated as joint
family properties was erroneous one. He further submitted that DW.5 in her
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evidence admitted that the 1 defendant married Mani subsequent to the
divorce with her first wife and hence, the marriage with Mani is a valid one
and the defendants 2 and 3 shall be treated as legitimate children. The
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2026:MHC:2841
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learned counsel further submitted that in such case the plaintiff is entitled to
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only 1/5 share along with defendants 2 to 4 and the above said Mani. The
learned counsel further submitted that even assuming the suit properties are
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ancestral properties, on death of 1 defendant pending first appeal, the
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defendants 2 and 3, even assuming illegitimate children of 1 defendant, are
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entitled to equal share along with plaintiff and 4 defendant in the 1/3 share
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of 1 defendant.
9. In the light of the submission made by the learned counsel
appearing for the appellants, with regard to the subsequent event, ie., death
of first defendant pending the first appeal, the following substantial question
of law arising for consideration in this Second Appeal:
(a) Whether the defendants 2 and 3, even assuming the
illegitimate children of first defendant, are not entitled to
equal share along with legitimate children for first defendant
in the 1/3 share of the first defendant in the ancestral
properties;
10. The learned counsel appearing for the respondents are heard on
the said question of law.
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2026:MHC:2841
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11. The learned counsel appearing for the respondents would
vehemently contend that the first appellate Court on proper appreciation of
evidence available on record came to the conclusion that the defendants 2
and 3 are illegitimate children of first defendant and hence, they cannot
claim any share in the suit properties, which are found to be ancestral
properties.
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12. Ex.A1 is a Partition Deed between the 1 defendant, his father,
mother and brother, dated 16.04.1986. Based on Ex.A1, the Courts below
came to the conclusion that the suit properties which were assigned to the
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1 defendant and other family properties were partitioned under Ex.A1 and
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the suit properties have been allotted to the share of 1 defendant. The
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1 defendant, who was examined as DW.1 clearly admitted that the Suit ‘A’
Schedule properties were assigned in favour of his father by the Government
and the assigned properties were allotted to his share in Ex.A1-Partition
Deed. Therefore, it is clear that the Suit ‘A’ Schedule properties, which were
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assigned in favour of the 1 defendant’s father was blended with other joint
family properties. The other joint family properties and the assigned
properties, which were treated as joint family properties were
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2026:MHC:2841
S.A.Nos.601, 612 and 614 of 2023
partitioned and in the said partition, the assigned properties were allotted to
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the share of 1 defendant. Therefore, Ex.A1 and the admission of DW.1 are
sufficient to come to a conclusion that the assigned properties were blended
with the joint family properties and it acquired the character of joint family
properties. The finding of the Courts below that the suit properties were
joint family properties was based on proper appreciation of Ex.A1 and
admission of DW.1 and the same requires no interference from this Court.
13. It is vehemently contended by the learned counsel appearing for
the appellants that the defendants 2 and 3 are legitimate children of
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1 defendant and the finding of the First Appellate Court as if, they were
illegitimate children is contrary to the evidence available on record.
14. A close scrutiny of the pleadings of the parties would establish
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that the plaintiff, in his pleadings categorically stated that the 1 defendant’s
marriage with Mani was not lawful and the same had happened during the
continuance of his marriage with Valliammal. The said plea raised by the
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plaintiff has not been denied specifically by the 1 defendant in his written
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statement. Though the 1 defendant in his written statement made an
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2026:MHC:2841
S.A.Nos.601, 612 and 614 of 2023
evasive plea that the defendants 2 and 3 were born to him through Mani, he
had not stated that his marriage with Mani had happened subsequent to the
divorce with Valliammal. In the absence of specific plea in the written
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statement denying the plea raised by the plaintiff that the 1 defendant
married one Mani during continuance of his marriage with Valliammal. The
same shall be taken as an admission.
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15. The 1 defendant is the best person to lead evidence with regard
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to the date of marriage with 4 appellant-Mani and with regard to the
legitimacy of defendants 2 and 3. The plaintiff has taken a stand that the
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marriage of 1 defendant with Mani had taken place during continuance of
his marriage with Valliammal. However, the defendants have not produced
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any evidence available on record to establish the marriage of 1 defendant
with Mani was solemnised after decree for divorce and hence, it was a valid
one. In the absence of any evidence available on record to suggest that the
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marriage of 1 defendant with Mani is valid, the defendants 2 and 3 can only
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be treated as illegitimate children of 1 defendant through the above said
Mani.
