Madras High Court
Dhanalakshmi vs Janaki Ammal on 17 March, 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.03.2004 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A.No.1391 of 2008 1.Dhanalakshmi 2.Radhakrishnan 3.Sekar .. Appellants -Vs- 1.Janaki Ammal 2.Manimekalai 3.Parimala 4.Sumathi @Rojarani .. Respondents Second Appeal filed under section 100 of C.P.C against the judgment and decree made in A.S.No.1 of 2007 dated 09.07.2007 on the file of the Principal District Judge of Salem confirming the judgment and decree made in O.S.No.21 of 2006 dated 12.08.2006 on the file of the Court of the Subordinate Judge, Sankari. For Appellant : Mr.Su.Srinivasan For Respondents : Mr.D.Shivakumaran ----- JUDGMENT
The defendants in O.S.No.6 of 2005 on the file of the Subordinate Judge, Mettur are the appellants in the second appeal. The plaintiffs in the said suit are the respondents in the second appeal. Admittedly, the suit properties were the ancestral properties in the hands of one Arumugam who died in or about 1979. The first respondent herein/first plaintiff Janaki Ammal is the widow of the said Arumugam. Respondents 2 to 4/plaintiffs 2 to 4 are the daughters of the said Arumugam born through Janaki Ammal. The first appellant/first defendant is also a daughter of Late Arumugam and Janaki Ammal. Appellants 2 and 3/defendants 2 and 3 are the sons of late Arumugam and Janaki Ammal. The suit was filed by the respondents 1 to 4 herein for the relief of partition and separate possession claiming 11/28 share on the premise that the suit properties were the coparcenary properties, of which Arumugam, his sons and the eligible daughters were coparcenars.
2. The suit was resisted by the appellants herein/defendants 1 to 3 contending that the respondents/plaintiffs and the appellants/defendants orally effected a partition during the year 1988-1989 in which the entire suit properties came to be allotted to the appellants 2 and 3/defendants 2 and 3 and that the respondents/plaintiffs were not in joint possession of the suit properties after such division. It was also contended that respondents 2 to 4/plaintiffs 2 to 4 had been given in marriage giving sufficient dowry and sreedhanas and their marriage expenses were borne by the appellants 2 and 3/defendants 2 and 3 and that, in view of the same they were not allotted any share in the suit properties. Citing the alleged oral partition, the appellants also contended that the first respondent/first plaintiff also orally relinquished her share and hence she was not entitled to any share in the suit properties. It was the further contention of the appellants/defendants that since the first respondent/first plaintiff was in receipt of family pension from the employer of Late Arumugam, she was left with the same and was not allotted any share in the other properties of Arumugam, namely suit properties. Based on the above said contention, the appellants/ defendants prayed for the dismissal of the suit.
3. The learned trial Judge framed as many as five issues and one additional issue based on which the suit was tried. In the trial, four witnesses were examined as Pws 1 to 4 and 10 documents were marked as Exs.A1 to A10 on the side of the respondents herein/plaintiffs, whereas four witnesses were examined as Dws 1 to 4 and 27 documents were marked as Exs.B1 to B27 on the side of the appellants herein/defendants.
