Madras High Court
Amaravathi vs Nagalakshmi : 1St on 31 January, 2020
SA(MD)No.220 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserved 25/07/2024
Date of Pronounced 13/09/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.220 of 2021
and
CMP(MD)No.3125 of 2021
Amaravathi : Appellant/1st Respondent/
Plaintiff
Vs.
1.Nagalakshmi : 1st Respondent/Appellant/
7th Defendant
Chinnammal (Died)
2.Lakshmi
3.Puroshanam
4.Lakshmi
w/o.Late Palanisamy
5.Nirmala
6.Navash
7.The State of Tamil Nadu
Rep.by the District Collector,
District Collectorate,
Karur.
8.The District Revenue Office,
District Collectorate,
Karur.
9.The Special Tahsildar (L.A),
NH-67, having Office at
Thanthonimalai,
Karur.
10.National Highways Authority of India NH-67,
Project Division,
Karur.
Represented by its Project Director
: Respondents 2 to 10/
Respondents 3 to 11/
Defendants 2 to 6 & 8 to 11
https://www.mhc.tn.gov.in/judis
1/25
SA(MD)No.220 of 2021
PRAYER: Second Appeal is filed under Section 100 of
the Civil Procedure Code, to set aside the judgment and
decree passed in AS No.7 of 2019 on the file of the
District Court, Karur, dated 31/01/2020 reversing the
judgment and decree passed in OS No.212 of 2009 on the
file of the Additional Sub Court, Karur, dated
22/12/2017.
For Appellant : Mr.M.P.Senthil
For 1st Respondent : Mr.K.Suresh
For R2 to R6 : No appearance
For R7 to R9 : Mr.D.S.Nedunchezhian
Government Advocate
For 10th respondent : Mrs.J.Padhmavathi Devi
(No appearance)
J U D G M E N T
This second appeal is filed against the judgment and decree passed in AS No.7 of 2019 by the District Court, Karur, dated 31/01/2020 reversing the judgment and decree, dated 22/12/2017 passed in OS No.212 of 2009 by the Additional Sub Court, Karur.
2.The plaint averments in brief:-
One Ammaiyappa Gounder and Subbaraya Gounder were the sons of one Ramasamy Gounder. The property comprised in Survey No.242 measuring about 1.54 Acres belongs to them and they were in possession and enjoyment jointly till 19/08/1952. On 19/08/1952, Subbaraya Gounder for https://www.mhc.tn.gov.in/judis 2/25 SA(MD)No.220 of 2021 himself and as Guardian for his minor sons Kandasamy and Perumal sold his half share in that property to his brother namely Ammaiyappa Gounder, as mentioned above, by a registered sale deed. So, Ammaiyappa Gounder became the owner of the property for the entire extent situated in Survey No.242. The 2nd item was also acquired by Ammaiyappa Gounder. Third item is the residential house in the occupation of Ammaiyappa Gounder and he in possession and enjoyment as owner.
3.Ammaiyappa Gounder married one Kaliammal. Through that legal wedlock, his son Chidambaram and daughter Amaravathi the plaintiff herein were born. Ammaiyappa Gounder died on 10/07/1973 leaving behind the plaintiff and other legal heirs.
4.The mother of the plaintiff by name Kaliammal also died in the year 1985. So, the plaintiff and her brother Chidambaram were the only legal heirs, inherited the property and in possession. Chidambaram married the first defendant. They had childrens namely the defendants 2 and 3 and one Palanisamy. Palanisamy died in 1999. The first defendant is the mother of Palanisamy. The 4th defendant is the wife. The defendants 5 and 6 are his childrens. Chidambaram also died in 2001 leaving behind the children https://www.mhc.tn.gov.in/judis 3/25 SA(MD)No.220 of 2021 and four legal heirs. Expressing grievance over the joint possession, she demanded partition. But the defendants evading. Later came to know that the defendants 1 to 6 sold the 2nd item to the 7th defendant on 07/05/2003 without the consent and knowledge of the plaintiff. The defendants 8 to 11 are now taking steps to acquire a portion of the land in the 1st item for formation of the Four-Line Track of NH-66 Karur to Trichy road. Notice was issued on 09/04/2009 to the 10th defendant claiming compensation. In that circumstances, suit is filed for partition dividing the suit property into equal half share and allot one such share to the plaintiff; and for permanent injunction against the defendants 1 to 7 not to make encumbrance and for permanent injunction against the defendants 8 to 11 for acquiring the property without paying the compensation.
