Madras High Court
M. Iyyanar vs Kalvikarasi on 24 July, 2026
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
A.S.No.540 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 16.07.2026
Delivered on : 24.07.2026
CORAM :
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
AND
THE HONOURABLE MR. JUSTICE M. JOTHIRAMAN
A.S.No.540 of 2024
and
C.M.P.No.16374 of 2024
1.M.Iyyanar
2.Sarala
3.S.Kumar
4.Chidambaram
5.Prabu ... Appellants
Vs.
1.Kalvikarasi
2.Arivukodi
3.Revathi
4.Sivaranjani
5.Kalavathi
6.Sivagami ... Respondents
Prayer : Appeal Suit filed under Section 96 r/w. Order XLI Rule 1 of the
Code of Civil Procedure against the judgment and decree passed by the
learned I Additional District Judge, Tindivanam, in O.S.No.43 of 2021,
dated 29.09.2023.
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For Appellants : Mr.T.Murugamanickam
Senior Counsel
for Mr.B.Gurunathan
For R1 to R6 : Mr.P.Sankaranarayanan
Amici Curiae : Mr.S.Parthasarathy, Senior Counsel
Mr.S.Mukunth, Senior Counsel
Mr.V.Raghavachari, Senior Counsel
Mr.G.Masilamani, Senior Counsel
Mr.R.Sankaranarayanan,
Senior Counsel
Mr.P.Valliyappan, Senior Counsel
Mr.N.Manokaran
Mr.Sharath Chandran
JUDGMENT
N. SATHISH KUMAR, J.
Challenging the decree and judgment of the learned I Additional
District Judge, Tindivanam, in O.S.No.43 of 2021, dated 29.09.2023,
granting a preliminary decree allotting 1/5 share each to the plaintiffs 1 to 3,
4, 5 and 6 in Item Nos.4 to 25 of the suit properties; and 1/25 share each in
Item Nos.1 to 3 of the suit properties; and also declaring the documents
bearing Nos.2615 of 2013 dated 22.05.2013, 5287 of 2013 dated 09.10.2013,
5289 of 2013 dated 09.10.2013 and 2710 of 2020 dated 10.07.2020 as null
and void, all the defendants in the suit have filed the above Appeal.
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2.For the sake of convenience, the parties are referred to as per their
ranking before the trial Court.
3.Following are the brief facts of the plaintiffs’ case :
The suit properties originally belonged to one Murugesa Gounder. He
died on 03.06.2007 leaving behind one son, who is the 1st defendant, and
four daughters, namely, Kalavathi, Sivagami, Sundari and Anbazhagi.
Sundari died on 16.05.2019. Another daughter Anbazhagi predeceased the
father on 03.03.1998. The plaintiffs 1 to 3 are the legal heirs of deceased
Sundari. The 4th plaintiff is the daughter of deceased Anbazhagi.
4.It is the case of the plaintiffs that the suit properties were acquired
by the said Murugesa Gounder with the aid of income from ancestral
properties and hence, the suit properties are ancestral properties. After the
death of Murugesa Gounder, the 1st defendant (son), without the consent of
the plaintiffs, alienated various items of the suit properties in favour of
defendants 2 to 4 by executing three sale deeds and one settlement deed in
favour of his son, 5th defendant. It is the contention of the plaintiffs that the
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st
1 defendant had no exclusive right to deal with the properties and the
alienations made by the 1st defendant are not binding on the plaintiffs’
shares. Though the plaintiffs demanded for partition, the 1 st defendant did
not accede to their request and hence, they filed the present suit seeking
partition.
5.The 1st defendant filed his written statement which was adopted by
the defendants 2 to 5 in the suit. The defendants resisted the suit by
contending that there had been a family arrangement in the year 2004, in
which, the daughters were given various movable and immovable properties
in lieu of their shares and they had accepted for allotting suit Item Nos.4 to
25 in favour of the 1st defendant. It was further contended that the plaintiffs,
who are aware of the family arrangement, were estopped from re-opening
the same. It is the further stand of the defendants that Item Nos.1 to 3 did
not exclusively belong to Murugesa Gounder, but stood in the name of joint
patta of Murugesa Gounder and his brothers and therefore, the extent of
share of Murugesa Gounder is not known. It is also the stand of the
defendants that the suit is bad for partial partition, as several ancestral
properties have been deliberately omitted from the plaint schedule. Since
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necessary parties have not been impleaded, the suit is also bad for non-
joinder. The defendants also pleaded ouster and adverse possession
contending that the plaintiffs have been excluded from possession for
several years and their challenge to the alienations are barred by law.
6.Based on the above pleadings, the trial Court framed the following
issues :
i. Whether the daughters of deceased Murugesa Kounder were
already allotted with certain movables and immovable
properties in lieu of their share ?
ii. Whether such allotment of shares as above has been accepted
and acted upon by the plaintiffs ?
iii. Whether the oral partition during chithirai month of 2004 said
to have been made is true, valid and acted upon ?
iv. Whether the suit properties have been described properly in
respect of the shares of deceased Murugesa Kounder ?
v. Whether the suit is bad for non joinder of necessary parties ?
vi. Whether the plaintiffs are entitled for partition and allotment of
1/5 shares to them ?
vii.Whether the relief of permanent injunction prayed in this suit
maintainable as the relief vanishes when the suit is disposed ?
viii. Whether the plaintiffs are entitled for the relief of
declaration to declare the alienation by way of sale andPage 5 of 44
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settlement on various dates on 22.05.2013, 09.10.2013 (two
transactions) and on 10.07.2000 as null and void as prayed in
Prayer No.5 ?
ix. Whether the relief of declaration as null and void in respect of
transactions dated 09.10.2013 have been made within the
period of limitation ?
x. Whether the suit has been valued properly and whether correct
Court fees has been paid ?
xi. To what other relief does the plaintiffs are entitled to ?