4. At the end of trial, the learned trial Judge considered the pleadings and evidence in the light of the arguments advanced on both sides and on appreciation of evidence, rendered a finding that the suit properties were the coparcenary properties, of which Arumugam and his sons, namely appellants 2 and 3 / defendants 2 and 3 were coparcenars prior to the amendment introduced by Tamil Nadu Act 1 of 1990 to the Hindu Succession Act. However, the learned trial Judge was of the view that the second respondent/second defendant Manimekalai got married after the Tamil Nadu amendment to the Hindu Succession Act and Act 1 of 1990 was brought into force and that hence she became a coparcener in the family. Based on the said observation, the learned trial Judge proceeded with the assumption that the coparcenary consisted of 4 coparceners, namely Arumugam, his two sons and the second plaintiff, who remained unmarried when Tamil Nadu Act 1 of 1990 came into force. Thus, the learned trial Judge held that each one of the four persons, namely Arumugam, Radhakrishna (D2), Sekar (D3) and Manimekalai (P2) became entitled to 1/4th share as coparcenars and that the share of Arumugam was succeeded to by all the plaintiffs and defendants, being wife and children of Arumugam, as per the rule of succession provided in the Hindu Succession Act. Accordingly, the learned trail Judge held that each one of the plaintiffs and each one of the defendants became entitled to 1/28 share as legal heir of Arumugam and it worked out the final tally of shares as follows:
As Coparcenar As Legal Heir of Total Arumugam Radhakrishnan < (7/28) 1/28 (< x 1/7) 8/28 Sekar < (7/28) 1/28 (< x 1/7) 8/28 Manimekalai < (7/28) 1/28 (< x 1/7) 8/28 Janaki Ammal - 1/28 (< x 1/7) 1/28 Dhanalakshmi - 1/28 (< x 1/7) 1/28 Parimala - 1/28 (< x 1/7) 1/28 Sumathi @ Rojarani - 1/28 (< x 1/7) 1/28
Accordingly, the learned trial Judge held the total shares to which the plaintiffs were entitled to be 11/28 (Janaki Ammal-1/28, Manimekalai 8/28, Parimala 1/28 and Sumathi @ Rojarani -1/28). The learned trial Judge further held that the respondents herein/plaintiffs were entitled to get a decree directing division of their shares from the rest of the shares and to seek separate possession of the same. Meanwhile, the learned trial Judge also dealt with one more objection raised by the appellants/defendants relying on erstwhile Section 23 of the Hindu Succession Act. It was their contention that the suit properties being buildings consisting of shops and residential house, unless and until the male members of the family decide to effect a division of their shares, the female members could not seek partition and that on the said score also the respondents herein/plaintiff should be non-suited for the relief of partition. The learned Subordinate Judge, after dealing with the nature of the properties, came to the conclusion that the disability provided in the erstwhile Section 23 of the Hindu Succession Act did not get attracted as there was no necessary plea incorporated in the written statement.
5. Ultimately the learned trial Judge granted a preliminary decree directing division of the suit properties and separation of 11/28 share of the respondents herein/plaintiffs from the rest of the shares. The said preliminary decree passed by the trial Court on 12.08.2006 came to be challenged before the learned Principal District Judge, Salem in A.S.No.1 of 2007. The learned Principal District Judge, after hearing both sides, re-appraised the evidence and on such re-appreciation, concurred with the findings of the trial Court and dismissed the appeal by his judgment and decree dated 09.07.2007, confirming the preliminary decree passed by the trial Court. Challenging the said decree of the lower appellate Court, the present second appeal has been filed on various grounds set out in the grounds of second appeal.
6.The second appeal came to be admitted identifying two questions to be the substantial questions of law involved in it. They are as follows:
"1.Whether the Courts below erred in holding that the plaintiffs are entitled for partition ever after they relinquished their rights and enjoyment at the time of oral partition?
2.Whether the Courts below are right in allowing the suit when the first plaintiff herself admitted the oral partition in the family?"
7.The arguments advanced by Mr.S.U.Srinivasan, learned counsel for the appellants and by Mr.D.Shivakumaran, learned counsel for the respondents are heard. The materials available on record are also perused.
8.During the course of arguments it is brought to the notice of this Court that the effect of amendment made to the Hindu Succession Act by Tamil Nadu Act 1 of 1990 was wrongly construed by the Courts below and that both the Courts below have totally omitted to consider the effect of amendment made to the Hindu Succession Act by the Hindu Succession Amendment Act 2005 (Central Act 39 of 2005). Hence, two more additional substantial questions of law are framed as follows:
"1.Whether the Courts below have committed an error in holding that the second plaintiff became a coparcener as she remained unmarried when the amendment to the Hindu Succession Act made by Tamil Nadu Act 1 of 1990 was brought into effect, disregarding the fact that her father, namely Arumugam admittedly died in 1979?