5.Statement of the 3rd defendant was adopted by the defendants 1 and 2. It is stated that the plaintiff is entitled to half share and the defendants 1 to 3 are entitled to 1/4th share and the defendants 4 to 6 are entitled to 1/4th share. With regard to the sale, it is stated that with the knowledge and consent of the plaintiff only, they sold the 2nd item to the 7th defendant. The defendants 8 to 11 acquired a portion of https://www.mhc.tn.gov.in/judis 4/25 SA(MD)No.220 of 2021 the 1st item for the formation of NH-47 Road. They were distributing the compensation, in which the plaintiff is entitled for half share and the defendants 1 to 6 as noted above.
6.The 4th defendant filed a statement adopted by the defendants 5 and 6. They also agreed with the plaintiff and the defendants 1 to 3 regarding the partition and share.
7.The 7th defendant filed a written statement stating that her age was about 74 years. The plaintiff age is also about 74. She is waiting for a very long time and after attaining the advance age only, the suit is filed. Ammaiyappa Gounder died on 10/07/1973. The plaintiff did not claim any partition. After a lapse of 36 years of the death, the suit is filed. Even during the life time of the mother, no claim was made by the plaintiff. So, the defendants 1 to 6 were in exclusive possession of the property to the exclusion possession of the plaintiff. Soon-after the death of the father, the partition opened on 10/07/1973. The plaintiff is not entitled for any share over the property, either under Hindu Succession Act, 1956 or under the amended provision or under the provision of the Tamil Nadu Act. He purchased the 2nd item https://www.mhc.tn.gov.in/judis 5/25 SA(MD)No.220 of 2021 for valid consideration on 07/05/2003. Ever-since from the date of purchase, she is in possession and enjoyment. So, the joint enjoyment or joint possession claimed by the plaintiff is not legal and proper. The 7th defendant being the bona-fide purchaser for valid consideration, her right must be protected. After the acquisition proceedings, the 10th defendant paid compensation to the defendants 1 to 6. No share was paid to the plaintiff.
8.On the basis of the pleadings, the trial Court has formulated the following issues:-
(1)Whether the plaintiff has any
share over the plaint schedule
properties?
(2)If so, what is the share of the
plaintiff entitled to?
(3)What are the reliefs the
plaintiff entitled to?
(4)Whether the plaintiff is
entitled to 1/2th share in the suit
property?
(5)Whether the defendants 1 to 3
are entitled to 1/4th share in the suit properties?
https://www.mhc.tn.gov.in/judis 6/25 SA(MD)No.220 of 2021 (6)Whether the defendants 4 to 6 are entitled to 1/4th share in the suit properties?
9.Before the Trial court, on the side of the plaintiff, 2 witnesses were examined and 10 documents were marked. On the side of the 7th defendant, one witness was examine and 3 documents were marked. One Rathinavel was examined as Court witness. Through him, 4 documents were marked.
10.At the conclusion of the trial process, the trial court decreed the suit for partition by dividing the suit properties and allotted 1/4th share in the 1st item and 1/2th share in the 2nd item and 3rd item of the suit property to the plaintiff and put her in separate possession; permanent injunction was granted restraining the defendants 1 to 7, their men, agents, or any one on their behalf from alienating the suit properties so as to affect the plaintiff's lawful share over the suit properties till the lawful partition is worked out and also restrained the defendants 8 to 11 and their men, servants, agents, subordinate or any one from disbursing the entire amount of compensation for the acquisition made by them over the 1st item of the suit property for formation of NH-67 road, either to the defendants 1 to 6 or to anyone else.
https://www.mhc.tn.gov.in/judis 7/25 SA(MD)No.220 of 2021
11.Against which, AS No.7 of 2019 was preferred by the plaintiff before the District Court, Karur. The appellate court partly allowed the appeal and modified the judgment and decree to the extent that the plaintiff is entitled to 1/4th share in the 2nd item of the suit properties. In other aspects, upheld the judgment and decree of the trial court.
12.Against the finding of the first appellant court, this second appeal has been preferred by the plaintiff.
13.At the time of admission, the following substantial question of law is framed:-
Whether the judgment and decree of the lower appellate court could be sustained, in view of the judgment of the Hon'ble Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others reported in 2020(9) SCC 1: 2020(5) CTC 302?
14.Heard both sides.
15.The relationship between the parties is not disputed. Original ownership of the property is also not https://www.mhc.tn.gov.in/judis 8/25 SA(MD)No.220 of 2021 disputed. The plaintiff is the daughter of Ammaiyappa Gounder born through his wife Kaliammal. Ramasamy Gounder had two sons namely Ammaiyappa Gounder the father of the plaintiff and Subbaraya Gounder. The property originally belonged to Ramasamy Gounder. It is also admitted that Subbaraya Gounder sold his undivided half share to Ammaiyappa Gounder on 19/08/1952. So, Ammaiyappa Gounder became the absolute owner of the entire properties.
