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Judgment
259 paragraphs · 5,922 wordsP.R. Shivakumar, J.—The defendants in the Original Suit are the appellants in the second appeal. The plaintiffs in the Original Suit are the
respondents in the second appeal. The Original suit was filed by the respondents/plaintiffs for a) maintenance; b) a charge over of 1/6th share of
the deceased first appellant/first defendant in the suit properties; c) dividing the suit properties into six equal shares and allotment of one such share
to the second respondent/second plaintiff; d) rendition of accounts and e) costs. The learned trial judge decreed the suit with cost as prayed for
and granted a decree for maintenance in favour of the first respondent/first plaintiff directing the deceased first appellant/first defendant to pay a
sum of Rs. 5,500/- as past maintenance from 1.1.1999 till the date of filing of the suit and subsequent maintenance from the date of suit till the
death of the first appellant/first defendant at the rate of Rs. 1,000/- per month; creating a charge over the share of the first appellant/first defendant
in the suit properties except items 3, 6, 7, 14, 19 and 27 and a preliminary decree for partition directing division of the suit properties except items
3, 6, 7, 14, 19 and 27 into six equal shares and allotment of one such share to the second respondent/second plaintiff. The decree also directed the
appellants/defendants to render true and correct account regarding the second respondent/second plaintiff''s share of the income derived from the
properties and directed and also payment of cost. On an appeal preferred in A.S. No. 16/2003 on the file of the Principal District Judge,
Tiruvannamalai, the learned lower appellate judge confirmed the decree in respect of maintenance, but modified the decree of the lower court in
respect of the prayer for partition holding that the second respondent/second plaintiff was entitled to 8/42 share and the first respondent/first
plaintiff was entitled to 1/42 share in the suit properties except items 3, 6, 7, 14, 19 and 27. As against the said judgment and decree of the lower
appellate court, the present second appeal has been filed by the defendants. For the sake of convenience, the parties shall be referred to in
accordance with their ranks in the suit and at appropriate places, their ranks in the appeal shall also be indicated.
The first defendant Rajagopal had married one Pachaiammal and through her he got one son and four daughters. They are: 1) Kamalakannan @
Setu (2nd Defendant), 2) Apeetha (5th appellant not a party in the suit), 3) Tamil Selvi (3rd defendant), Selvi (4th defendant) and Anjala (5th
defendant). Pachaiammal is no more. Contending that after the death of Pachaiammal, the first defendant married Kasthuri/the first plaintiff on
02.09.1992 in Annamalayar Temple, Tiruvannamalai, which was registered with Receipt No. 8978 in the register maintained in Sri Arulmigu
Arunachaleswarar Temple, Tiruvannamalai; that out of the said wedlock, the second plaintiff Pannerselvam was born on 18.08.1996 at
Government Hospital, Tiruvannamalai; that the said birth was registered in Tiruvannamalai Municipality with Registration No. 1874/1996 on
19.08.1996; that till December 1998 they lived along with the first defendant; that thereafter due to the ill treatment caused by the first defendant,
who had become addicted to drinks and also by his mother, the plaintiffs had to leave the first defendant and live in the house of the first plaintiff''s
mother; that the first defendant, who inherited 2.00 acres of land from his father Chinnapaiya Gounder, who died 53 years prior to the filing of the
suit, with no other source of income purchased 13.00 acres of land and put up a terraced house after demolishing a thatched house out of the
income derived from the ancestral property inherited from his father and that therefore all the properties inherited by the first defendant from his
father and the properties purchased by the first defendant were the joint family properties, in which the second plaintiff was entitled to a share by
birth, the plaintiffs had filed the suit for the relief of partition. In line with their contention that Apeetha, the first daughter of the first defendant was
married 12 years prior to the filing of the suit (prior to the date from which amendment to Hindu Succession Act was brought by Tamil Nadu Act
1/1990) and other daughters of first defendant got married subsequently, they had contended that the second plaintiff and the defendants 1 to 5
were entitled to 1/6th share each in the suit properties. Based on the averment that the first defendant failed and neglected to maintain the first
plaintiff, the suit was filed also for a decree against the first defendant and for a direction to pay maintenance at the rate of Rs. 1,000/- per month
and for creation of charge over the share of the first defendant in the suit properties. Relief of partition directing separation of the 2nd plaintiff''s
1/6th share from the rest was also sought for along with a prayer for a direction to render true and correct account for the second plaintiff''s share
of the income derived from the suit properties.