2. Whether the Courts below have committed an error in not considering the effect of amendment introduced by Hindu Succession Amendment Act 2005 (Act 39 of 2005)?"
9. The defendants, who suffered a preliminary decree for partition, which came to be confirmed by the lower appellate Court, are the appellants in the present second appeal. The suit came to be filed by the respondents herein for partition and separate possession of their shares in the suit properties. For the sake of convenience, the parties are referred to in accordance with their ranks in the suit and at appropriate places their ranks in the second appeal shall also be indicated.
10.The plaintiffs are the wife and three out of four daughters of Late Arumugam, who admittedly died in the year 1979. The other daughter of Arumugam is the first defendant and his two sons are the defendants 2 and 3. The plaintiffs claimed that plaintiffs 1 to 4 put together were entitled to 11/28 share in the suit properties which were admittedly the coparcenary properties, of which Late Arumugam was Kartha before his death. The said claim came to be made on the assumption that pursuant to the amendment made to the Hindu Succession Act regarding coparcenary properties by Tamil Nadu Act 1 of 1990, the second plaintiff Manimekalai alone became a coparcener as she alone remained unmarried on 25.03.1989, whereas the other three daughters had been married prior to the said date, the crucial date fixed under the Tamil Nadu Act 1 of 1990. The learned trial Judge as well as the appellate Judge accepted the contention of the plaintiffs and they rendered a concurrent finding that the second plaintiff Manimekalai had become a coparcener entitled to a share equal to that of her brothers, namely defendants 2 and 3 and their father Late Arumugam and all the four persons were entitled to equal shares, namely 1/4th share each as coparceners.
11.In this regard, this Court is able to find an erroneous approach made by both the trial Judge and the lower appellate Judge. The learned trial Judge as well as the lower appellate Judge failed to take note of the changes made in the Hindu Succession Act by Act 39 of 2005, a central enactment. At the same time, both the Courts below have committed an error in assuming that the unmarried daughter of Arumugam had become a coparcener entitled to an equal share as that of Arumugam and his sons by virtue of the erstwhile Section 29-A introduced by Tamil Nadu Act 1 of 1990, even though the said Arumugam had died long before the introduction of the amendment. As per erstwhile Section 29-A introduced by the Tamil Nadu Act 1 of 1990, the unmarried daughters of a coparcener as on 25.03.1989 would have become coparceners and they would have become entitled to a share each equal to that of their father. The benefit conferred by the Tamil Nadu amendment would have been available provided two conditions were fulfilled:
"1) To become a coparcener by virtue of the said amendment, the daughter of a coparcener should have remained unmarried on 25.03.1989;
2) Her father should have been alive on the above said date."
This is so because the amendment makes not a sister of a coparcener, but a daughter of a coparcener as a coparcener to have an equal share as that of her father. When the father had died prior to the date on which the amendment was brought into force, succession to his share had opened as per Section 6 of the Hindu Succession Act and the succession which had opened was not sought to be disturbed by the amendment introduced by the Tamil Nadu Act 1 of 1990.
12. In the case on hand, though it has been admitted by both parties that the second plaintiff Manimekali remained unmarried on the crucial date, namely 25.03.1989 (the date on which the Act was brought into force). But she had not become a coparcener by virtue of the amendment because her father, namely Arumugam, was not alive on the said date and he had died in 1979 itself. Therefore, the second plaintiff Manimekalai had not become a coparcener by virtue of the erstwhile Section 29-A of the Hindu Succession Act introduced by Tamil Nadu Act 1 of 1990. In this regard, learned counsel for the respondents wanted to contend that though the father would have died before the date on which the amendment was brought into effect, if the coparcenery property remained intact without any division in the hands of the other coparceners, she would have become a coparcener entitled to a share in it equal to the share of other coparceners. In support of his contention, learned counsel for the respondents drew the attention of this Court to the judgment of the Hon'ble Apex Court in Ganduri Koteshwaramma & Anr. Vs. Chakiri Yanadi & Anr. reported in 2011 (6) CTC 102.
