Arunachala Gounder (Dead) Vs Ponnusamy, SC 2022

FACTS – Suit for partition was filed by Thangammal, daughter of Ramasamy Gounder, claiming 1/5th share in the suit property on the allegations that the plaintiff and defendant nos. 5 and 6, namely, Elayammal and Nallammal and one Ramayeeammal are sisters of Gurunatha Gounder, all the five of them being the children of Ramasamy Gounder. The said Ramasamy Gounder had an elder brother by the name of Marappa Gounder. Ramasamy Gounder, predeceased his brother Marappa Gounder who died on 14.04.1957 leaving behind the sole daughter by the name of Kuppayee Ammal who also died issueless in 1967. Further case set up by the plaintiff/appellant was that after the death of Marappa Gounder, his property was inherited by Kuppayee Ammal and upon her death in 1967, all the five children of Ramasamy Gounder, namely, Gurunatha Gounder, Thangammal (Original Plaintiff now represented by legal heir), Ramayeeammal, Elayammal and Nallammal are heirs in equal of Kuppayee and entitled to 1/5th share each.

Gurunatha Gounder, died leaving behind defendant nos. 1 to 4 (Respondents herein) as heirs and legal representatives. Ramayeeammal died leaving behind defendants 7 to 9. The plaintiff-appellant, Thangammal, died leaving behind, appellant nos. 1, 3 and 4 herein and Appellant no. 1, Arunachala Gounder, since having died is represented by her legal representatives appellant no. 1, Venkatachalam and appeallant no. 2, A. Mottaiyappan.

The defence set up by the defendant-respondents was that Marappa Gounder died on 11.05.1949 and not on 14.04.1957 as alleged by the plaintiff-appellant and as per the provisions of Hindu Law prevailing prior to 1956, Gurunatha Gounder was the sole heir of Marappa Gounder and accordingly, he inherited the suit properties and was in possession and enjoyment of these properties and after his death the respondents herein, were continuing as lawful owners.

It is an undisputed fact between the parties that the property in question i.e., the suit property, was independently purchased by Marappa Gounder in the year 1938 through the process of a Court auction and thus, it was his independent property. However, there was a issue between the parties in respect of the date of death of Marappa Gounder. The plaintiff – appellant asserted the date of death as 14.04.1957, whereas the defendant-respondent pleaded the date of death as 15.04.1949.

The Trial Court after considering the evidence brought on record of the case by the parties concluded that Marappa Gounder died on15.04.1949 and thus, the suit property would devolve upon the sole son of deceased Ramasamy Gounder, the deceased brother of Marappa Gounder by survivorship and the plaintiff-appellant had no right to file the suit for partition and, accordingly, dismissed the suit.

The findings recorded by the Trial Court particularly in respect of the date of death of Marappa Gounder in 1949 was confirmed by the High Court in the first appeal and the decree dismissing the suit for partition was affirmed holding that the property would devolve upon the defendant by way of survivorshipsurvivorship.


CAUSE – judgment and order dated 21.01.2009 passed by the High Court of Judicature at Madras (hereinafter referred to as ‘High Court’) dismissing a regular First Appeal being A.S. No. 351 of 1994 filed under Section 96 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 01.03.1994 rendered by the Trial Court dismissing Original Suit No. 295 of 1991 for partition filed by the appellant herein, claiming 1/5th share in the suit properties.


ARGUEMENTSShri P.V. Yogeswaran, learned counsel for the appellant submits that since the property was purchased through Court auction sale by the Marappa Gounder on 15.12.1938, hence, it is his independent property and it was never considered as a joint family property, as such on death of Marappa Gounder, this property would devolve by succession upon his daughter, Kupayee Ammal, who died in the year 1967. He furthersubmitted that under the law of Mitakshara, the right to inheritance depends upon propinquity i.e., proximity of relationship. Since, the daughter has closer proximity of relationship, she would inherit the property from the father instead of the father’s brother’s son and daughter.

He further points out that there are three classes of heirs recognized by Mitakshara, namely, (a) Gotrajasapindas, (b) Samanodakas and (c)Bandhus. The first class succeeds before the second and the second succeeds before the third. To support the contentions, he made a reference to Mulla Hindu Law 23rd Edition. He also submitted that under the Hindu Law, a daughter is not disqualified to inherit in separate property of her father and when a male Hindu dies without a son leaving only daughter, his separate property would devolve upon the daughter through succession and the property will not devolve upon brother’s son through survivorship and the Courts below have wrongly applied the principles of Hindu Law and dismissed the suit.