The suit was resisted by the defendants on the basis of the averments found in the written statement filed by the first defendant, which was
adopted by the defendants 2 to 5. In the written statement, the defendants have admitted the plaint allegations regarding the relationship among the
defendants 1 to 5. However, as against the plaint averment that the wife of Pachaiammal died 12 years prior to the filing of the suit, the defendants
averred that she died about 11 years prior to the filing of the written statement. It was admitted that the 5th appellant Apeetha''s marriage took
place 12 years prior to the filing of the suit. The defendants also stated that second defendant Tamil Selvi and the third defendant Selvi got married
in the year 1990 subsequent to the amendment to the Hindu Succession Act introduced by Tamil Nadu Act 1 of 1990 and that the second
defendant Kamalakannan @ Setu and the 5th defendant Anjala were not married as on the date of filing of the written statement. They also
admitted the plaint averment that the first defendant got 2.00 acres of land by way of inheritance from his father. However, the defendants denied
the plaint averments that other properties were purchased out of the income derived from the ancestral land inherited by the first defendant from his
father. On the other hand, they had also contended that the first defendant was doing paddy and groundnut business and out of the income derived
from the said business, he purchased 10.00 acres of land and a vacant site, made improvements in the lands spending about Rs. 2,60,000/- and
put up a construction in the vacant site purchased by him. The defendants had also contended that the properties shown as items 3, 6, 7, 14, 19
and 27 were the self-acquisitions of Pachaiammal and hence the plaintiffs could not claim any share or charge over their shares in respect of the
same. It was also contended by the defendants that the properties described as items 8, 24 to 26 and 27 did not belong to the family of the first
defendant. Besides the above said averments, the defendants had also taken a plea that the first defendant did not marry the first plaintiff as claimed
by the plaintiffs in the plaint and that the second plaintiff was not the son of the first defendant. Based on the above said averments, they had
prayed for the dismissal of the suit.
Based on the above said averments, the learned trial judge framed as many as eight issues, which are as follows:
Whether the first plaintiff is not the legally wedded wife of the first defendant?
Whether the second plaintiff is not the son of the first defendant born through the first plaintiff?
Whether the suit items of properties except items 18, 19, 23 and 27 are not the joint family properties?
Whether the first plaintiff is entitled to past and future maintenances as claimed?
Whether the first plaintiff is entitled to a charge in respect of the share of the first defendant?
Whether the second plaintiff is entitled to 1/6th share in the suit properties?
Whether the defendants should be directed to render accounts for the income derived from the suit properties till separate possession of the
second plaintiff''s 1/6th share is given to him?
To what other relief the plaintiffs are entitled?
Based on the same, the parties went for trial. In the trial, four witnesses were examined as PWs. 1 to 4 and seven documents were marked as
Exs. A1 to A7 on the side of the plaintiff. Two witnesses were examined as DWs. 1 and 2 and 19 documents were marked as Exs. B1 to B19 on
the side of the defendants. At the conclusion of trial, the learned trial judge decreed the suit with cost as prayed for granting maintenance in favour
of the first respondent/first plaintiff directing the deceased first appellant/first defendant to pay a sum of Rs. 5,500/- as past maintenance from
1.1.1999 till the date of filing of the suit and subsequent maintenance from the date of suit till the death of the first appellant/first defendant at the
rate of Rs. 1,000/- per month and creating a charge over the share of the first appellant/first defendant in the suit properties except items 3, 6, 7,
14, 19 and 27 and passed a preliminary decree for partition directing division of the suit properties except items 3, 6, 7, 14, 19 and 27 into six
equal shares and allotment of one such share to the second respondent/second plaintiff. The decree also directed the appellants/defendants to
render true and correct account regarding the second respondent/second plaintiff''s share of the income derived from the properties and also
directed payment of cost.