13.The above said judgment relied on by the learned counsel for the respondents does not render any assistance in support of the contention of the learned counsel for the respondents. The issue that arose in the said case was whether a preliminary decree passed in a partition suit would be saved by the saving clause in the amended provision of Section 6 as it stands amended by Act 39 of 2005 (Cental Act). As per the amended provision, though a daughter of a coparcener has been made a coparcener irrespective of her martial status, it saves the transactions both testamentory and non-testamentory so that the amendment shall not affect or invalidate any deposition or alienation including any partition or testamantory disposition of the property that had taken place before 20.12.2004. The said saving clause is found in the proviso to sub-section (1) of Section 6. For better appreciation Section 6 of the Hindu Succession Act is reproduced hereunder:
6. Devolution of interest in coparcenary property.-(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
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 day of December, 2004.
(2) Any property to which a 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.
(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, 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 predeceased 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.
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.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(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 purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court."
14. Though the main clause says that the daughter of a coparcener on and from the commencement of the Hindu Succession (Amendment) Act, 2005 shall by birth become a coparcener in her own right in the same manner as the son, the proviso saves the transactions which had taken place prior to 20.12.2004. Such transactions may be either testamentary disposition or intestate disposition and it may also be a partition. The partition saved by the said proviso cannot be oral and it has been provided in the explanation to subsection (5) that such partition shall be one effected by way of a registered partition deed or a partition effected by the decree of a Court. The Hon'ble Apex Court in the above said judgment cited by the learned counsel for the respondents, while interpreting the said explanation, held that partition effected by a decree of the Court shall mean a final decree for partition and not a preliminary decree. For arriving at such a conclusion, the Hon'ble Apex Court has observed that a preliminary decree falls short of effecting partition and it only declares the shares of the parties and that there can be more than one preliminary decree if after the passing of a preliminary decree, events takes place necessitating readjustments of shares as declared in the preliminary decree. It has also been observed that the Court which passed the preliminary decree does have the power to revise the preliminary decree and pass a new preliminary decree or a supplementary preliminary decree if the changed circumstances so demand. It has also been made clear that the suit gets extinguished only on passing of a final decree and the suit shall be still pending if it does not result in the passing of a final decree. Only in that sense the Hon'ble Supreme Court held that the preliminary decree passed before 20.12.2004 and the pendency of the final decree application as on the said date would not attract the saving clause provided in the proviso to sub-section (1) of Section 6.
15. The position has been made clear by a number of judgments of Hon'ble Single Judges of this Court and Division Bench of this Court. Citing all those judgments is not necessary and suffice to cite the judgment of the Supreme Court in Sheela Devi and Others V. Lal Chand and another reported in 2007 (1) MLJ 797 (SC), the judgment of a learned Single Judge of this Court in M.Kumaran & Another Vs. J.Rajesh (Minor) and Another reported in (2010) 5 LW 329 and also the judgment in K.M.Thangavel and others vs. K.T.Udayakumar and another reported in 2014 (2) CTC 113 (rendered by myself). In the above said judgments, it has been clearly held that for availing the benefit of the amendment either under the Tamil Nadu amendment Act or under the Central Amendment, the father of the female member who claims to have become coparcener should have been alive. In order to make the point more clear, the following prepositions of law have been laid down succinctly in in K.M.Thangavel and others vs. K.T.Udayakumar and another reported in 2014 (2) CTC 113. The same is nothing but restatement of what has been held in the other cases and only in order to see that any doubt does not arise, it was summarized as follows:
a) In case the father of the female, who claims to have become a coparcener by virtue of the amendment had died prior to 25.03.1989, the date on which the Tamil Nadu Amendment Act came into force, she will not be entitled to the benefit of either Tamil Nadu Amendemnt Act or the amendment to Section 6 made by the Hindu Succession (Amendment) Act, 2005.
