Madras High Court
K.Moorthy vs Mrs.K.Rathina on 4 October, 2018
S.A.Nos.362 & 451 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 15.02.2024 Pronounced on: 15.03.2024
CORAM
THE HONOURABLE MR. JUSTICE P.B.BALAJI
S.A. Nos.362 & 451 of 2019
and CMP. Nos.5270 & 7263 of 2019
S.A. No.362 of 2019
K.Moorthy
...Appellant
Vs.
1.Mrs.K.Rathina
2.N.Kuppusamy
3.Smt.Raniammal
4.R.Lalitha
5.Mrs.Anjalai
6.Saroja
...Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure to set aside the Judgment and decree in A.S. No.240 of 2013
dated 04.10.2018 on the file of XVI Additional City Civil Court, Chennai
and confirming the decree in O.S. No.2976 of 2010 dated 05.04.2013 on the
file of the VIII Assistant City Civil Court, Chennai.
1/16
https://www.mhc.tn.gov.in/judis
S.A.Nos.362 & 451 of 2019
For Appellant : Mr.K.Hariharan
For Respondents : Mr.V.Venkkatasamy for R3
Mr.D.Vijayakumar for R5 and R6
No Appearance for R1 and R4
R2 -Died
S.A. No.451 of 2019
1.Mrs.Anjalai
2.Saroja
...Appellants
Vs.
1.Mrs.K.Rathina
2.N.Kuppusamy
3.Smt.Raniammal
4.K.Moorthy
5.R.Lalitha
...Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure to set aside the Judgment and decree in A.S. No.240 of 2013
dated 04.10.2018 on the file of XVI Additional City Civil Court, Chennai
and confirming the decree in O.S. No.2976 of 2010 dated 05.04.2013 on the
file of the VIII Assistant City Civil Court, Chennai.
For Appellant : Mr.D.Vijayakumar
For Respondents : Mr.K.Hariharan for R4
Mr.V.Venkkatasamy for R3
2/16
https://www.mhc.tn.gov.in/judis
S.A.Nos.362 & 451 of 2019
R1-Not ready Notice Served
R2-Died
R5 – No Appearance
COMMON JUDGMENT
S.A. No.362 of 2019, had been filed by the third defendant in a suit for partition. S.A. No.451 of 2019, has been filed by the respondents 5 and 6, before the First Appellate Court, having been impleaded pending the appeal proceedings.
2. The parties are described as per their litigative status before the trial Court.
3. The plaintiff filed the suit for partition and separate possession of her 1/4th share. The plaintiff is the daughter of the first defendant. According to the plaintiff, the suit property originally belonged to Murugappa Nattar, her paternal great grand father and after his demise, it devolved upon his son, Natesa Nattar and his grandson, N.Kuppusamy, the 3/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019 first defendant. The second defendant is the mother of the plaintiff and third and fourth defendants are brother and sister respectively of the plaintiff.
4. It is the case of the plaintiff that on 14.10.1999, her father settled the suit property in favour of her mother, promising that the plaintiff would also be given a share. The plaintiff’s brother got married in the year 1998 and he lost his wife within five years and he is in possession of the suit property under permission granted by the mother, the second defendant. The plaintiff also came back to her parents because of strained relationship with the husband. According to the plaintiff, the plaintiff has equal share after the amendment to Hindu Succession Act, 1956 by Amendment Act 39 of 2005. However, since her brother refused to give any share in the coparcenery property, the suit came to be filed.
5. The first defendant, father filed a written statement stating that the suit is an ancestral property and he had settled the same in favour of his wife, the second defendant. According to the first defendant, it was made 4/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019 clear that the plaintiff as well as the defendants would be entitled to a 1/5 th share and the first defendant has no objection for the plaintiff being allotted one share.
6. The second defendant filed a written statement claiming that the settlement deed, was a valid document and it was agreed that the property would be divided into five shares and therefore, the plaintiff was entitled to 1/5th share.
7. The third defendant filed a written statement admitting the settlement deed, but denying the averments that the plaintiff would be entitled to a share. According to the third defendant the plaintiff has no right to claim partition.
8. The fourth defendant filed a written statement stating that the father executed a settlement deed in favour of the mother with an understanding that all the children would get an equal share and therefore, 5/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019 she has no objection for a partition decree being granted to the plaintiff.