As against the said judgment and decree of the trial court dated 31.12.2002, the defendants filed an appeal in A.S. No. 16/2003 on the file of
the District and Sessions Judge, Tiruvannamalai. The learned lower appellate judge confirmed the decree in respect of maintenance, but modified
the decree of the lower court in respect of the prayer for partition holding the second respondent/second plaintiff was entitled to 8/42 share and the
first respondent/first plaintiff was entitled to 1/42 share in the suit properties except items 3, 6, 7, 14, 19 and 27. As against the said judgment and
decree of the lower appellate court, the present second appeal has been filed by the defendants on various grounds set out in the Memorandum of
Grounds of Second Appeal.
The arguments advanced by Mr. G. Rajan, learned counsel for the appellants and by Mr. S. Ganesh, learned counsel for the respondents were
heard. The materials available on record were also perused.
The first plaintiff Kasthuri, claiming to be the legally wedded wife of the first defendant Rajagopal, has prayed for past and future maintenance on
the ground that the first defendant failed to maintain her despite having sufficient means. According to the plaintiffs, the first defendant married the
first plaintiff Kasthuri after the death of Pachaiammal, the first wife of the first defendant. It is not in dispute that Pachaiammal was the legally
wedded wife of the first defendant and the defendants 2 to 5 and the 5th appellant Apeetha are the son and daughters born to them out of lawful
wedlock. Though the 5th appellant was not made a party in the suit, she came to be impleaded before the lower appellate court as the 6th
appellant after the death of the first defendant Rajagopal. Initially she had been left out on the premise that she had not become a coparcener by
virtue of Tamil Nadu Act 1/1990 since she was married before the said amendment came into force. The suit was filed in the year 1999. It has
been averred in the plaint that Pachaiammal, the first wife of the Rajagopal died about 12 years prior to the filing of the suit and thereafter the first
defendant Rajagopal married the first plaintiff Kasthuri on 02.09.1992 in Annamalayar Temple, Tiruvannamalai. The plaint averment that
Pachaiammal died 12 years prior to the filing of the suit has not been directly denied. On the other hand, the defendants in their written statement
have stated that she died 11 years back. However, neither the plaintiffs nor the defendants chose to produce the death certificate of Pachaiammal
to show the date of death of Pachaiammal. The written statement of the defendants was filed on 18.04.2000. Even as per the averments found in
the written statement, she should have died in or about 1989. The case of the plaintiffs is that after the death of Pachaiammal, the first defendant
Rajagopal married Kasthuri (first plaintiff) on 02.09.1992. The date of marriage furnished by the plaintiffs is posterior to 1989. Therefore, the
marriage between Rajagopal (first defendant) and Kasthuri (first plaintiff), if it is true, should have taken place only after the death of Pachaiammal
and there cannot be any tenable plea that the marriage is invalid as a bigamous marriage. In fact it is also not the defence case of the defendants.
The case of the defendants is total denial of factum of marriage of the first defendant with the first plaintiff. As such, the plaintiffs were bound to
prove the marriage and in fact they did lead both oral and documentary evidence in proof of the marriage. Besides clear and categorical assertion
of the said fact by PWs. 1 to 4, the plaintiffs have also produced the following documents:
1) Wedding invitation marked as Ex. A1;
2) Receipt for payment made to the temple marked as Ex. A2;
3) Photograph showing the first plaintiff and the first defendant in their wedding marked as Ex. A3; and
4) The negative of Ex. A3 marked as Ex. A4.
In this regard, PW.2-Virutthambal is none other than the mother of the first plaintiff. PW.3-Kannayiram and PW.4-Pandurangan have
corroborated each other and also PW.1-Kasthuri. They spoke in one voice that the marriage was solemnised according to Hindu customs in
Arulmigu Arunachaleswarar Temple, Tiruvannamalai. They have also clearly spoken about the fact that the father of Rajagopal (first defendant)
had died when Rajagopal was five years old and hence it was his junior paternal uncle Annamalai, who arranged for the marriage. The first
defendant, while deposing as DW.1, said that Annamalai was his senior paternal uncle''s son. However, the said Annamalai was not examined on
the side of the defendants. Though the defendants have chosen to examine the mother of the first defendant as DW.2, she did not open her mouth
either admitting or denying the marriage of her son with the first plaintiff. No evidence contradicting the evidence adduced on the side of the
plaintiffs regarding the alleged marriage between the first plaintiff and the first defendant was adduced through DW.2. As against the oral and
documentary evidence adduced by the plaintiffs, which are more than sufficient, there is no other evidence, excepting the interested testimony of
the first defendant, who deposed as DW.1, adduced on the side of the defendants. DW.1 has simply denied the marriage.