b) In case the father was alive on 25.03.1989 and his daughter was unmarried on that date, by virtue of Tamil Nadu Amendment Act, she would have become a coparcener in respect of the coparcenary property, which remained undivided.
c) In the case referred in clause (b) above, if a partition had been effected prior to the effective date and her father had been allotted a share, she would have become a coparcener with the father only in respect of the property allotted to his share in the partition that took place prior to the crucial date, namely 25.03.1989.
d) The death of the father (coparcener) after the Tamil Nadu Amendment and before the commencement of the Central Amendment made by Hindu Succession (Amendment) Act, 2005 shall not deprive a daughter, who remained unmarried on 25.03.1989 and had become a coparcener by virtue of the Tamil Nadu Amendment of her right by birth as coparcener.
e) Irrespective of the fact whether the daughter of a coparcener was married or unmarried as on the date of commencement of the Hindu Succession (Amendment) Act, 2005, she would have become a coparcener by birth in respect of the coparcenary property along with her father, provided her father was alive on the date of commencement of the Hindu Succession (Amendment) Act, 2005, with an exception that any disposition or alienation including any partition or testamentary disposition, which had taken place prior to 20.12.2004, would not be affected and invalidated.(The partition referred to above should have been effected by means of a duly registered partition deed or effected by a decree of a court).
f) The death of a coparcener after 25.03.1989 and before the commencement of the Central Amendment Act made under the Hindu Succession (Amendment) Act, 2005 will not make the daughters, who got married prior to 25.03.1989 as coparceners.
16.The above said discussion will make it clear that though the second plaintiff Manimekalai remained unmarried on 25.03.1989, the date on which the amendment made by Tamil Nadu Act 1 of 1990 came into effect, she did not become a coparcener because her father Arumugam was not alive and he had died about 10 years prior to the date of coming into force of the amendment. The other daughters of Arumugam could have become coparceners by virtue of the central amendment made by Act 39 of 2005 provided Arumugam was alive on the date on which the amendment came into force. The learned trial Judge and learned lower appellate Judge assumed that when the properties remained undivided in the hands of the sons of Arumugam after his death, the Tamil Nadu amendment made the unmarried daughter of Arumugam a coparcener with the sons of Arumugam. But they failed to make the same kind of approach in respect of the other daughters of Arumugam in deciding the applicability of the amendment brought into force by Act 39 of 2005. Act 39 of 2005 makes the daughters of a coparcener as coparceners irrespective of their marital status as distinguished from the amendment introduced by the Tamil Nadu Act 1 of 1990. It does not prescribe any qualification for the daughter to become a coparcener that she should have remained unmarried on the date on which the central amendment came into force. If such an analogy and such an approach were made, the learned trial Judge and the learned appellate Judge would have held that all the daughters irrespective of their marital status had become coparcener as on the date of commencement of the central amendment introduced by Act 39 of 2005. The Courts below were sure that the central amendment introduced by Act 39 of 2005 did not get attracted because Arumugam had died long back. However, while dealing with the applicability of the Tamil Nadu Act 1 of 1990 before it was replaced by the central amendment, the Courts below committed an error in adopting a different yardstick that the second plaintiff who remained unmarried on 25.03.1989 had become a coparcener even though her father had died about 10 years prior to the said date. The said approach is totally erroneous and therefore this Court comes to the conclusion that the preliminary decree passed by the trial court holding the plaintiffs to be entitled to 11/28 share, which was confirmed by the lower appellate Court, is erroneous and such error that crept in due to wrong interpretation of the provision of law, has got to be corrected by this Court in exercise of it appellate power in the second appeal.