9. The trial Court decreed the suit based on the pleadings and evidence of the parties and granted a 1/5th share to the plaintiff. Aggrieved by the preliminary decree, the son, the third defendant preferred A.S. No.240 of 2013. Pending the said Appeal, the sisters of the father i.e, that is paternal aunts of the appellant viz.,. Anjalai and Saroja, were impleaded as respondents 5 and 6 in the appeal, after the impleading application came up to this Court by way of CRP. Nos.384 and 385 of 2015. The First Appellate Court confirmed the judgment and decree of the trial Court and dismissed the Appeal filed by the third defendant.
10. Aggrieved by the said judgment and decree concurrently passed by the Courts below, the third defendant has preferred S.A. No.362 of 2019, and the paternal aunts of the third defendant respondents 5 and 6 in the Appeal Suit in A.S. No.240 of 2013, have preferred S.A. No.451 of 2019.
11. S.A. No.362 of 2019 was admitted by this Court on 15.12.2019 6/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019 on the following substantial question of law:
“Whether the conclusion of the First Appellate Court that daughters cannot be treated as coparceners by virtue of amendment to Hindu Succession Act by Central Act 39 of 2005, when their father was not alive as on 09.09.2005 is liable to be set aside as it goes against thelaw settled by Apex Court?”
12. S.A. No.451 of 2019 has not yet been admitted. However, if the substantial question of law framed in S.A. No.362 of 2019 is answered, it would also decide the S.A. No.451 of 2019, since both the Second Appeals are only against the judgment in A.S. No.240 of 2013.
13. I have heard Mr.K.Hariharan, learned counsel for the appellant in S.A. No.362 of 2019 and D.Vijayakumar, learned counsel for the appellant in S.A. 451 of 2019 and Mr.V.Venkkatasamy, learned counsel for third respondent in both the Second Appeals. I have also gone through the pleadings and the judgments of the Courts below, besides also the decisions on which reliance has been placed by the learned counsel on either side.
14. Mr.K.Hariharan, learned counsel for the appellant in S.A. No.362 7/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019 of 2019 would contend that when the property was admittedly an ancestral property at the hands of Kuppusamy, the alienation made by him by way of settlement in favour of the wife i.e.,, the second defendant, was a void document. Further, he would state that when admittedly, there has been no partition in the family, after the Amendment Act 39 of 2005 to Hindu Succession Act, 1956 and especially, after the pronouncement of the Hon’ble Supreme Court in Vineeta Sharma vs. Rakesh Sharma and Ors, reported in (2020) 9 SCC 1, the two sisters of the first defendant would also become entitled to an equal share in the coparcenery property. Therefore, according to learned counsel, Mr.K.Hariharan, the Courts below erred in going by the written statemnent of the parents that the property was settled by the father in favour of mother with an understanding that all of them would take an equal 1/5th share, the same being contrary to settled legal position.
15. Mr.D.Vijayakumar, learned counsel for the appellant would adopt the arguments of the learned counsel Mr.K.Hariharan. 8/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019
16. Per contra, the learned counsel for the third respondent Mr.V.Venkkatasamy, would contend that the settlement deed was on 14.10.1999, prior to the cut off date set out in the Amendment Act 39 of 2005 and therefore, the settlement would be saved and consequently, no interference is warrented with the concurrent findings of the courts below.
17. The short question therefore, that calls for an answer in these Second Appeals is the validity of the settlement deed executed by the first defendant, father of the appellant in S.A. No.362 of 2019 and sisters of the appellants in S.A. No.451 of 2019, in favour of his wife, the second defendant in the suit.
18. The parties all round admit that the suit property is an ancestral property, originally having been acquired by Murugappa Nattar way back in the year 1917. Thus, it is clear that the relevant Section to be applied for adjudicating the rights of the parties before the Court is only Section 6 of 9/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019 the Hindu Succession Act, subject to the amendment it has underwent and the effect of the same to the facts of the present case.
19. The son of Murugappa Nattar, Natesa Nattar died in the year 1990. He was blessed with a son viz., Kuppusamy, the first defendant and two daughters, Anjalai and Saroja who are the appellants in S.A. No.451 of 2019.
20. It is seen that the first defendant, Kuppusamy, assuming to be the absolute owner of the suit property settled the same in favour of his wife Rani Ammal, the second defendant. Kuppusamy and Rani Ammal, viz., defendants 1 and 2 had two sons viz., the third defendant and one Vijayan who died at a very young age as a minor and two daughters viz.., the plaintiff and the fourth defendant.
21. Firstly, I shall discuss the effect of the settlement deed executed by the first defendant in favour of the second defendant, before, proceeding 10/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019 to decide the entitlement of the parties to shares by way of partition. The settlement deed has been executed on 14.10.1999, which is admittedly, before 20th December 2004, the cut off date which has been mentioned in the proviso to Section 6 of the Hindu Succession Act.