In addition to the above the said evidence adduced both oral and documentary, the plaintiffs have also produced Ex. A5-birth certificate of the
second plaintiff, in which the first plaintiff and the first defendant are shown as his parents. The trial court, on a proper appreciation of the said
evidence came to a correct conclusion that the first plaintiff Kasthuri was a legally wedded wife of Rajagopal, the first defendant. Learned lower
appellate judge also, on re-appreciation of evidence, concurred with the said finding of the trial court. The concurrent findings recorded by the
courts below in this regard is neither defective nor infirm, much less perverse and there is no scope for interfering with the same. Similarly, the
findings of the courts below that the second plaintiff Pannerselvam is the son of the first plaintiff and the first defendant born out of lawful wedlock
also deserves no interference.
The plaintiffs have filed a suit claiming partition and separate possession of the second plaintiff share in the suit properties. Admittedly the first
defendant had got ancestral properties and regarding the ancestral properties, the first defendant along with his son 2nd defendant constituted a
coparcenery. On the advent of Tamil Nadu Act 1 of 1990, his daughters, who remained unmarried, namely defendants 3 to 5 also became
coparceners. Only thereafter the second plaintiff was born. The birth of the second plaintiff had caused further enlargement of the coparcenary by
the inclusion of the second plaintiff. Before the Hindu Succession Act was amended by the Central Act 39/2005, the first defendant, his son
namely the 2nd defendant and the second plaintiff and the daughters of the first defendants, who remained unmarried on 31.03.1989 alone were
the coparceners. Even as per the plaint averments, the 6th appellant Apeetha alone got married even before 31.03.1989 and all others got married
subsequently. Hence the trial court rightly held that the second plaintiff and defendants 1 to 5 were entitled to equal shares (1/6th each) as
coparceners. The judgment of the trial court was pronounced on 31.12.2002 much before the cut-off date prescribed in Act 39/2005. Hence the
trial court was perfectly right in holding that the second plaintiff and defendants 1 to 5 were entitled to 1/6th share each in the joint family
properties. However, the proceedings did not come to an end. An appeal was filed by defendants 1 to 5 before the lower appellate court in A.S.
No. 16/2003. During the pendency of the appeal, the first defendant, namely Rajagopal died. The date of death of Rajagopal is crucial regarding
the applicability of the amendment brought to Section 6 of Hindu Succession Act by Act 39 of 2005. Suppose the first defendant had died
subsequent to the cut-off date mentioned in Act 39/2005 (namely 20.12.2004), all his daughters would have become coparceners irrespective of
the fact whether they got married or remained unmarried on the cut-off date. At the outset, the problem would appear to be a simple one. But,
while applying the provisions of the amendment, we should also consider the intention of legislature in bringing about such amendment.
It is quite obvious that the amendment brought to the Hindu Succession Act by Act 39 of 2005 has not been expressly given retrospective
effect. However, the provision does not recognise any partition alleged to have taken place before the cut-off date unless such partition had been
effected by a registered instrument or by a decree of court. The amended section also provides that the amendment would not affect or invalidate
any disposition or alienation including any partition or testamentary disposition of property, which had taken place before the cut-off date. There is
a marked difference between disposition and the recognition of partition. Proviso to Sub-section (1) of Section (6) reads as follows:
provided that nothing contained in this sub section shall affect or invalidate any disposition or alienation including any partition or testamentary
disposition of property, which had taken place before the 20th of December 2004. Sub clause (5) of Section 6 reads as follows:
(5) Nothing contained in this section shall apply to a partition which has been effected before the 20th day of December 2004.