7.On the side of the plaintiffs, the 6th plaintiff and 5th plaintiff were
examined as P.W.1 and P.W.2 respectively and Exs.A1 to A17 were marked.
On the side of the defendants, the 1 st defendant was examined as D.W.1 and
one Karunanithi was examined as D.W.2 and Exs.B1 to B3 were marked.
8.Based on the evidence and materials on record, the trial Court
granted a preliminary decree allotting 1/5 share each to the plaintiffs 1 to 3,
4, 5 and 6 in suit Item Nos.4 to 25 and allotting 1/25 share each in suit Item
Nos.1 to 3 and also annulled the documents dated 22.05.2013, 09.10.2013,
09.10.2013 and 10.07.2020.
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9.Challenging the judgment and decree of the trial Court, the
defendants in the suit have filed the above Appeal.
10.The main contention raised by Mr.T.Murugamanickam, learned
Senior Counsel appearing for the appellants, before this Court is that one of
the daughters in this case, namely, Anbazhagi, predeceased her father on
03.03.1998, even before the commencement of the Hindu Succession
(Amendment) Act, 2005, (Act 39 of 2005) i.e., 09.09.2005. It is his
contention that the children of the predeceased daughter (4 th plaintiff) who
was not alive as on the date of commencement of Hindu Succession
(Amendment) Act, 2005, i.e., 09.09.2005, are not entitled to shares as
coparcener as declared by the trial Court. To claim the benefit under Act 39
of 2005, the daughters must be alive. Though the status of coparcener was
extended to the daughters by birth who are born on or before the Act 39 of
2005, the fact remains that, to claim the benefit of the Act 39 of 2005, the
daughters who are elevated as coparcener should be alive as on the date of
commencement of the Amendment Act. Therefore, when the daughter was
not alive on that date, her children are not entitled to shares that may be
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allotted to the daughter who was not alive on 09.09.2005. This aspect has
not been addressed by the trial Court. Further, the learned Senior Counsel
has also placed reliance on the judgment of the Hon’ble Supreme Court in
Vineeta Sharma v. Rakesh Sharma and others reported in (2020) 9 SCC 1,
wherein, the Hon’ble Supreme Court has clearly held that the daughter
should be alive on 09.09.2005 to claim equal share as that of a son. Hence,
he would submit that the trial Court’s decision is not proper. At the most,
according to him, the predeceased daughter’s legal heirs would be entitled to
1/25 share in the properties, but not as declared by the trial Court.
11.When an important issue is raised by the learned Senior Counsel
appearing for the appellants, this Court requested the learned Senior Counsel
of the Bar to assist the Court to address the issue which has a wide
ramification.
12.Accordingly, Mr.S.Parthasarathy, learned Senior Counsel,
appearing as Amicus Curiae, would submit that the daughter need not be
alive on the date of enforcement of the amendment for her to claim
coparcenary right over her father’s property, for the reason that coparcenary
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is a right that is acquired through birth according to Vineeta Sharma’s case
and hence, on the date of Act 39 of 2005 came into force, she need not be
alive since she acquires her right by birth. He relied upon the decision of the
Hon’ble Supreme Court in Prakash and others v. Phulavathi and others
reported in (2016) 2 SCC 36 assigning the same reason, which was later
overruled by the Hon’ble Supreme Court in Vineeta Sharma’s case.
According to him, the Full Bench of the Bombay High Court in
Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari
reported in AIR 2014 Bom 151, which holds that the daughter should be
alive as on the date of commencement of the Amendment Act, had not
considered the real intention of the legislation. It is his contention that,
when interpreting a Statute relating to womenfolk, due weightage should be
given to the Constitutional requirement of equality and status. He further
discussed the description of the term “living coparcener” in line with the
judgment in Prakash v. Phulavathi (supra). It is his further contention that
the right provided in the amendment is not to resurrect the past, but to
recognise an antecedent event for the conferral of rights, prospectively. It is
his further contention that the Amendment Act has enlarged Class I of the
Schedule to add four heirs, viz., the son and daughter of a predeceased
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daughter of a predeceased daughter, the daughter of a predeceased son of a
predeceased daughter and the daughter of a predeceased daughter of a
predeceased son. Thereby, it extended recognition to two generations of a
predeceased daughter’s line, exactly as had always been the case for a
predeceased son’s line. Therefore, for all practical purposes, the 2005
amendment sought to bring about complete parity between the son’s line and
the daughter’s line, both in life and in death. Hence, he would submit that
the Hon’ble Supreme Court in Vineeta Sharma‘s case has held that the
substituted Section 6 confers the status of coparcener on the daughter born
before or after the amendment in the same manner as a son, with the same
rights and liabilities, and the rights can be claimed by a daughter born earlier
with effect from 09.09.2005 subject to the savings in the proviso to Section
6(1) and Section 6(5). However, according to him, since the right in
coparcenary is by birth, it is not necessary that the father coparcener should
be living as on 09.09.2005; the notional partition under the old proviso never
disrupted the coparcenary; the daughters must be given equal shares even in
pending final decree proceedings or appeals notwithstanding a preliminary
decree; and a plea of oral partition unsupported by public documents cannot
defeat the daughter’s right. Hence, according to him, a coparcener dying
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leaving Class I heirs transmits his or her interest ascertained on a notional
partition by intestate succession to those heirs. Her children, thus, take the
share she would have held, precisely as the children of a coparcener son
dying in 1998 would have taken his. Further, according to him, the cut off
date, i.e., 09.09.2005 is relevant only to see when the right becomes
enforceable. It does not define the class of persons whose birthright the Act
recognises. The only exclusions Parliament enacted are the proviso to
Section 6(1) and Section 6(5). Therefore, it is his contention that the Courts
should not provide for a further exclusion of daughters dying before
09.09.2005, which the Statute does not mandate. Since the daughter, by the
legal fiction, is granted the status of coparcener by birth right in the ancestral
property being an antecedent, Class I heirs of predeceased daughters are also
to be treated equal on par with other coparceners.
