Case Note & Summary
The judgment arises from a first appeal under Section 96 of the Code of Civil Procedure, 1908, challenging the preliminary decree dated 25.02.2016 passed by the III Additional District Court, Salem, in a suit for partition. The appellant/plaintiff, a daughter, claimed 1/7 share in ancestral and joint family properties of her deceased father, Appavu Asari, who died intestate on 10.05.2004. She asserted that she and defendants 1,2,5,6,7 each had 1/7 share, and defendants 3 and 4 (children of a predeceased sister) together collectively held 1/7 share. The defendants resisted, contending that the sons (defendants 5 and 6) were coparceners by birth and each had a 1/3 share in the properties allotted to their father under a prior partition deed dated 09.06.1992, and that the plaintiff, as a daughter, could inherit only from the father's 1/3 share, thereby limiting her to 1/18. The Trial Court accepted the defendants' plea and granted a preliminary decree for 1/18 share, holding that the plaintiff could not claim coparcenary rights under the Hindu Succession (Amendment) Act, 2005 (Central Act 39 of 2005) because the father died before its commencement, and also that her marriage in 1976 disentitled her to benefits under the Tamil Nadu Act 1 of 1990. During the appeal, the plaintiff filed a civil miscellaneous petition under Order XLI Rule 27 CPC to receive additional evidence—a marriage greeting card and an Aadhar card—to prove that her sister's marriage occurred in 1982, which would impact the application of the Tamil Nadu Act. The High Court received the Aadhar card (Ex.A.11) as material evidence, noting it was a statutory document and was not seriously disputed. On merits, the court relied on the binding Supreme Court decision in Vineetha Sharma v. Rakesh Sharma, (2020) 9 SCC 1, which settled that a daughter becomes a coparcener by birth and acquires an equal share in coparcenary property, irrespective of whether the father was alive on 09.09.2005. The court rejected the Trial Court's reasoning and held that the plaintiff was a coparcener entitled to a share equal to that of the sons. Applying the doctrine of notional partition under the proviso to Section 6 of the Hindu Succession Act, the court calculated that Appavu Asari held a 1/3 share in the coparcenary property; on his death, that share devolved on his six Class I heirs (widow, plaintiff, defendants 1,2,5,6,7), giving each 1/18 share. Additionally, as a coparcener, the plaintiff would have received a share on notional partition of the father's interest before his death, resulting in a total 1/9 share. The court further clarified that the Tamil Nadu Act 1 of 1990 could not override the central amendment and that the date of the daughter's marriage was irrelevant. Accordingly, the appeal was partly allowed. The preliminary decree was modified to declare the plaintiff entitled to 1/9 share in the suit properties, with a preliminary decree passed in such terms; the rest of the Trial Court's decree stood confirmed. The judgment underscores the retroactive and overriding effect of the central amendment and reinforces the equal coparcenary rights of daughters.
Headnote
A) Hindu Law – Coparcenary Rights – Daughter's Share – Hindu Succession Act, 1956 (Section 6 as amended by Central Act 39 of 2005 – Daughter is a coparcener by birth in the same manner as a son and is entitled to equal share in coparcenary property; the father need not be alive on the date of commencement of the Amendment Act (09.09.2005); the contrary view taken by the Trial Court that the daughter cannot claim benefit because the father died before the Amendment is legally erroneous; the Supreme Court's decision in Vineetha Sharma v. Rakesh Sharma, (2020) 9 SCC 1, is binding and settles the law; Held that the plaintiff is entitled to a share as a coparcener, with notional partition being assumed immediately prior to the father's death, and her share works out to 1/9 in the suit properties. (Paras 15, 26-31) B) Civil Procedure – Additional Evidence in Appeal – Order XLI Rule 27, Code of Civil Procedure, 1908 – Conditions for receiving documents at appellate stage – The court may receive additional evidence if the document is material to the decision, the party was prevented from producing it earlier despite due diligence, and admitting it would serve the cause of justice; Here, an Aadhar Card of the fourth defendant, a statutory document, was produced to establish the date of marriage of the plaintiff's sister, which was relevant to determine applicability of Tamil Nadu Act 1 of 1990; Held that the document is material and its non-production before the Trial Court was justified because it was in the custody of ex-parte defendants; accordingly, the document was received and marked as Ex.A.11. (Para 14) C) Hindu Law – Computation of Share – Notional Partition – Section 6, Hindu Succession Act, 1956 – Where the father was a coparcener in ancestral property, upon his death, a notional partition is deemed to have taken place immediately before his death; the share that would have been allotted to the father is then treated as his separate property and devolves upon his Class I heirs; In the present case, on the date of the registered partition deed (Ex.A.1), the coparcenary consisted of the father and his two sons; therefore, on notional partition, the father's share is 1/3, which devolves equally on his six Class I heirs, giving each 1/18; additionally, as a coparcener, the plaintiff is also entitled to a share on the notional partition of the father's share, resulting in a total 1/9 share in the suit properties; Held that the plaintiff is entitled to a preliminary decree for 1/9 share instead of 1/7 as claimed or 1/18 as awarded by the Trial Court. (Paras 26-31) D) Hindu Law – Conflict between State and Central Amendments – Tamil Nadu Act 1 of 1990 v. Central Act 39 of 2005 – The Tamil Nadu Act recognized daughters as coparceners from 25.03.1989, but with a condition that the marriage of the daughter must have taken place after the commencement of that Act; the Central Act 39 of 2005 introduced a uniform coparcenary right for daughters irrespective of the date of marriage, and its provisions are more beneficial; following Vineetha Sharma, the plaintiff cannot be denied coparcenary rights under the Central Act on the ground that her marriage occurred in 1976; Held that the Trial Court erred in applying the Tamil Nadu Act and ignoring the overriding effect of the Central Amendment; the plaintiff is entitled to the benefit of the Central Act. (Paras 8, 15, 30)
Issue of Consideration
Whether the plaintiff is entitled to a 1/7 share or correct share in the suit properties as a coparcener under the Hindu Succession Act as amended by Central Act 39 of 2005, and whether additional evidence should be received in appeal.
Final Decision
The First Appeal is partly allowed. The Judgment and Decree of the Trial Court are modified. The plaintiff is entitled to a 1/9 share in the suit properties instead of the 1/7 share claimed or the 1/18 share awarded by the Trial Court. A preliminary decree for partition and separate possession of the 1/9 share is granted. In all other respects, the Trial Court's decree stands confirmed. No order as to costs. The civil miscellaneous petition (CMP No.17064 of 2025) is partly allowed, receiving the fourth defendant's Aadhar Card as Ex.A.11.
Law Points
- Legal points not extracted
- Daughter becomes coparcener by birth under Section 6 of Hindu Succession Act as amended by Central Act 39 of 2005
- Right to equal share as son irrespective of father being alive on commencement date
- Notional partition to be assumed immediately prior to father's death
- Tamil Nadu Act 1 of 1990 does not restrict daughter's coparcenary rights under Central Act
- Additional evidence under Order XLI Rule 27 CPC may be received if material to resolve dispute and non-production earlier justified