16.Now, according to the plaintiff, the 2nd item of the property was purchased by Ammaiyappa Gounder out of his own funds and earnings. The 3rd item is the residential house. Chidambaram the brother of the appellant died. There is no issue on that legal heirs. Now, according to the plaintiff, till 2007 all the properties were enjoyed jointly by virtue of the amended Act 39 of 2005, she is entitled for half in the entire properties. The 2nd item is in possession of the 7th defendant purchased from the defendants 1 to 6. The defendants 1 to 6 admitted the case of the plaintiff and consented for a decree to be passed. But the 7th defendant is making objection stating that the property purchased by her namely the 2nd item was the self-acquired property of Ammaiyappa Gounder. It is not his ancestral property. The plaintiff was never in joint possession of the https://www.mhc.tn.gov.in/judis 9/25 SA(MD)No.220 of 2021 property. She is aged about 74 and married several years back and residing away from the village. Since the father died in 1973, the partition opened on that date. But till the filing of the suit, no claim was made by her. She filed the suit in the year 2009. At the time of passing the final decree, the 2nd item may be allotted to the defendants 1 to 6 so that her right must be protected. This was the short point raised by the 7th defendant before the appellate court and the trial court.
17.Appeal was preferred by the 7th defendant against the preliminary decree passed by the trial court.
18.Now we will go to the findings of the appellate court. The first point of ouster taken by the 7th defendant was negatived for valid reasons. Because, the plea of ouster cannot be taken by a stranger. The 7 th defendant is the stranger to the family and properties, till she purchased the same from the defendants 1 to 6. Being the purchaser of the 2nd item on 07/05/2003, she is not entitled to make any such plea of ouster. If at all, the defendants 1 to 6 ought to have made such an objection. But, as mentioned above, they consented for a decree to be passed. Even otherwise, there is no evidence on record to show that the plaintiff was not permitted to https://www.mhc.tn.gov.in/judis 10/25 SA(MD)No.220 of 2021 enjoy the property commonly. Simply because, the plaintiff was married and settled elsewhere away from the village, the joint possession is permissible under law as constructive possession, unless ouster is established, is a legal one. Even though the father died in 1973, it was her evidence that till the death of Chidambaram, there was no issue between them. Even after the death of Chidambaram, the defendants 1 to 6 did not make any trouble to her. After the death of the father, Chidmambaram was giving share in the profit. So, the ouster plea raised by the 7th defendant was rightly rejected by the appellate Court.
19.The 2nd item, which was purchased by the 7th defendant was kept vacant. It is admitted by PW1 during the course of evidence stating that after purchase, no cultivation was undertaken and kept vacant. So, the 7th defendant cannot be permitted to say that after her purchase, she was in absolute possession of the 2 nd item of the property to the exclusion of the other sharer namely the plaintiff herein. Even otherwise, she cannot set up a plea of adverse possession, since she purchased the property only in the year 2003. The suit was filed in the year 2005 well within a period of limitation. On that ground also, the plea taken by the 7th defendant is not https://www.mhc.tn.gov.in/judis 11/25 SA(MD)No.220 of 2021 legal. So, the right of the plaintiff over the property did not loss or extinguished by ouster.
20.Now let us see whether the 2nd item of the property is the self-acquired property of Ammaiyappa Gounder or ancestral property. Absolutely, there is no evidence on record to show that the 2nd item was purchased by Ammaiyappa Gounder, either out of his own funds or from any other independent source. In the absence of any such documentary proof to show the same, it must be construed only as ancestral property. Since the other properties, which are ancestral in nature were in the possession of Ammaiyappa Gounder, he became the owner of the entire property by virtue of sale made by his own brother Subbaraya Gounder, which was also not disputed. So, on that account, the appellate court declared that the 2nd item of the suit property also the ancestral property. But there is no counter appeal by the 7th defendant or cross appeal as the case may be. Even, it is admitted by the respondents at the time of argument that there was no sale deed in respect of 2nd item of the property in the name of Ammaiyappa Gounder.
21.Now coming back to the substantial question of law, as mentioned above, in Vineeta Sharma Vs. Rakesh https://www.mhc.tn.gov.in/judis 12/25 SA(MD)No.220 of 2021 Sharma and others 2020(9) SCC 1 : 2020(5) CTC 302 to hold that the death of the ancestor is not a deciding factor and the daughter is also entitled at par with the son, she can get the equal share. Appellate court is of the view that the father died on 19/1/1973. As per section 6 of the unamended Hindu Succession Act, partition opened on that date. Notional partition occurred. By virtue of the notional partition, the father, the deceased Ammaiyappa Gounder and the deceased son namely Chidambaram are entitled to get half share. The plaintiff is entitled to share in father's share. By doing so, it is decided that in the entire property, the plaintiff is entitled to 1/4th share.