13.Mr.N.Manokaran, learned counsel, appearing as Amicus Curiae,
would submit that a woman, who predeceased before the commencement of
the amendment, has a coparcenary right in the property, emphasizing that the
amendment has a retroactive operation and that the children of the
predeceased daughter would also acquire rights as conferred in the deemed
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partition after the death of the father. It is his contention that, though a
widow or daughter, as a Class I heir, was entitled to inherit a share in the
property of a deceased coparcener, and a widow could also claim a share
upon partition, a daughter was not recognised as a coparcener. By the
amendment to Section 6, the goal of gender justice, as constitutionally
envisaged, is achieved, though belatedly, and the prevailing discrimination is
taken care of. Hence, according to him, the father need not be alive on the
date of amendment. Further, since the daughter has been conferred the right
of coparcener by unobstructed heritage, according to him, the daughter also
need not be a living coparcener on the date of amendment. Hence, he would
submit that, denying the shares to the legal heirs of predeceased daughter
would violate Articles 14, 15 and 39 of the Constitution of India.
14.Mr.S.Mukunth, learned Senior Counsel appearing as Amicus
Curiae, pointing out that the predeceased daughter is not entitled to the
coparcenary right, would submit that Section 6(2) speaks about the incidents
of coparcenary ownership, whereas Section 6(3) is the tilting point where the
coparcenary right is recognised. He would further submit that the daughter
should be alive on the date of 09.09.2005 when the Amendment Act came
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into effect. He has also relied upon the judgment of the Hon’ble Supreme
Court in Prasanta Kumar Sahoo and others v. Charulatha Sahu and
others reported in (2023) 9 SCC 641 and would submit that the children of
the predeceased daughter who died prior to the Act coming into force
certainly are not entitled to share.
15.Mr.V.Raghavachari, learned Senior Counsel appearing as Amicus
Curiae, would submit that the object of the amendment is only to extend the
coparcenary rights to the daughters, but not to include the legal
representatives of the predeceased daughters. The right granted under
Section 6(1) of Act 39 of 2005 is disposed of under Section 6(2) and Section
6(3) speaks about what happens when there is death of a member after
commencement of the Amendment Act. He would further submit that the
amendment gives a benefit to the daughters who are alive as on the date of
the Act coming into force and the Courts cannot substitute something which
is not contemplated under the Act. He would further submit that, in a similar
case in R.Muthulakshmi v. Valliammal and others reported in (2021) SCC
Online Mad 17482, a learned Single Judge of this Court has held that the
daughter who died prior to the commencement of the amendment is not
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entitled to equal right. The learned Single Judge has clearly held that a
daughter who seeks the benefit under Section 6 must be alive as on the date
when Amendment Act came into force and the daughter would not become a
coparcener posthumously.
16.Mr.G.Masilamani, learned Senior Counsel who voluntarily assisted
the Court as Amicus Curiae, vehemently argued that the law is made and
handled in two laboratories, viz., the Legislature and Judiciary. The Court
cannot put the clock back on time. Act 39 of 2005 specifically confers a
new right by way of amendment which commences from the date of the
amendment coming into force, i.e., 09.09.2005. It is his contention that,
without a female heir being alive, the right cannot be conferred on her as on
the date of commencement of the Act, because a right has to be conferred
only on a person who is either a natural person or a juristic person, but
cannot be on dead person. He has also compared it with the service laws
and would submit that the benefits occur only from a specified date, which
has to be strictly followed, though it is an artificial line. It is his further
contention that the rights of a coparcener have their origin in Mitakshara
law, which also contemplates that, if there is no son, there cannot be a
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coparcenary right and the same goes for daughters also after the amendment
by Act 39 of 2005. Hence, according to him, for the right to be crystallised
in the daughter, she has to be alive on the date of the Act coming into force.
All the coparceners are to be alive when there is a conferment of right. He
would further submit that coparcenary is only between the father and
son/daughter and it cannot be between the brothers and sisters, since where
the father is predeceased, the right is already created in favour of the son.
17.Mr.R.Sankaranarayanan, learned Senior Counsel appearing as
Amicus Curiae, referring to the literary work in Sixteen Stormy Days and the
Law Commission report which speaks about the opposition to the First
Amendment to the Constitution, would submit that the application of the
amendment from the cut-off date becomes a factum valet and becomes a
narrow construction of exclusion. Referring to the Law Commission’s
Report, he would submit that the mischief of discrimination against women
was removed by the Amendment Act. According to him, the only
interpretation of Sections 6(1) and 6(2) would be that, on the amending Act
coming into force, a daughter becomes a coparcener by birth. Thus, a legal
fiction was created, which made the Act applicable to them from the date of
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their birth. It is his contention that, since an unguided application of
coparcenary status to every female Hindu on the commencement of the
amendment would be fraught with certain issues relating to the transactions
that had taken place from 1956 till 20.12.2004, a cut off date was fixed as
20.12.2004. The Legislature has therefore conspicuously exempted the
application of the amendment where the facts in issue fall within the ambit
of Section 6(5) of the amended Act. Had there been a daughter alive on
20.12.2004 and the coparcenary property is not affected by any transaction
mentioned in Section 6(5), then she became a coparcener from the date of
her birth. Therefore, according to him, any interpretation that brings about
discrimination against a female Hindu who dies after 20.12.2004 would
amount to bringing back the mischief through the backdoor.