17. As pointed out supra, the second plaintiff has not become a coparcener as her father Arumugam had died before the Tamil Nadu amendment was brought into force and the succession to his interest had opened in 1979 itself which could not be disturbed and undone. Similarly, neither the second plaintiff nor the plaintiffs 3 and 4 and Defendant No.1 (all daughters of Arumugam) have become coparcener/ coparceners in respect of the suit properties because their father was not alive as on the date on which the central amendment was brought into force. The coparcenary consisted of only three coparceners, when Arumugam died in 1979. As per the notional partition, the sons of Arumugam, namely defendants 2 and 3 would have been entitled to 1/3rd share each and the share referable to Arumugam, the third coparcener, would go to all his legal heirs under the rule of succession provided in the Hindu Succession Act as per the unamended Section 6 of the Hindu Succession Act which was in force on the date of his death. This position has not been disturbed by the central amendment as sub-clause (3) of Section 6 says that if a person having an undivided interest in the joint family property governed by Mitakshara dies, his interest shall devolve by testamentary or intestate succession as the case may be under the Hindu Succession Act, 1956 as per the rule of succession and not by survivorship. Proper interpretation of the provision will make it clear that 1/3rd share of Arumugam would have enured to the benefit of his legal heirs, namely all the four plaintiffs and the three defendants in equal proportion. As such, each one of the plaintiffs and each one of the defendants, in the capacity as legal heirs of Arumugam, had become entitled to 1/3 x 1/7=1/21 share. Thus, the share of the sons, namely 2nd and 3rd defendants shall get increased. Their shares will be 8/21 (1/3 + 1/3x1/7) each. All the other 5 legal heirs of Arumugam, namely the plaintiffs and first defendant will be entitled to 1/3 x 1/7=1/21 each. Hence, both the substantial questions of law framed as additional substantial questions of law are answered against the respondents and in favour of the appellants.
18. It is the contention of the learned counsel for the appellants that in 1989 itself there was a family partition in which the daughters were not allotted any share taking into account the fact that they were provided with dowry and sreedhanas at the time of their marriage and that the second plaintiff Manimekalai, who remained unmarried, would be provided by the first plaintiff, who was in receipt of family pension from the employer of Arumugam. The said contention was rightly negatived by the trial Court as well as by the appellate Court holding that the said contention was not legally substantiated. It is the further contention of the learned counsel for the appellant that the said oral partition set up by the defendants was admitted by the first plaintiff herself while deposing as PW1 during cross-examination. Of course, it is true that PW1 has made such an admission during her cross-examination that she came forward to give up her claim to a share as the defendants 2 and 3 agreed not to ask anything from the family pension she was receiving. Such an admission made by the first plaintiff (PW1) cannot be used against the other plaintiffs and the first defendant, who are the daughters of Arumugam. There is no evidence to show that the daughters were made parties to the alleged oral partition that allegedly took place in the year 1989. Such a partition in the light of the failure to include the daughters would not be binding on the daughters and the daughters can disregard would not be binding on the daughters and the daughters can disregard such a partition and seek a fresh partition according to their entitlement. While doing so, the mother has also joined with three of her daughters in seeking partition. When the partition propounded by the defendants is disregarded, the mere fact that she had admitted for such a division will not disentitle the first plaintiff from seeking her share in the fresh partition to be effected. Moreover, such a contention is not available to the defendants 2 and 3 after the passing of the Hindu Succession Amendment Act 2005. If any party pleads a partition as a defence, the same shall not be recognized unless it had been effected by a registered deed or by a decree of the Court. Here, there is no registered deed of partition and no division has been effected by a decree of Court. The oral partition set up by the defendants 2 and 3 has also not been substantiated.