Explanation: For the purpose of this section partition means any partition made by execution of a deed of partition duly registered under the
Registration Act, 1908 (16/1908) or partition effected by the decree of a court. A comparison of the proviso to sub section (2) and the
explanation to sub section (5) will make it clear that the testamentary dispositions made by a person, which had taken effect on his death before the
cut-off date has been left untouched by the amendment irrespective of the fact whether such an instrument effecting testamentary disposition was
registered or not. On the other hand, explanation to sub section (5) refused to recognise a partition, if such partition had not been effected by a
registered deed or by a decree of the court.
In this case, though the decree of the trial court was passed before 20.12.2004, it is only a preliminary decree and the suit has not resulted in a
final decree for partition. Hence we cannot come to a conclusion that there was a partition by a decree of court, which stands protected by sub
section (5) of section 6 of the Hindu Succession Act. Even then the question that remains to be considered is whether the 6th appellant Apeetha
would have become a coparcener by virtue of the amendment brought to the Hindu Succession Act by Act 39 of 2005. The amended provision
has made a daughter a coparcener in the Hindu undivided family governed by Mitakshara law, in which her father is a coparcener. It does not
make a sister of a coparcener as a coparcener along with her brother when the father had died before the cut-off date. While interpreting the State
amendments, it was held therein that, if a coparcener (father) had died prior to the date of the amendment coming into force, succession to his
interest in the coparcenary property had already opened and hence his daughter would not have become a coparcener along with his sons (her
brothers) and that in such cases, she would be entitled to get a share in the share of the father along with other class 1 legal heirs as per the rule of
succession provided in the Act. Any other interpretation will have the effect of opening a Pandora''s box, since rights vested on others on the death
of a coparcener before the amendment would be divested leading to numerous litigations reopening the closed matters. The parliament, in its
wisdom, definitely did not intend to do it. Hence the only possible and plausible interpretation shall be that the amendment does not make a
daughter of coparcener who died prior to the cut off date, as a coparcener and the amendment does not reopen the succession, that had already
opened regarding the interest of a coparcener, who died prior to 20.12.2004.
In this case, admittedly the first defendant Rajagopal died on 26.05.2003, much prior to the cut off date (20.12.2004) prescribed by Act 39 of
2005. The 6th appellant Apeetha had not become a coparcener during the lifetime of Rajagopal (first defendant) even by virtue of Tamil Nadu Act
1/1990, since she was married prior to 31.03.1989. As her father, namely Rajagopal, was not alive on 20.12.2004, the date from which the
amendment effected by Act 39 of 2005 was brought into effect, she did not become a coparcener by virtue of the said Central amendment. Hence
the share claimed by the plaintiffs for the second plaintiff as 1/6th share is correct and the trial court as well as the lower appellate court have rightly
held that the second plaintiff is entitled to 1/6th share in the coparcenary properties as a coparcener. The findings of the courts below in this regard
does not suffer from any defect or infirmity.
As a coparcener, the second plaintiff and defendants 1 to 5 were entitled to 1/6th share each in the joint family properties. However the
learned lower appellate judge, without considering the question whether the first defendant who died during the pendency of the first appeal, died
intestate or had left any will, simply chose to hold that all his non-testamentary legal heirs, namely plaintiffs 1 and 2 and defendants 2 to 5 and
Apeetha (the 5th appellant in the second appeal) were jointly entitled to the 1/6th share of the first defendant equal proportion and thus the lower
appellate judge has held that the first plaintiff is entitled to 1/42 share and the second plaintiff is entitled to 1/6 + 1/42 = 8/42 share. On the basis of
the said finding, the learned lower appellate judge has modified the preliminary decree by directing division of the suit properties into 42 equal
shares and allotment of one such share to the first plaintiff and 8 such shares to the second plaintiff. The said procedure adopted by the learned
lower appellate judge is not based on legal evidence and the same was made simply on an assumption that the first defendant Rajagopal died
intestate. There is no prohibition for a coparcener to make a testamentary disposition of his interest in the coparcenary property. In the unamended
section 6, which stood before the amendment made by Act 39 of 2005, a proviso had been provided to the following effect.
provided that if the deceased had left him surviving a female relative specified in class 1 of the schedule or a male relative specified in that class,
who claims through such female relative, the interest of the deceased in the mitakshara coparcenary property shall devolve by testamentary or
intestate succession as the case may be under this act and not by survivorship.