18.Mr.P.Valliyappan, learned Senior Counsel appearing as Amicus
Curiae, would submit that the notional partition contemplated under Section
6(3) of Act 39 of 2005 must proceed by treating the daughter in the same
manner as a son. Accordingly, the daughter is notionally allotted a share
equal to that of a son. Once the daughter’s share is identified, it becomes
part of her estate. Its devolution is thereafter governed by the ordinary rules
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of intestate succession under the Hindu Succession Act. Under this
interpretation, the legal representatives of the predeceased daughter do not
claim any independent right under Section 6(3). They merely succeed to the
estate of their deceased predecessor. On this interpretation, the mere fact
that the daughter died before 09.09.2005 would not defeat the claim of her
legal representatives. According to him, Section 6(3) is a machinery
provision. The statutory fiction created by the explanation is intended only
to determine the share of the deceased coparcener by assuming a partition
immediately before his death. It does not regulate the subsequent devolution
of the share so determined. Once the daughter’s share is identified under the
statutory fiction, it becomes part of her estate. Its devolution thereafter is
governed by the ordinary rules of intestate succession under the Act. The
legal representatives of a predeceased daughter therefore do not claim as
coparceners in their own right, but they claim only as successors to the estate
of the deceased daughter. He would further submit that a legal fiction must
be carried to its logical conclusion. If Section 6(3) requires the Court to
identify the daughter’s share on a notional partition, the ordinary legal
consequences flowing from such identification cannot thereafter be ignored
unless the Statute expressly provides otherwise. According to him, if the
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amendment is construed as creating a new statutory right available only to
daughters who were alive on 09.09.2005, the claim of the legal
representatives of a daughter who died before that date, cannot succeed.
19.Mr.Sharath Chandran, learned counsel appearing as Amicus
Curiae, would submit that the objective of conferring coparcenary rights on
a female is not to resurrect the past, but to prospectively recognize an
antecedent for conferral of rights. Hence, according to him, the daughter
would step into the coparcenary as that of a son by taking birth before or
after the Act. However, a daughter born before can claim these rights only
with effect from the date of the amendment, i.e., 09.09.2005, with saving of
past transactions as provided in the proviso to Section 6(1) read with Section
6(5). Hence, according to him, to exercise the rights on or from 09.09.2005,
conferred retroactively from 1956, the beneficiary of such a right, i.e., the
daughter, must be alive as on the date of coming into force of the Hindu
Succession (Amendment) Act. According to him, the Full Bench of the
Bombay High Court in Badrinarayan Shankar Bhandari’s case (supra) has
clearly held that the daughter must be alive as on 09.09.2005 to enjoy the
benefits of the amended Act. It is his further contention that the Hon’ble
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Supreme Court in Vineeta Sharma‘s case did not disturb the finding in
Prakash v. Phulavathi (supra) that the amended Section 6 would apply only
if the daughter was alive as on 09.09.2005. He would further point out that a
learned Single Judge of this Court in Muthulakshmi’s case (supra) has
questioned, “should a dead person be considered alive for the purpose of
Section 6 ? This Court does not find anything in Section 6 that enables it to
accommodate any such amazingly far-fetched interpretation”. Similar view
was also taken by a learned Single Judge of the Bombay High Court in
Kamlakar Purushotaminamdar v. Rajani Shriram Madiwale reported in
(2024) 5 Mah LJ 372, wherein, it is held that the daughter should be alive as
on 09.09.2005. He further brought to our notice that, subsequently, the said
judgment of the Bombay High Court has been confirmed by the Hon’ble
Supreme Court in S.L.P.(C) No.17491 of 2024 [2024 SCC Online SC 2872]
by order dated 12.08.2024.
20.Mr.P.Sankaranarayanan, learned counsel appearing for the
respondents 1 to 6, made his submissions in line with that of
Mr.S.Parthasarathy, learned Senior Counsel, by stating that the daughter
need not be alive as on the date of commencement of the Amendment Act to
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claim the benefit under Section 6 of the amended Act and thereby, the legal
heirs of the predeceased daughter are also entitled to shares.
21.In the light of the above submissions, the points that arise for
consideration in this Appeal are as follows :
i. Whether, to claim the benefit under Section 6 of the Hindu
Succession (Amendment) Act, 2005 (Act 39 of 2005), the
daughter should be alive as on the date of commencement of
the Act, i.e., 09.09.2005 ?
ii. Whether the shares determined by the trial Court are proper ?
22.Heard all the learned counsel and perused the entire materials
available on record.
Point No.(i) :
23.The only legal issue is with regard to the right of the legal
representatives of the predeceased daughter who died before 09.09.2005.
24.One line of submissions made is that the daughter must be alive on
the date of commencement of the Amendment Act (Act 39 of 2005), i.e., on
09.09.2005 to claim the benefit under the said Act. The other line of
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submissions is that the daughter, who is conferred the benefit retroactively
from 1956, need not be alive as on the date of commencement of the Act to
exercise such right.
25.Submissions were made mainly on the interpretation of the
judgment of the Hon’ble Supreme Court in Vineeta Sharma v. Rakesh
Sharma and others reported in (2020) 9 SCC 1, which answered the
reference arising out of the conflicting verdicts rendered by two Division
Benches of the Hon’ble Supreme Court, one in Prakash and others v.
Phulavathi and others [(2016) 2 SCC 36] and another in Danamma @
Suman Surpur and another v. Amar and others [2018 (3) SCC 343]. In
Prakash v. Phulavathi (supra), the Hon’ble Supreme Court has held that the
rights under the Act 39 of 2005 are applicable to living daughters of living
coparceners as on 09.09.2005, irrespective of when such daughters are born;
disposition or alienation including partitions which may have taken place
before 20.12.2004 as per the law applicable prior to the said date will remain
unaffected and any transaction of partition effected thereafter will be
governed by the Explanation. Whereas, in Danamma’s case (supra), the
Hon’ble Supreme Court has held that the amended provisions of Section 6
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confer full rights upon the daughter coparcener; any coparcener, including a
daughter, can claim a partition in the coparcenary property; therefore, though
the father coparcener is not alive as on the date of commencement of the
Amendment Act, the daughter is entitled to coparcenary rights.
