Madras High Court
Manimegalai vs Tamizhazhagan on 5 July, 2021
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
A.S.No.55 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 05.07.2021
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
A.S.No.55 of 2013
and Cros.Obj.No.55 of 2019
1.Manimegalai
2.Sarasvathy
3.Devaki
4.Mallika ... Appellants
-Vs-
1.Tamizhazhagan
2.Kalaivani
3.Ananthavel
4.Bothuraja
5.Purushothaman
6.Manikandan
7.Subramani ...Respondents
PRAYER: Appeal Suit is filed under Section 96 of CPC against the
Judgment and Decree dated 30.10.2012 passed in O.S.No.2 of 2009 on the
file of the II Additional District Judge, Tindivanam.
For Appellants : Ms.RV.Rukmani
for M/s.P.B.Ramanujam
For Respondents : Mr.N.Suresh for R1
No Appearance for R2 to R7
********
1/15
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
JUDGMENT
The Appeal suit is filed against the Judgment and Decree dated 30.10.2012 passed in O.S.No.2 of 2009 on the file of the II Additional District Judge, Tindivanam.
2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.
3. The suit is filed for partition. The case of the plaintiffs is that the suit properties are self acquired properties of one Ramalinga Gounder. He died intestate in the year 1999. The plaintiffs 1 to 3 and the second defendant are his daughters, the fourth plaintiff is his wife and defendants 1 to 3 are his sons. After his demise, the plaintiffs and defendants 1 to 3 jointly enjoyed the possession of the suit properties. While being so, defendants 1 and 2 were refused their shares in the suit property. As per Hindu Succession Act, 1956 and Tamil Nadu Amendment Act, 1990 all the plaintiffs and defendants 1 to 3 are entitled in the 1/7th share in the suit 2/15 https://www.mhc.tn.gov.in/judis A.S.No.55 of 2013 property. Hence, the suit.
4. Resisting the same, the first defendant filed written statement and stated that the suit properties are the ancestral joint family properties and owned by his grandfather and his father. Out of the income derived from the joint family properties some of the properties were purchased by his father. Hence all the properties are to be treated as joint family properties. In respect of Item Nos. 1 to 3, 9 to 11 and 13 which are situated in Ahur Village, are the properties of his grandfather. After his demise his father was in possession and enjoyment of the same. In respect of Item No. 14, the property is a Government Poramboke land and as such it is not available for partition. Therefore, the defendants 1 to 3 are entitled to 1/3rd share and thereafter in a notional division of 1/3rd share. Out of the father's 1/3 share, plaintiffs 1 to 4 and the defendants 1 to 3 are entitled to have their equal share as 1/7 share in the suit properties. In respect of Item Nos. 7 and 18 are concerned, both items were already sold out during the life time of his father. Item Nos. 14 and 15 are the Government Poramboke land. The third defendant and second plaintiff are enjoying 1/2 share of the suit properties and the first defendant is enjoying the remaining 1/2 share of the suit 3/15 https://www.mhc.tn.gov.in/judis A.S.No.55 of 2013 properties. Hence prayed for dismissal of the suit.
3. The third defendant filed separate written statement and stated that the suit property is a separate self acquired property of his father and after his demise all are entitled to equal shares and sailing with the case of the plaintiffs.
4. On completion of the rival pleadings, the learned Trial Judge framed the following issues:-
"1. Whether the suit properties are the separate properties of Ramalinga Gounder is true?
2. Whether the Suit is affected by Partial partition due to non inclusion of property in S.No.123/4?
3. Whether plaintiff is entitled to 4/7 share in the suit properties?
4. To what other relief the plaintiff is entitled to? Additional Issues:
1. Whether Item Nos. 1 to 3, 9 to 11 and 13 in schedule 'B' are the properties of plaintiffs and defendants Grandfather?
2. Whether Item Nos. 14 and 15 in Schedule 'B' are Poramboke lands?4/15
https://www.mhc.tn.gov.in/judis A.S.No.55 of 2013
3. Whether Item Nos. 7 and 8 in 'B' schedule were sold by their father Ramalingam?"
5. On perusal of the records, on the side of the plaintiffs, P.W.1 to P.W.3 were examined and 63 documents were marked as Ex.A1 to Ex.A63.
On the side of the defendants, D.W.1 to D.W.3 were examined and no documents were marked. On considering the oral and documentary evidences adduced by the respective parties and the submission made by the learned counsels, the Trial Court partly decreed the suit. Aggrieved by the same, the plaintiffs preferred this Appeal Suit.
6. The learned counsel for the appellants would submit that the Court below ought to have granted preliminary decree in favour of the plaintiffs and the defendants 1 to 3 herein except certain items of the properties and in respect of all other properties . She further submitted that after Amendment in the year 2005 all the plaintiffs are entitled to have equal share. In support of her contention she also relied upon the Judgment 2020(5) CTC 302 Vineeta Sharma -vs- Rakesh Sharma and others.
7. The learned counsel for the first respondent filed cross objection 5/15 https://www.mhc.tn.gov.in/judis A.S.No.55 of 2013 and submitted that the Court below passed preliminary decree 8/42 shares to each of the plaintiffs in respect of the property Item Nos.1 to 3, 9 to 12, 13, 16, 17 and 1/2 share in Item Nos. 4 and 18 are against law and liable to be dismissed. Further the plaintiffs 1 to 3 cannot be treated as coparceners along with the first defendant. The Amendment Act 2005 of the Central Act alone will govern the case of the plaintiffs and as such they cannot be treated as coparceners and they are not entitled to have equal share in the suit properties. Therefore, he prayed to set aside the Judgment passed by the Court below.