It is quite obvious that even before the amendment, when coparcener dies leaving female relatives specified in class 1 or male relatives specified in
class 1, who claims through a female relatives specified in class 1, the interest of the deceased coparcener shall devolve by testamentary or
intestate succession. It empowered the coparcener to empower to make testamentary disposition of his interest in the coparcenary property. Even
in the amended provision after the amendment introduced by Act 39/2005, proviso to sub clause (1) says that no disposition or alienation including
any partition or testamentary disposition of property, which had taken place before 20.12.2004 shall be affected or invalidated. Sub clause 3 of
amended section 6 says that after the commencement of Hindu Succession Amendment Act, 2005, a coparcener''s interest in the property of a
joint Hindu family governed by Mitakshara law shall devolve by testamentary or intestate succession as the case may be, under the Act ant not by
survivorship. The section makes it obvious that after the amendment, the right of the coparcener to make a testamentary disposition of his interest
in the coparcenary property is preserved.
In this case, the first defendant himself, during the pendency of the suit, contended that he had executed a Will in respect of the properties
claimed by him to be his separate properties. The said will dated 03.01.1994, which had been executed even prior to the filing of the suit, is a
registered will and it has been marked as Ex. B16. When such is the case, the procedure adopted by the lower appellate judge in directing a
division of the interest of the first defendant in the coparcenary property on the assumption that he died intestate is perverse and unwarranted. The
question of proof of genuineness of and the properties affected by Ex. B16 have not at all been either discussed or decided by the lower appellate
court. In fact, the parties were not given any opportunity of leading evidence in this regard. Hence this court is of the considered view that the
lower appellate court unnecessarily went into the question of succession to the interest of the first defendant in the coparcenary property and held
that the first and second plaintiffs were entitled to 1/7th share each out of the 1/6th share of the first defendant and thus the first plaintiff is entitled to
1/42 share and the second plaintiff''s share will be enhanced to 8/42 share. The said finding cannot be sustained and the same deserves to be
interfered with and set aside.
As the parties did not lead evidence regarding the succession to the interest of the first defendant in the coparcenary property and the question
having arisen only during the course of the first appeal, either the question should have been left open to be decided on a further application for
passing a further preliminary decree or to be left open to be agitated in a separate proceedings/suit. Leaving the question to be left open to be
agitated in a separate proceedings shall be desirable, because the first plaintiff has been granted a decree for past, pendente lite and future
maintenance and a charge has also been created in her favour in respect of the undivided interest of the deceased first defendant. The same would
also make it further complicated, if it is to be enquired into in the present suit itself. Hence this court comes to the conclusion that the question of
succession to the interest of the first defendant in the coparcenary property shall be left open to be agitated by the parties in a separate suit to be
filed for that purpose and that it shall be sufficient to declare the share of the second plaintiff as a coparcener and direct the division of the same
from the shares of the rest of the coparceners as rightly done by the learned trial judge.
We have seen that the second plaintiff and defendants 1 to 5 alone constituted the coparcenary and each one of them was entitled to 1/6th
share in coparcenary property. Though the plaintiffs might have taken a stand that all the properties described as items 1 to 31 in the plaint
schedule are the coparcenary properties, the defendants took a plea that except items 18, 19, 23 and 29. Out of which items 19 and 29 are one
the same. The other properties are not the coparcenary properties. Admittedly, the first defendant inherited 2.00 acres of ancestral land from his
father and all other properties were either purchased in his name or purchased in the name of his mother Aayeeammal. In the written statement
itself the defendants have stated that except 2.00 acres of land, which the first defendant inherited from his father, others are not ancestral
properties. Even as per the averment made in the written statement, items 18, 19 and 23 are the coparcenary properties. The total extent of the
three items comes to 1.31.5 hectares equivalent to 3.25 acres. That itself will show that more extent than the land admittedly inherited by the first
defendant from his father, has been admitted to be the coparcenary property. Even though the defendants had taken a plea that the first defendant
was doing groundnut and paddy business and other properties were purchased by him out of the income derived from the said business the said
contention has not been substantiated by any document showing that he was doing such business and was deriving income from such business.
