The Madras High Court has held that a partition suit remains pending till actual division by metes and bounds under a final decree, and therefore, subsequent events such as birth and death of a sharer can be taken into account for modifying the preliminary decree.

Applying the principle that even children born from an invalid marriage are entitled to a share in the separate property of their father, the Court partly modified the partition decree and granted them shares in the deceased father’s portion.

The Court was hearing second appeals arising from a partition suit in which the plaintiff sought a share in ancestral properties. The courts below had treated the suit properties as joint family properties and granted shares to the plaintiff and another daughter, while excluding two sons on the finding that they were born from an invalid marriage.

A Bench of Justice S. Sounthar, while holding that the death of the father pending first appeal had to be considered, observed that “the Trial Court committed an error in not taking into consideration the subsequent event namely death of 1st 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 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.”

Advocate D. Shivakumaran appeared for the appellants, while Advocate D. Sathya appeared for the first respondent and Advocate R.P. Ruban Chakravarthy appeared for the second respondent.

Background

The dispute concerned a partition claim over properties which the plaintiff asserted were ancestral. The plaintiff and one defendant were daughters of the first defendant through his first wife. Two other defendants were born to him through another woman, whose marriage with him was disputed on the ground that it had taken place during the subsistence of the earlier marriage.

The trial court found the properties to be ancestral and granted one-fourth share each to the plaintiff, the father, one son and one daughter. In appeal, the first appellate court modified the decree by granting one-third share each to the plaintiff and the daughter, while holding that the two sons could not claim an equal share in the joint family properties.

Before the High Court, the appellants argued that the properties were separate because they had been assigned by the Government. They also contended that, even assuming the properties were ancestral and the two sons were not legitimate children, the death of the father during the pendency of the first appeal created a notional partition in his favour, and his one-third share had to be distributed among all his surviving heirs.

The respondents opposed the appeals and argued that the first appellate court had correctly held that the two sons were not entitled to claim equal share in the joint family properties.

Court’s Observations

The Court first examined the nature of the properties and affirmed the finding that they had acquired the character of joint family properties. It noted that the assigned properties had been blended with other family properties and partitioned under a family partition deed.

The Court stated: “Ex.A1 is a Partition Deed between the 1st 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 1st defendant and other family properties were partitioned under Ex.A1 and the suit properties have been allotted to the share of 1st defendant. The 1st 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 assigned in favour of the 1st 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 partitioned and in the said partition, the assigned properties were allotted to the share of 1st 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.”The Court then considered whether the two sons could be treated as legitimate children for claiming equal share in the ancestral property. It noted that the plea that the second marriage took place during the subsistence of the first marriage had not been specifically denied, and no evidence had been produced to prove that the second marriage was solemnised after divorce.

The Court observed: “The 1st defendant is the best person to lead evidence with regard to the date of marriage with 4th appellant-Mani and with regard to the legitimacy of defendants 2 and 3. The plaintiff has taken a stand that the marriage of 1st defendant with Mani had taken place during continuance of his marriage with Valliammal. However, the defendants have not produced any evidence available on record to establish the marriage of 1st 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 marriage of 1st defendant with Mani is valid, the defendants 2 and 3 can only be treated as illegitimate children of 1st defendant through the above said Mani.”

On that basis, the Court upheld the first appellate court’s view that they could not claim equal share in the joint family properties along with the plaintiff and the other daughter.

The Court held: “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 properties along with plaintiff and 4th 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 decree for 1/3rd share in favour of plaintiff in the suit properties.”

The decisive issue, however, was the death of the father during the pendency of the first appeal. The Court held that since a partition suit continues till final division, the preliminary decree could be modified to account for the subsequent death of a sharer.

Relying on Revanasiddappa v. Mallikarjun (2023), the Court held that children born from an invalid marriage are entitled to an equal share in the separate property of their father. Since a notional partition had opened in favour of the father, his one-third share had to be divided equally among the plaintiff, the daughter and the two sons.

The Court noted that the plaintiff and the daughter would each get their original one-third share plus one-twelfth from the father’s share, taking their total share to five-twelfths each, while the two sons would get one-twelfth each.

The Court also invoked appellate power to modify the decree to make the entire partition workable, even though the respondents had not filed an appeal for enhancement of their shares.

The Court underscored: “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 surviving legal heirs, the share already allotted to the plaintiff and 4th 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 heirs viz., plaintiff and 4th 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 the share allotted to the plaintiff and 4th defendant as 5/12 share each in the suit properties.”

Conclusion

The High Court partly allowed the second appeals and modified the decree. The plaintiff and the daughter were held entitled to a five-twelfths share each in the suit properties, while the two sons were held entitled to one-twelfth share each. The connected civil miscellaneous petitions were closed, with no order as to costs.

Cause Title: Lakshmana Gounder (Since Deceased) & Others v. Selvi & Another (Neutral Citation: 2026:MHC:2841)

Appearances

Appellants: Advocate D. Shivakumaran

Respondents: Advocate D. Sathya for M/s. Zeenath Begum, Advocate R.P. Ruban Chakravarthy for M/s. S. Kaithamalai Kumaran

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