26.The larger Bench of the Hon’ble Supreme Court in Vineeta
Sharma‘s case, answered the reference as follows :
“137. Resultantly, we answer the reference as under:
137.1. The provisions contained in substituted Section 6
of the Hindu Succession Act, 1956 confer status of coparcener
on the daughter born before or after the amendment in the
same manner as son with same rights and liabilities.
137.2. The rights can be claimed by the daughter born
earlier with effect from 9-9-2005 with savings as provided in
Section 6(1) as to the disposition or alienation, partition or
testamentary disposition which had taken place before the 20th
day of December, 2004.
137.3. Since the right in coparcenary is by birth, it is not
necessary that father coparcener should be living as on 9-9-
2005.
137.4. The statutory fiction of partition created by the
proviso to Section 6 of the Hindu Succession Act, 1956 as
originally enacted did not bring about the actual partition orPage 22 of 44
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disruption of coparcenary. The fiction was only for the purpose
of ascertaining share of deceased coparcener when he was
survived by a female heir, of Class I as specified in the
Schedule to the 1956 Act or male relative of such female. The
provisions of the substituted Section 6 are required to be given
full effect. Notwithstanding that a preliminary decree has been
passed, the daughters are to be given share in coparcenary
equal to that of a son in pending proceedings for final decree or
in an appeal.
137.5. In view of the rigour of provisions of the
Explanation to Section 6(5) of the 1956 Act, a plea of oral
partition cannot be accepted as the statutory recognised mode
of partition effected by a deed of partition duly registered under
the provisions of the Registration Act, 1908 or effected by a
decree of a court. However, in exceptional cases where plea of
oral partition is supported by public documents and partition is
finally evinced in the same manner as if it had been affected
(sic effected) by a decree of a court, it may be accepted. A plea
of partition based on oral evidence alone cannot be accepted
and to be rejected outrightly.”
27.The Hon’ble Supreme Court, in Para No.80 of Vineeta Sharma’s
case, while coming to the finding in Prakash v. Phulavathi (supra), did not
agree with the concept of “living coparcener” as laid down in Prakash v.
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Phulavathi (supra) and has held as follows :
“80.A finding has been recorded in Prakash v. Phulavati
[Prakash v. Phulavati, (2016) 2 SCC 36 : (2016) 1 SCC (Civ)
549] that the rights under the substituted Section 6 accrue to
living daughters of living coparceners as on 9-9-2005
irrespective of when such daughters are born. We find that the
attention of this Court was not drawn to the aspect as to how a
coparcenary is created. It is not necessary to form a
coparcenary or to become a coparcener that a predecessor
coparcener should be alive; relevant is birth within degrees of
coparcenary to which it extends. Survivorship is the mode of
succession, not that of the formation of a coparcenary. Hence,
we respectfully find ourselves unable to agree with the
concept of “living coparcener”, as laid down in Prakash v.
Phulavati [Prakash v. Phulavati, (2016) 2 SCC 36 : (2016) 1
SCC (Civ) 549]. In our opinion, the daughters should be
living on 9-9-2005. In substituted Section 6, the expression
“daughter of a living coparcener” has not been used. Right is
given under Section 6(1)(a) to the daughter by birth.
Declaration of right based on the past event was made on 9-9-
2005 and as provided in Section 6(1)(b), daughters by their
birth, have the same rights in the coparcenary, and they are
subject to the same liabilities as provided in Section 6(1)(c).
Any reference to the coparcener shall include a reference to the
daughter of a coparcener. The provisions of Section 6(1) leavePage 24 of 44
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no room to entertain the proposition that coparcener should be
living on 9-9-2005 through whom the daughter is claiming. We
are unable to be in unison with the effect of deemed partition
for the reasons mentioned in the latter part.”
(emphasis supplied)
28.On careful perusal of the above Para No.80 in Vineeta Sharma’s
case, the Hon’ble Supreme Court did not agree with the Prakash v.
Phulavathi (supra) only in respect of the concept of “living coparcener”
alone. Whereas, in the very next line, the Hon’ble Supreme Court, in fact,
has also held that, in their opinion, the daughter should be living on
09.09.2005.
29.In Para No.78 in Vineeta Sharma‘s case, it was argued before the
Hon’ble Supreme Court that, if the daughter is given the right to be a
coparcener by birth and deemed to become a coparcener at any point in the
past, in the normal working of the law, uncertainty would be caused. To
address the argument, the Hon’ble Supreme Court has clearly held that there
is no uncertainty caused when the daughter is treated like a son and is given
the right by birth to be exercised from a particular date, i.e., 09.09.2005. It
is further held that it is not to resurrect the past but recognising an
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antecedent event for conferral of rights, prospectively. The said finding
makes it clear that, though the conferment was given retroactively, the
enforcement of the right is given only prospectively.
30.Further, even in Para No.76 in Vineeta Sharma‘s case, the Hon’ble
Supreme Court has clearly held that a daughter can assert the right on and
from 09.09.2005 and the proviso saves from invalidation of the above
transactions.
31.From a combined reading of Para Nos.76, 78 and 80 in Vineeta
Sharma‘s case, it is clear that the Hon’ble Supreme Court has held that,
though the daughters are treated as coparceners by birth, whether born
before or after the amendment, such right has to be exercised only from a
particular date, i.e., on 09.09.2005 and conferral of such right by birth
whether born before or after amendment is not to resurrect the past but to
recognise the antecedent event for conferral of rights, prospectively. By
holding so, in Para No.80, the Hon’ble Supreme Court ultimately did not
agree with the concept of “living coparcener” as held in Prakash v.
Phulavathi (supra) and clearly held that the daughter should be living on
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09.09.2005.