22.But, it is mentioned by the respondents herein, the sale was effected before amendment. So, the sale standing in the name of the 7th defendant is not affected by Central Act. Only in respect of the property other than sold, the plaintiff is entitled for equal share by virtue of the judgment of the Hon'ble Supreme Court in Vineeta Sharma's case. Equally. it is the contention of the appellant/plaintiff that the date of death of Ammaiyappa Gounder is not the deciding factor in view of the settlement of law in that judgment. She is entitled for half share in all the properties. Which one of the https://www.mhc.tn.gov.in/judis 13/25 SA(MD)No.220 of 2021 contentions is legally sustainable is the short point arises for consideration here.
23.Section 6 of the original Act is extracted hereunder for better appreciation:-
“6.Devolution of interest in coparcenary property.-When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, unless this Act and not by survivorship.
Explanation I-For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed https://www.mhc.tn.gov.in/judis 14/25 SA(MD)No.220 of 2021 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.”
24.Section 6 of the Amendment Act may extracted herein for better appreciation.
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 https://www.mhc.tn.gov.in/judis 15/25 SA(MD)No.220 of 2021 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 in, 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, 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,— https://www.mhc.tn.gov.in/judis 16/25 SA(MD)No.220 of 2021
(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.
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.
https://www.mhc.tn.gov.in/judis 17/25 SA(MD)No.220 of 2021 (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 https://www.mhc.tn.gov.in/judis 18/25 SA(MD)No.220 of 2021 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.”
25.By virtue of the birth, the plaintiff is entitled to equal share along with the son. But two important conditions. It will not affect any partition or testimonial disposition or alienation made by the Amendment Act. So, if the amended Act is applied to the present issue, then what is told by the 7th defendant is correct. Her purchase is saved. But here, if mended Act is applied, the suit in respect of 2nd item ought to have been dismissed.
https://www.mhc.tn.gov.in/judis 19/25 SA(MD)No.220 of 2021
26.This was invoked by the appellate court to decide that notional partition ought to have been presumed, on the date of the death of Ammaiyappa Gounder I.e., in the year 1973. On his death, Ammaiyappa Gounder was entitled to half share in all the properties. In the half share only, the plaintiff is entitled for equal share with that of the son. If the contention of the appellant/plaintiff is accepted that the date of death of Ammaiyappa Gounder is not the deciding factor, then as per the amended provision, she is entitled for half share in all the properties. But this was not the law laid down by the Hon'ble Supreme Court in Vineeta Sharma's case.
27.Para 137.4 in Vineeta Sharma Vs.Rakesh Sharma and others (2020(9)SCC 1) is the deciding factor, which answers the contention on the part of the appellant.
“137.4.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 https://www.mhc.tn.gov.in/judis 20/25 SA(MD)No.220 of 2021 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.”
28.So, reading of this para will indicate that on the date of the death of Ammaiyappa Gounder, the share of the sharers namely co-parceners ascertained. As mentioned above, if it is so ascertained, then Ammaiyappa Gounder got half share in all the properties, in which the plaintiff is entitled for half share namely 1/4th share. So, the conclusion reached by the appellate court does not suffer from any infirmity. So, the contention raised by both parties rejected namely the plaintiff and the 7th defendant herein.
29.In respect of the 2nd item of the property, in which the plaintiff claims half share and so far as other https://www.mhc.tn.gov.in/judis 21/25 SA(MD)No.220 of 2021 properties are concerned, she claims half share in all the properties. It is not correct. She is entitled only for 1/4th share in all the properties. The purchase made by the 7th defendant in respect of the 2nd item is not binding upon the share of the plaintiff. If at all, the 7th defendant can request the court during the final decree proceedings to allot the entire 2nd item to the share of the defendants 1 to 6, so that in equity, she can get the entire property of the 2nd item. Except that right the 7th defendant cannot make any claim over the entire 2nd item.
30.So, with the above said, this second appeal stands dismissed confirming the judgment and decree of the appellate court as modified in respect of the 2nd item also. No costs. Consequently, connected Miscellaneous Petition is closed.
13/09/2024 Index:Yes/No Internet:Yes/No er https://www.mhc.tn.gov.in/judis 22/25 SA(MD)No.220 of 2021 To,
1.The District Judge, Karur.
2.The Additional Sub Judge, Karur.
3.The Section Officer, VR/ER Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 23/25 SA(MD)No.220 of 2021 G.ILANGOVAN, J er SA(MD)No.220 of 2021 13/09/2024 https://www.mhc.tn.gov.in/judis 24/25 SA(MD)No.220 of 2021 https://www.mhc.tn.gov.in/judis 25/25