22. The proviso to Section 6 of the Hindu Succession Act, saves any alienation or disposition, including partition or testamentary disposition of property which had taken place before 20.12.2004. Thus, it is clear that the proviso saves only partition and testamentary instruments in the nature of Will and does not cover settlement deeds or other forms of alienation.
23. In fact, in the case of Mrs.N.Kalavathi Vs. Sriramulu Naidur (deceased) and others reported in 2023 SCC Online Mad 3855, the Division Bench of this Court, held that an alienation made of coparcenary property without the consent of other coparceners would be a void document. I was part of the said Division Bench, which held so in the above case. Admittedly, when the settlement deed has been executed by the father, in 11/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019 favour of mother, his wife, without the consent of the other coparcener, the said settlement deed would only be a void document. Further, the proviso also does not save any alienations excepting partitions and dispositions by way of testamentary instruments. The explanation introduced to Section 6, by the Amendment Act 39 of 2005, also states that for the purposes of Section 6, ‘partition’ means only partitions which are duly registered under the Registration Act, or those that are effected by decree of Court. Section 6 has to be read as a whole and if done so, I do not find the proviso to Section 6 saving a settlement deed executed by one of the coparceners, prior to 20.12.2004.
24. Therefore, I have no hesitation to hold that the settlement deed dated 14.10.1999, is a void document and no legal rights would flow therefrom or thereunder.
25. Coming to the second aspect, admittedly, the suit property being ancestral property at the hands of Natesa Nattar and there being no partition 12/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019 in the family, on the birth of Kuppusamy, Anjalai and Saroja, each of them would become entitled to an equal 1/3rd undivided share (which gets crystalised on the death of Natesa Natta on 19.12.1990).
26. Thus, insofar as Kuppusamy, first defendant’s branch, admittedly, he had four children viz., the plaintiff and defendants 3 and 4 and another son Vijayan who died as a minor. On the death of Vijayan, his 1/12 th share (1/4th of 1/3rd ) would go to his mother i.e, the second defendant Rani Ammal. The plaintiff would be entitled to 1/15th share on her birth and similarly the defendants 3 and 4 would also become entitled to 1/15th share each on their respective dates of birth. The share of the father viz., Kuppusamy, first defendant which was originally 1/3rd stands diminished to 1/15th with the birth of his four children, especially when there has been no partition in the family at any point of time. I am fortified by the ratio laid down by the Hon’ble Supreme Court in Vineeta Sharma’s case, referred herein supra, holding that the daughters would also become coparceners in 13/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019 ancestral properties, by birth, like sons and such entitlement would be irrespective of factum of father being alive or not and/or their marriage.
27. Even though several decisions have been relied on by the learned counsel for the appellants and the learned counsel for the third respondent, I do not deem it necessary to labour over the same for the simple reason that the decision of the Hon’ble Supreme Court in Vineeta Sharma’s case, referred herein supra, atleast as of now has put at rest all controversy surrounding the entitlement of female heirs in coparcenary property and all the decisions that have been relied on by the learned counsel on either side are all either before Vineeta Sharma’s verdict by the Apex Court, or to cases where the daughter was held ousted on account of passage of time and intervening transactions by the male coparceners.
28. In fine, the Second Appeals are partly allowed and the shares of the parties are worked out as hereunder:
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(i) Appellants in S.A. No.451 of 2019, are entitled to 1/3rd share each in the suit property.
(ii) The Appellant in S.A.No.362 of 2019, is entitled to 1/15th share in the suit property and similarly, the first respondent /plaintiff, the second respondent/first defendant (father), third respondent/second defendant (mother) and fourth respondent (sister) are all entitled to an equal 1/15th share in the suit property, totalling in all to the remaining 1/3rd share in the suit property.
Cosequently, connected Miscellaneous Petitions are closed. No costs.
15.03.2024
Index :Yes/No
Internet : Yes/No
Neutral Citation :Yes/No.
Speaking order/Non-speaking order
rkp
To
1.The XVI Additional City Civil Judge, Chennai.
2.The VIII Assistant City Civil Court, Chennai.
15/16 https://www.mhc.tn.gov.in/judis S.A.Nos.362 & 451 of 2019 P.B.BALAJI, J.
rkp S.A. Nos.362 & 451 of 2019 and CMP. Nos.5270 & 7263 of 2019 15.03.2024 16/16 https://www.mhc.tn.gov.in/judis