32.In Para No.85 in Vineeta Sharma‘s case, the Hon’ble Supreme
Court has held that the right to claim partition is a significant basic feature of
the coparcenary and a coparcener is one who can claim partition. The
daughter has now become entitled to claim partition of coparcenary with
effect from 09.09.2005, which is a vital change brought about by the Statute.
By holding so, in Para No.114, while rejecting the effect of statutory fiction
of the proviso to Section 6 as discussed in Prakash v. Phulavathi (supra) and
Danamma’s case (supra), the Hon’ble Supreme Court has held that, if a
daughter is alive on the date of enforcement of the Amendment Act, she
becomes a coparcener with effect from the date of the Amendment Act,
irrespective of the date of birth earlier in point of time. By the said finding,
the Hon’ble Supreme Court has made it clear that, though the amendment is
retroactive, such right could be enforced only from 09.09.2005 and that the
daughter should be alive on the date of enforcement of the Amendment Act,
irrespective of the date of birth earlier in point of time.
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33.In Para No.61 in Vineeta Sharma‘s case, the Hon’ble Supreme
Court has clarified that a retroactive Statute is the one that does not operate
retrospectively, but it operates in futuro.
34.A combined reading of the paragraphs referred above in Vineeta
Sharma‘s case makes it clear that the daughter would step into the
coparcenary as that of a son by taking birth before or after the Act, however,
the daughter born before can claim these rights only with effect from the
date of the amendment, i.e., 09.09.2005 with saving of the past transactions
as provided in the proviso to Section 6(1) read with Section 6(5). The very
object of conferring coparcenary right on a female is not to resurrect the
past, but only to recgonise an antecedent event, prospectively. Therefore, it
makes it clear that, to claim equal right as that of son, the daughter should be
alive as on 09.09.2005.
35.It is also relevant to note that such a view has already been taken as
early as in the year 2014 by the Full Bench of the Bombay High Court in
Badrinarayan Shankar Bhandari’s case (supra). The Full Bench of the
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Bombay High Court considered the issue as to whether the daughter must be
alive as on 09.09.2005 to enjoy the benefit of the amendment to Section 6,
and held as follows :
“40.A bare perusal of sub-section (1) of Section 6,
would, thus, clearly show that the legislative intent in enacting
Clause (a) is prospective i.e. daughter born on or after 9th
September, 2005 will become a Coparcener by birth, but the
legislative intent in enacting Clauses (b) & (c) is retroactive,
because rights in the Coparcenary property are conferred by
Clause (b) on the daughter, who was already born before the
amendment, and, who is alive on the date of Amendment
coming into force. Hence, if a daughter of a Coparcener had
died before 9th September, 2005, since she would not have
acquired any rights in the Coparcenary property, her heirs
would have no right in the Coparcenary property. Since
Section 6(1), expressly confers right on daughter only on and
with effect from the date of coming into force of the Amendment
Act, it is not possible to take the view being canvassed by
learned Counsel for the Appellants that heirs of such a
deceased daughter can also claim benefits of the amendment.
…
42.Two conditions necessary for applicability of
amended Section 6(1), are:
(i) The daughter of the Coparcener (daughter claiming
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benefit of amended Section 6) should be alive on the date of
amendment coming into force;
(ii) The property in question must be available on the
date of the commencement of the Act as Coparcenary property.
…
45. …. Thus, for the amended Section 6, to apply, not
only the daughter should be alive on the date of
commencement of the Amendment Act, but also the property
should be Coparcenary property on the date of the
commencement of the Act i.e. 9th September, 2005 or atleast on
20th December, 2004, when the Amendment Bill was introduced
in Rajya Sabha.
…
57.We have considered the rival submissions. On an
examination of amended Section 6 of the Principal Act and
bearing in mind the words ‘on and from commencement of the
Hindu Succession Amendment Act, 2005’ found in Section 6, it
must follow that the rights under the amended Section 6, can be
exercised by a daughter of a Coparcener only after the
commencement of the Amendment Act, 2005. Therefore, it is
imperative that the daughter, who seeks to exercise such a
right must herself be alive at the time when the Amendment
Act, 2005 was brought into force. It would not matter whether
the daughter concerned is born before 1956 or after 1956. This
is for the simple reason that the Hindu Succession Act, 1956
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when it came into force applied to all Hindus in the country
irrespective of their date of birth. The date of birth was not a
criterion for application of the Principal Act. The only
requirement is that when the Act is being sought to be applied,
the person concerned must be in existence/living. The
Parliament has specifically used the word “on and from the
commencement of Hindu Succession (Amendment) Act, 2005”
so as to ensure that rights which are already settled are not
disturbed by virtue of a person claiming as an heir to a
daughter, who had passed away before the Amendment Act
came into force.
60.In the above view of the matter, so far as questions
(b), (c) & (d) are concerned, we hold that the Amendment Act
applies to daughters born any time provided the daughters
born prior to 9th September, 2005 are alive on the date of
coming into force of the Amendment Act i.e. on 9th
September, 2005. There is no dispute between the parties that
the Amendment Act applies to daughters born on or after 9th
September, 2005.”
(emphasis supplied)
36.It is also relevant to note that the above judgment of the Full Bench
of the Bombay High Court was also considered by the Hon’ble Supreme
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Court in Vineeta Sharma‘s case. In fact, the decision of the Full Bench of
the Bombay High Court in Badrinarayan Shankar Bhandari’s case (supra)
has not been overruled by the Hon’ble Supreme Court in Vineeta Sharma’s
case. Though the Hon’ble Supreme Court in Vineeta Sharma‘s case
considered the finding that the daughter should be alive on the date of the
Amendment Act coming into force, the same is not even touched.
37.It is also relevant to note that, in Muthulakshmi’s case (supra), a
learned Single Judge has held that any daughter who seeks the benefit of
Section 6 of the Hindu Succession Act, 1956, must be alive as on the date
when the amended Act came into force.