19. The learned appellate Judge, after referring to the portions of the deposition of PW1, made it clear that there was no admission of a concluded partition as projected by the defendants, in which the first plaintiff (PW1) agreed for the division of the properties between the defendants 2 and 3 alone. The learned lower appellate Judge has pointed out the fact that there was a suggestion in the line of the contention made by the defendants 2 an 3, but no decision was arrived at as it was relegated to be decided at the time of marriage of the second plaintiff Manimekalai. This Court does not find any defect or infirmity in the finding of the Courts below that the above said contention of the contesting defendants stands unsubstantiated. The second substantial question of law based on which the appeal came to be admitted deserves to be answered accordingly against the appellant and in favour of the respondents. The Courts below have rendered a correct and concurrent finding that the oral relinquishment of the shares of the plaintiffs, especially the daughters of Arumugam, alleged by the defendants was not substantiated. No defect or infirmity in the said finding is found by this Court. Therefore, the first substantial question of law is answered against the appellant and in favour of the respondents.
20. The next contention raised by the learned counsel for the appellants is that the suit property being a dwelling house, the female members of the family cannot seek a share in them as they are disentitled to claim a share under Section 23 of the Hindu Succession Act. The above said contention was raised totally unmindful of the changes made in the Hindu Succession Act by Act 39 of 2005 by which Sections 23 and 24 came to be repealed. By virtue of such an amendment no longer such a plea is available to the defendants 2 and 3. For better appreciation, Section 23 of the Hindu Succession Act, as it stood before its repeal is extracted hereunder:
23. Special provision respecting dwelling- houses.- Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling- house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling- house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling- house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.
21. The suit was filed subsequent to the central amendment coming into force. In the written statement of the defendants, no such plea had been raised referring to Section 23 of the Hindu Succession Act as it stood repealed at the time of filing of the suit and also at the time of filing of the written statement. Even if such a plea could have been raised before the amendment coming into effect, the same cannot be sustainable after the amendment came into force as the disability caused to the female members under the erstwhile Section 23 has been removed from 09.09.2005, the date on which the amendment came into force. Moreover, the suit properties consists of house and shops. What was exempted under the erstwhile Section 23 was that one house belonging to the family, if it was entirely occupied by the members of the family, could not be sought to be divided at the instance of the female members unless and until the male members decided to divide their shares in the property. Such an exemption was available in respect of a dwelling house alone. If the family had got more than one dwelling house, the other dwelling houses would not attract the disability enshrined in the erstwhile section.
22. There is no clear cut plea and evidence to show which one of the house was in the exclusive possession and enjoyment of the family members to claim the benefit of the erstwhile Section 23. Furthermore, in view of the removal of the disability caused by the erstwhile Section 23 of the Hindu Succession Act, such a plea of defence is no more available to the appellants and hence, the attempt made by the learned counsel for the appellant to contend that the Courts below committed an error in not holding the plaintiffs to be disentitled to seek partition of the dwelling house has ended in utter failure and such a contention deserves rejection by an emphatic pronouncement that such a contention is not available to the appellant.
23. For all the reasons stated above, especially in view of the answer given to additional Substantial Questions of law 1 and 2 regarding the share of each one of the plaintiffs and the defendants, it is hereby held that though the courts below have rightly held that the plaintiffs are entitled to partition, they have committed a grave error in fixing the shares of the parties which has not to be corrected by this Court. Accordingly, this Court holds that the share of each one of the plaintiffs and the first defendant shall be 1/21, whereas the share of the defendants 2 and 3 shall be 8/21. The resultant position shall be that the plaintiffs 1 to 4 put together shall be entitled to 4/21 share and not 11/28 as held by the courts below. The preliminary decree of the trial Court shall be modified accordingly regarding the shares.
24. In the result, the second appeal is allowed in part and the preliminary decree dated 12.08.2006 passed in O.S.No.21 of 2006 by the trial Court, which was confirmed by the lower appellate Court in A.S.No.1 of 2007 dated 09.07.2007, is modified by declaring the shares of the plaintiffs to be 4/21 and directing division of the same from the rest. In all other respects, the decree of the trial Court shall stand confirmed subject to the above said modification. No costs.
17.03.2014 Index: Yes/No Internet/Yes/No gpa To
1. The Principal District Judge Salem
2. The Subordinate Judge Sankari P.R.SHIVAKUMAR.J gpa S.A.No.1391 of 2008 17.03.2014