8. Heard, Ms.RV.Rukmani, learned counsel for the appellants and Mr.N.Suresh, learned counsel for the first respondent.
9. As per Section 6(1) of the Hindu Succession Act, the daughter is conferred the right. It makes daughter by birth a coparcener and the property confers the same right in the ancestral property. The conferral of right is by birth and the rights are given in the same manner with the insistence of the coparceners as that of the son and she is treated as a coparcener and the same rights as if she had been a son at the time of birth.6/15
https://www.mhc.tn.gov.in/judis A.S.No.55 of 2013 In this regard, the Hon'ble Supreme Court of India held the case of 2020(5) CTC 302 Vineeta Sharma -vs- Rakesh Sharma and others held that:
"56. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event, which happened in the past or requisites which had been drawn from antecedent events. Under the amended Section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act.
129. Resultantly, we answer the Reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of Coparcener on the daughter born before or after Amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born 7/15 https://www.mhc.tn.gov.in/judis A.S.No.55 of 2013 earlier with effect from 09.09.2005 with savings as provided in Section 6(1) as to the disposition or alienation, Partition or Testamentary disposition which had taken place before 20th day of December 2004.
(iii) Since the right in Coparcenary is by birth, it is not necessary that father Coparcener should be living as on 09.09.2005.
(iv) The Statutory fiction of Partition created by Proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual Partition or 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 Act of 1956 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.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, 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 8/15 https://www.mhc.tn.gov.in/judis A.S.No.55 of 2013 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 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 out rightly."
10. Accordingly, the preliminary decree passed by the Court below is modified and plaintiffs 1 to 4 and defendants 1 to 3 are entitled to have 1/7th share in respect of Item Nos. 5, 6, 20, 22 and 1/2 share in Item Nos. 4 and 8. Insofar as the Item Nos. 1 to 3, 9 to 11, 13, 16, 17 and 1/2 share in Item Nos. 4 and 8 of 'B' schedule property are concerned, the plaintiffs 1 to 3 and defendants 1 to 3 are entitled to have equal share namely 8/49 and the fourth plaintiff is entitled to have 1/49 share. Accordingly, the preliminary decree is modified.
11. In the result, this Appeal Suit is partly allowed. Cros.Obj.No.55 of 2019 is disposed of. No costs.
05.07.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
9/15
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
rna
10/15
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
AS.No.55 of 2013
G.K.ILANTHIRAIYAN, J.
At the instance of the learned counsel for the appellants, today this matter has been posted under the caption “for being mentioned”.
2. Heard, the learned counsel for the appellants and the respondents.
3. In view of the submission of the learned counsel for the appellants, it is ordered that the tenth paragraph of the judgment in AS.No.55 of 2013 dated 05.07.2021 shall read as follows:
“10. Accordingly, the preliminary decree passed by the court below is modified and plaintiffs 1 to 3 and defendants 1 to 3 are entitled to have 1/7th share each plus another 1/49th share each in the 1/7th share of their deceased father in respect of item Nos.5, 6, 20 to 22 and ½ share in Item Nos.4 and 8 in 'B' schedule properties. The 4 th plaintiff, namely the mother of the plaintiffs 1 to 3 and defendants 1 to 3 is entitled to only 1/49th share in the above mentioned items of properties in 'B' schedule properties. Insofar as item Nos.1 to 3, 9 to 11, 13, 16, 17 and ½ share in Item Nos.4 and 8 of 'B' schedule property are concerned, the plaintiffs 1 to 3 and defendants 1 to 3 11/15 https://www.mhc.tn.gov.in/judis A.S.No.55 of 2013 are entitled to have 1/6th share each and the fourth plaintiff, mother will not be entitled to any share in 'B' schedule properties. Accordingly, the preliminary decree is modified.
4. Accordingly, the Registry is directed to issue a fresh order copy in AS.No.55 of 2013 dated 05.07.2021 after making necessary corrections.
04.02.2022 lok 12/15 https://www.mhc.tn.gov.in/judis A.S.No.55 of 2013 A.S.No.55 of 2013 G.K.ILANTHIRAIYAN, J.
The above matter is listed today under the caption “for being mentioned”.
2. Heard the learned counsel for the appellants and the respondents.
3. It is clarified that the paragraph No.3 of this Court's earlier order dated 04.02.2022 in A.S.No.55 of 2013 shall be modified to the following effect:-
“10. Accordingly, the preliminary decree passed by the court below is modified and plaintiffs 1 to 3 and defendants 1 to 3 are entitled to have 1/7th share each plus another 1/49th share each in the 1/7th share of their deceased father in respect of item Nos.5, 6, 20 to 22 and ½ share in Item Nos.4 and 18 in 'B' Schedule properties. The 4 th plaintiff, namely the mother of the plaintiffs 1 to 3 and defendants 1 to 3 is entitled to only 1/49th share in the above mentioned items of properties in 'B' schedule properties. Insofar as item Nos.1 to 3, 9 to 11, 13, 16, 17 and ½ share in Item Nos.4 and 18 of 'B' schedule property are concerned the plaintiffs 1 to 3 and defendants 1 to 3 are entitled to 13/15 https://www.mhc.tn.gov.in/judis A.S.No.55 of 2013 have 1/6th share each and the fourth plaintiff, mother will not be entitled to any share in 'B' schedule properties. Accordingly, the preliminary decree is modified.”
2. Accordingly, the Registry is directed to issue a fresh order copy in dated 04.02.2022 in A.S.No.55 of 2013 after making necessary corrections.
15.06.2022 nsa 14/15 https://www.mhc.tn.gov.in/judis A.S.No.55 of 2013 G.K.ILANTHIRAIYAN, J.
nsa A.S.No.55 of 2013 15.06.2022 15/15 https://www.mhc.tn.gov.in/judis