38.Similar view has been taken by a learned Single Judge of the
Bombay High Court in Kamlakar’s case (supra), wherein, it is held as
follows :
“42.The dictum of the Apex Court as noted from the
decision of Vineeta Sharma (supra) is that the daughter
acquires interest in the coparcenary by birth and the rights can
be claimed with effect from 9th September, 2005. The provisions
were held to be of retroactive application as they conferPage 32 of 44
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benefits based on an antecedent event, the antecedent event
being birth of daughter. The Apex Court was answering the
reference concerning interpretation of section 6 of Hindu
Succession Act, 1956 as amended by the Amendment Act of
2005. The Apex Court while answering the reference has
categorically observed that the right can be asserted by the
daughter on and from 9th September, 2005 although the right is
acquired by birth. It can thus be concluded that as assertion of
the right is from 9th September, 2005 the daughter should be
living as on 9th September, 2005. In the process of answering
the reference, the Apex Court has touched upon every aspect of
the right of the daughter vis-a-vis the amendment of he year
2005 to section 6 of Hindu Succession Act, 1956. The Apex
Court has categorically observed that the daughter can assert
the right on and from 9th September, 2005 which right is given
by birth and is to be exercised from the particular date i.e. 9th
September, 2005. As the exercise of the right is from 9th
September, 2005, the Apex Court has opined in paragraph 80
that the daughters should be living on 9th September, 2005 and
has held in paragraph 114 that if a daughter is alive on the date
of enforcement of the Amendment Act, she becomes a
coparcener with effect from date of the Amendment Act.”
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39.Further, submissions were made on the interpretation of the
provisions of Section 6 of the Hindu Succession (Amendment) Act, 2005.
Much emphasis was placed on Sub-Clauses (b) and (c) of Sub-Section (3) of
Section 6. Section 6(3) is relevant and extracted hereunder :
“6.Devolution of interest in coparcenary property :
… (3) Where a Hindu dies after the commencement of the
Hindu Succession (Amendment) Act, 2005, his interest in the
property of a Joint Hindu family governed by the Mitakshara
law, shall devolve by testamentary or intestate succession, as
the case may be, under this Act and not by survivorship, and
the coparcenary property shall be deemed to have been divided
as if a partition had taken place and,—
(a) the daughter is allotted the same share as is allotted
to a son;
(b) the share of the pre-deceased son or a pre-deceased
daughter, as they would have got had they been alive at the
time of partition, shall be allotted to the surviving child of such
pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased
son or of a pre-deceased daughter, as such child would have
got had he or she been alive at the time of the partition, shall
be allotted to the child of such pre-deceased child of the pre-
deceased son or a pre-deceased daughter, as the case may be.
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Explanation — For the purposes of this sub-section, the
interest of a Hindu Mitakshara coparcener shall be deemed to
be the share in the property that would have been allotted to
him if a partition of the property had taken place immediately
before his death, irrespective of whether he was entitled to
claim partition or not.”
40.Section 6(3)(c) of amended Act states that the share of the
predeceased child of a predeceased son or of a predeceased daughter, as such
child would have got had he or she been alive at the time of partition, shall
be allotted to the child of such predeceased child of the predeceased son or a
predeceased daughter, as the case may be.
41.Sub-Section (2) of Section 6 stipulates that the property to which
any female Hindu becomes entitled by virtue of Sub-Section (1) shall be
held by her with the incidents of coparcenary ownership and shall be
regarded, notwithstanding anything contained in this Act or any other law
for the time being in force, as property capable of being disposed of by her
by testamentary disposition.
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42.Whereas, Sub-Section (3) of Section 6 deals with the death of the
Hindu who dies after the commencement of the Act. Therefore, when after
the commencement of the Act any Hindu dies, the Sub-Clauses (b) and (c)
takes care of the distribution of the interest in the property of a joint Hindu
family. Therefore, Section 6(3) can be applied only when the Hindu dies
after the commencement of the Hindu Succession (Amendment) Act, 2005.
Therefore, the distribution of his interest to his legal heirs, as stated in Sub-
Clauses (b) and (c), cannot be applied in the case of daughter who died prior
the Amendment Act.
43.In Para No.69 in Vineeta Sharma‘s case, the Hon’ble Supreme
Court has held that the effect of amendment is that a daughter is made
coparcener with effect from the date of amendment and she can claim
partition also, which is a necessary concomitant of the coparcenary. Section
6(1) recognises a joint Hindu family governed by Mitakshara law. The
coparcenary must exist on 09.09.2005 to enable the daughter of a coparcener
to enjoy rights conferred on her. As the right is by birth and not by dint of
inheritance, it is irrelevant that a coparcener whose daughter is conferred
with the rights is alive or not. Conferral is not based on the death of a father
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or other coparcener. In case living coparcener dies after 09.09.2005,
inheritance is not by survivorship but by intestate or testamentary succession
as provided in substituted Section 6(3).
44.Therefore, the above dictum in Para No.69 will apply to the
distribution of the interest of the coparcener only when he/she after dies after
09.09.2005. Therefore, the contention of Mr.S.Parthasarathy and
Mr.N.Manokaran, learned Amici Curiae that Section 6(3) has to be taken
note of, has no relevance at all. Whereas, Section 6(3) will apply to the
death of the Hindu only after the commencement of the Act. As per the
Hon’ble Supreme Court, coparcenary must exist on 09.09.2005 to enable the
daughters of the coparcener to enjoy the rights conferred on her.
45.In Prasanta Kumar Sahoo’s case, the Hon’ble Supreme Court, in
Para No.71, has laid down the propositions that flow from the decision in
Vineeta Sharma‘s case :
“71.The following propositions, amongst others, follow
from the abovequoted paragraphs of the decision in Vineeta
Sharma [Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 :
(2021) 1 SCC (Civ) 119] :
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71.1.Sub-section (1) of the substituted Section 6 of the
Hindu Succession Act, 1956 recognises a joint Hindu family
governed by Mitakshara law.