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2026:MHC:2841
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16. Once we come to the conclusion that the defendants 2 and 3 are
illegitimate sons, they are not entitled to equal share in the joint family
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properties along with plaintiff and 4 defendant. The said conclusion
reached by the First Appellate Court is based on proper appreciation of facts
and the same is in accordance with law. The First Appellate Court is
justified in modifying the Trial Court’s judgment by granting partition
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decree for 1/3 share in favour of plaintiff in the suit properties.
17. However, the Trial Court committed an error in not taking into
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consideration the subsequent event namely death of 1 defendant pending
first appeal. It is settled law, a partition suit is deemed to be pending till
actual partition by meats and bounds under final decree. It is also settled
law that any number of preliminary decree can be passed in a partition suit
by taking into consideration the subsequent events like birth and death of
sharers and change in law etc. In the case on hand, we already came to the
conclusion that the suit properties are ancestral properties and therefore, the
plaintiff, first defendant and fourth defendant are entitled to 1/3 share each
in the suit properties. However, the first defendant died pending
the first appeal. Therefore, the said subsequent event shall be taken into
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2026:MHC:2841
S.A.Nos.601, 612 and 614 of 2023
consideration and preliminary decree passed by the Courts below needs to
be modified by distributing the share of the first defendant among the
surviving heirs.
18. As per the law settled by the Hon’ble Apex Court in
Revanasiddappa & Another Vs. Mallikarjun & Others reported in 2023
SCC OnLine SC 1087 , even the illegitimate children are entitled to equal
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share in the separate properties of father. On the date of death of 1
defendant-Lakshmana Gounder, there was a notional partition in his favour.
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Therefore, in the 1/3 share of 1 defendant-Lakshmana Gounder, the
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plaintiff, 4 defendant and defendants 2 and 3 are entitled to equal share. In
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such case, the First Appellate Court’s decree granting 1/3 share in favour
of plaintiff shall be modified by enhancing her share to 5/12 [4/12 + 1/12].
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The defendants 2 and 3 are entitled to 1/12 share each. The 4 defendant is
entitled to 5/12 [4/12 + 1/12] share.
19. In the light of the above discussion, the appellants 1 and 2 viz.,
the defendants 2 and 3 are entitled to 1/12 share in the suit property and
accordingly, the second Appeal stands partly allowed. In view of the
distribution of the share of the first defendant in the notional partition to the
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2026:MHC:2841
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surviving legal heirs, the share already allotted to the plaintiff and 4
defendant gets enhanced by 5/12 share. It is also settled law that even
though the respondents have not filed an appeal, in appropriate cases, where
the appellate Court finds, in view of the conclusion reached by it, the
unchallenged portion of the decree becomes incompatible with the modified
portion of the decree, can very well invoke its power under Order 41 Rule
33 of C.P.C. and modify the unchallenged portion of the decree. Once we
come to the conclusion that the defendants 2 and 3 are entitled to 1/12 share
of the suit property by virtue of distribution of deceased first defendant's
share in the suit property among the surviving legal heirs, the other legal
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heirs viz., plaintiff and 4 defendant are also entitled to 1/12 share each in
addition to what was already allotted by the first appellate Court. Therefore,
this Court by virtue of its power under Order 44 Rule 33 of C.P.C., enhances
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the share allotted to the plaintiff and 4 defendant as 5/12 share each in the
suit properties.
20. In Nutshell :-
(i) The Second Appeals stand Partly Allowed. The defendants
2 and 3 are entitled to 1/12 share each in the suit property. The
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2026:MHC:2841
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plaintiff and the 4 defendant are entitled to 5/12 share each in the suit
property. The judgment and decree passed by the first appellant are
modified accordingly.
(ii) Consequently, the connected civil miscellaneous petitions
are closed.
(iii) In the facts and circumstances of the case, there will be no
order as to costs.
18.06.2026
Index : Yes
Speaking order : Yes
Neutral Citation : Yes
dm
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2026:MHC:2841
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To
1.The I Additional District and Sessions Court,
Salem.
2.The Subordinate Court,
Attur.
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2026:MHC:2841
S.A.Nos.601, 612 and 614 of 2023
S.SOUNTHAR, J.
dm
S.A.Nos.601, 612 and 614 of 2023
18.06.2026
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