Shri K.K. Mani, learned counsel representing respondents submittedthat the property in question was purchased by Marappa Gounder in Court auction sale out of the family funds and thus, it was a joint property, and on his death, since he had no male heir, the defendant as a coparcener succeeded to the estate. He further submitted that the Trial Court after scrutinizing the evidence brought on record by the parties came to the conclusion that the paternal uncle of plaintiff, Marappa Gounder, died prior to the enforcement of Hindu Succession Act, 1956 and, therefore, the plaintiff and other sisters of the plaintiff were not the heirs as on the date of death of Marappa Gounder in the year 1949 and thus, plaintiff was not entitled to the partition of 1/5th share in the suit properties, and thus, the suit was rightly dismissed. He further submits that when the date of death of Marappa Gounder, was confirmed to be in the year 1949, the Succession to his properties would open in the year 1949 when Kupayee Ammal, the daughter of Marappa Gounder, was not having any right to inherit the property left by her deceased father. The only heir available at the time of death of Marappa Gounder was Guranatha Gounder, the son of Ramasamy Gounder, who was none other than the father of the Defendants 1 to 4. Once the properties of Marappa Gounder devolved upon Guranatha Gounder, it became his property and, therefore, it could not be made the subject matter of the partition after the promulgation of Hindu Succession Act, 1956. He also submitted that neither any issue was framed nor any evidence was led by the plaintiff-appellant throughout the entire proceedings to establish that property purchased in the Court auction in the year 1938 was a self-acquired property of Marappa Gounder and thus, it would be presumed that it was a joint family property leaving no rights in his daughter to inherit the same.

ISSUE – whether such suit property will devolve on to the daughter upon the death of her father intestate by inheritance or shall devolve on to father’s brother’s son by survivorship?


DECISION – The determination and adjudication of the issue depends upon the answers to the following questions :-

1) What is the nature of the property what would be the course of succession if it is a separate property as opposed to undivided property? 2) Whether a sole daughter could inherit her father’s separate property dying intestate? And if so – 3) What would be the order of succession after the death of such daughter?

Right of a widow or daughter to inherit the self-acquired property or share received in partition of a coparcenary property of a Hindu male dying intestate is well recognized not only under the old customary Hindu Law but also by various judicial pronouncements and thus, our answer to the question Nos. 1 and 2 are as under :-

“If a property of a male Hindu dying intestate is a self- acquired property or obtained in partition of a co-parceneryor a family property, the same would devolve by inheritance and not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preference to other collaterals.”

In the case at hands, since the property in question was admittedly the self-acquired property of Marappa Gounder despite the family being in state of jointness upon his death intestate, his sole surviving daughter Kupayee Ammal, will inherit the same by inheritance and the property shall not devolve by survivorship.

Insofar as, question no. 3 is concerned under the old customary Hindu Law, there are contradictory opinions in respect of the order of succession to be followed after the death of such a daughter inheriting the property from his father. One school is of the view that such a daughter inherits a limited estate like a widow, and after her death would revert back to the heirs of the deceased male who would be entitled to inherit by survivorship. While other school of thought holds the opposite view. This conflict of opinion may not be relevant in the present case inasmuch as since Kupayee Ammal, daughter of Marappa Gounder, after inheriting the suit property upon the death of Marappa Gounder, died after enforcement of Hindu Succession Act, 1956 (hereinafter referred to as ‘The Act of 1956’), which has amended and codified the Hindu Law relating to intestate succession among Hindus. The main scheme of this Act is to establish complete equality between male and female with regard to property rights and the rights of the female were declared absolute, completely abolishing all notions of a limited estate. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. The Act lays down a uniform and comprehensive system of inheritance and applies, inter-alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri Laws. The Act applies to every person, who is a Hindu by religion in any of its forms including a Virashaiva, a Lingayat or a follower of the Brahmo Pararthana or Arya Samaj and even to any person who is Buddhist, Jain or Sikh by religion excepting one who is Muslim, Christian, Parsi or Jew or Sikh by religion. Section 14 of the Act of 1956 declares property of a female Hindu to be her absolute property.

The legislative intent of enacting Section 14(I) of the Act was to remedy the limitation of a Hindu woman who could not claim absolute interest in the properties inherited by her but only had a life interest in the estate so inherited.

The scheme of sub-Section (1) of Section 15 goes to show that property of Hindu females dying intestate is to devolve on her own heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). Sub- Section (2) of Section 15 carves out exceptions only with regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter orchildren of the pre-deceased son or daughter.

Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. In case, a female Hindu dies leaving behind her husband or any issue, then Section 15(1)(a) comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

The basic aim of the legislature in enacting Section 15(2) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source.

Section 15(1)(d) provides that failing all heirs of the female specified in Entries (a)-(c), but not until then, all her property howsoever acquired will devolve upon the heirs of the father. The devolution upon the heirs of the father shall be in the same order and according to the same rules as would have applied if the property had belonged to the father and he haddied intestate in respect thereof immediately after her death. In the present case the since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughters being Class-I heirs of their father too shall be heirs and entitled to 1/5th share each in the suit properties.

Applying the above settled legal proposition to the facts of the case at hands, since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughter’s being Class-I heirs of their father too shall also be heirs and entitled to 1/5th Share in each of the suit properties.

Unfortunately, neither the Trial Court nor the High Court adverted itself to the settled legal propositions which are squarely applicable in the facts and circumstances of the case.

Thus, the impugned judgment and decree dated 01.03.1994 passed by the Trial Court and confirmed by the High Court vide judgment and order dated 21.01.2009 are not liable to be sustained and are hereby set aside.

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