Hence the courts below have rightly come to the conclusion that the properties inherited by the first defendant from his father yielded income and
the first defendant did not have any other source of income; that from out of the income derived from the ancestral property, the other properties
were purchased by the first defendant in his name and that hence not only the properties inherited by the first defendant from his father, but also the
properties purchased by him are the coparcenary properties, in which, the second plaintiff and defendants 1 to 5 got equal shares.
However, the plaintiffs have also included some of the properties, which had been purchased according to the defendants belonged to
Aayeeammal, the mother of the first defendant. She has deposed as DW.2 and through her Exs. B17, B18 and B19 were marked. The properties
covered by the said documents have been shown as items 3, 6, 7, 14, 19 and 27. So far as the properties that stand in the name of DW.2, namely
the mother of the first defendant are concerned, they cannot be claimed to be the coparcenary property.
Admittedly the properties inherited by the first defendant from his father are the properties covered by Exs. B1 to B3. Though the properties
covered by Ex. B4 to B13 are claimed to be the separate properties of the first defendant, there is no evidence to prove that he had any separate
independent source of income other than the income derived from the ancestral properties. The courts below have rightly come to the conclusion
that the properties described in the plaint schedule except items 3, 6, 7, 14, 19 and 27 (which are the absolute properties of DW.2-Aayeeammal),
all other suit properties are coparcenary properties. The courts below. The courts below have rightly declined the relief of partition in respect of
those items (items 3, 6, 7, 14, 19 and 27) and granted preliminary decree directing the division of other suit items.
So far as the shares of the coparceners are concerned, as pointed out supra, there were six coparceners, namely the 2nd plaintiff and
defendants 1 to 5 and each one of them had got 1/6th share. Though the first defendant died during the pendency of the first appeal, since the
question of succession to his interest has not been canvassed by adducing evidence, that too when Ex. B16-registered Will had been produced by
the first defendant himself while he was alive, the lower appellate court ought not to have ventured to decide the question of succession to the 1/6th
interest of the first defendant and the same ought to have been left open to be agitated in separate proceedings. For all the reasons stated above,
this court comes to the conclusion that the second appeal deserves to be allowed in part and the decree of the lower appellate court is liable to be
modified by setting aside that part of the decree providing alteration of shares consequent to the death of the first defendant and restoring the
preliminary decree for partition passed by the trial court directing division of the suit properties, except items 3, 6, 7, 14, 19 and 27 of the plaint
schedule, into six equal shares and allotment of one such share to the second respondent/second plaintiff. The decree granted in favour of the first
plaintiff for maintenance and charge over the interest of the first defendant in the suit items 3, 6, 7, 14, 19 and 27 shall stand confirmed. The decree
for maintenance and the preliminary decree for partition granted by the trial court shall stand confirmed without any modification, with an
observation that the parties are to work out their claims regarding succession to the 1/6th interest of the first defendant who died pending disposal
of the first appeal is a separate suit.
In the result, the second appeal is allowed in part and the decree of the lower appellate court is modified by setting aside that part of the decree
providing alteration of shares consequent to the death of the first defendant and restoring the preliminary decree for partition passed by the trial
court directing division of the suit properties, except items 3, 6, 7, 14, 19 and 27 of the plaint schedule, into six equal shares and allotment of one
such share to the second respondent/second plaintiff. The decree granted in favour of the first plaintiff for maintenance and charge over the interest
of the first defendant in the suit items 3, 6, 7, 14, 19 and 27 shall stand confirmed. The decree for maintenance and the preliminary decree for
partition granted by the trial court shall stand confirmed without any modification, with an observation that the parties are to work out their claims
regarding succession to the 1/6th interest of the first defendant who died pending disposal of the first appeal is a separate suit. There shall be no
order as to costs.