71.2.The coparcenary must exist on 9-9-2005 i.e. the
date of commencement of the 2005 Amendment Act.
…
71.5.Though the daughter would step into the
coparcenary as that of a son by birth whether the daughter is
born before the commencement of the 2005 Amendment Act or
after the commencement of the 2005 Amendment Act, but the
daughter born before the commencement of the 2005
Amendment Act can claim coparcenary rights only with effect
from the date of the amendment i.e. 9-9-2005 with saving of
past transactions as provided in the proviso to Section 6(1)
read with Section 6(5).”
(emphasis supplied)
46.The above proposition makes it clear that, though the daughter was
born before the commencement of the Amendment Act, she can claim
coparcenary right only from the date of amendment, i.e., 09.09.2005 with
saving of the past transactions as provided in the proviso to Section 6(1) read
with Section 6(5). In case a coparcener living on the date of commencement
of the 2005 Amendment Act, i.e., 09.09.2005, dies after 09.09.2005,
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inheritance is not by survivorship but by intestate or testamentary succession
as provided in substituted Section 6(3). Therefore, the amended Section 6(3)
will apply only to the Hindu who dies after the commencement of the
amended Act. The proviso cannot be applied to the daughter who was not
alive on the date of 09.09.2005 to distribute her interest to her legal heirs.
47.Though much emphasis has been placed that there is a
discrimination, we are of the view that the discrimination which was in
existence till Amendment Act 39 of 2005, was removed for the first time in
the year 2005 and new benefits have been conferred, which has to be
exercised only from a particular date. As rightly pointed by
Mr.G.Masilamani, learned Senior Counsel, we cannot put the clock back on
time. The Legislature, in its wisdom, has fixed a cut off date for conferring
certain benefit. Though such right has been conferred retroactively, it has to
be exercised only from a particular date, i.e., 09.09.2005.
48.In view of the narrative supra, we are of the view that the daughter
should be alive as on 09.09.2005 for asserting her right. Accordingly, Point
No.(i) is answered.
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Point No.(ii) :
49.In the given case, admittedly, one of the daughters of Murugesa
Gounder, namely Anbazhagi, died on 03.03.1998, prior to the
commencement of the Hindu Succession (Amendment) Act, 2005. This fact
is not in dispute. The 4th plaintiff is the daughter of the deceased Anbazhagi.
The relationship of the parties is not in dispute. The character of the
properties is also not in dispute.
50.After the commencement of the Hindu Succession (Amendment)
Act, 2005, with effect from 09.09.2005, (i) the father Murugesa Gounder (ii)
1st defendant (son) (iii) 5th plaintiff Kalavathi (daughter) (iv) 6th plaintiff
Sivagami (daughter) and (v) Sundari (daughter) became entitled to 1/5 share
in the coparcenary properties. Since one of the daughters Anbazhagi died on
03.03.1998 prior to commencement of the Amendment Act 39 of 2005, in
view of the discussion in the foregoing paragraphs, no coparcenary right can
be conferred on her as on the date of Amendment Act coming into force, i.e.,
on 09.09.2005, so also her legal heirs.
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51.The father Murugesa Gounder died in the year 2007. One of the
daughters Sundari died in the year 2019. These facts are also not in dispute.
The plaintiffs 1 to 3 are the legal heirs of the deceased Sundari. Therefore,
after the death of Murugesa Gounder, his 1/5 share will be divided among all
his legal heirs.
52.Accordingly, the parties are entitled to their respective shares as
follows :
Iyyanar (1st defendant – son) : 1/5 + 1/25 = 6/25
Kalavathi (5th plaintiff – daughter) : 1/5 + 1/25 = 6/25
Sivagami (6th plaintiff – daughter) : 1/5 + 1/25 = 6/25
Sundari’s (daughter) branch
[Plaintiffs 1 to 3] : 1/5 + 1/25 = 6/25
Anbazhagi’s (daughter) branch
[4th plaintiff] : 1/25 = 1/25
53.In fine, the plaintiffs 1 to 3, 5 and 6 and the 1 st defendant are each
entitled to 6/25 share in the Item Nos.4 to 25 of the suit properties. The 4 th
plaintiff is entitled to 1/25 share in the Item Nos.4 to 25 of the suit
properties.
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54.As far as the suit Item Nos.1 to 3 are concerned, as per Exs.A8 and
A9, the said properties stand in the name of Murugesa Gounder and his
brothers and during partition with his brothers, Murugesa Gounder had
acquired 1/5 share which has not been mutated in the records. Therefore,
Murugesa Gounder will be entitled only for 1/5 share in the total extent. The
said fact is not in dispute. Therefore, insofar as Item Nos.1 to 3 of the suit
properties are concerned, after the death of the Murugesa Gounder, his 1/5
share will be equally divided among his legal heirs.
55.As a result, this Appeal is partly allowed and the impugned
judgment and decree of the trial Court is modified to the extent as follows :
(a) the plaintiffs 1 to 3, 5 and 6 and the 1st defendant are each
entitled to 6/25 share; and the 4th plaintiff is entitled to 1/25
share in respect of Item Nos.4 to 25 of the suit properties.
(b)the plaintiffs 1 to 3, 4, 5 and 6 and the 1 st defendant are each
entitled to 1/25 share in respect of Item Nos.1 to 3 of the suit
properties.
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(c) Rest of the judgment remains intact.
(d) No costs.
(N.S.K., J.) (M.J.R., J.)
24.07.2026
mkn
Internet : Yes
Index : Yes / No
Speaking Order
Neutral Citation : Yes
To
1.The I Additional District Judge,
Tindivanam.
2.The Section Officer,
VR Section,
High Court, Madras.
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N. SATHISH KUMAR, J.
and
M. JOTHIRAMAN, J.
mkn
Judgment in
A.S.No.540 of 2024
24.07.2026
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