Madras High Court
D.V.Narayana Sah(Died) vs A.G.Nagammal Bai on 26 September, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:26.09.2008
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
A.S.NOs.786 and 886 Of 1993
and 375 of 1995
1. D.V.Narayana Sah(died)
2. D.N.Kalavathi Bai
3. D.N.Vijayashankar Shah
4. K.Sharmila .. Appellants in A.S.No.786 of 1993
Appellants 2 to 4 brought on
record as LRs.of the deceased
sole appellant vide order of
Court dated 5.3.2007 made
in CMP.432 of 2007 vs.
1.A.G.Nagammal Bai
2.D.N.Sundari Bai
3.D.N.Gayathri Bai
4.D.N.Sripriya
5.Minor D.N.Lokesh ... Respondents in A.S.No.786 of 1993
rep.by his mother and
natural guardian D.N.Sundari Bai
2nd defendant
1.D.N.Sundari Bai
2.D.N.Gayathri Bai
3.D.N.Sripriya
4.Minor D.N.Lokesh .. Appellants in A.S.No.375 of 1995
vs.
1.A.G.Nagammal Bai
2.D.V.Narayana Sha(died)
3.D.N.Kalavathi Bai
4.D.N.Vijayashankar Sab
5.D.N.Sharmila Bai .. Respondents in A.S.No.375 of 1995
RR3 to 5 brought on record as
LRs of the deceased 2nd respondent
vide order of Court dated 5.7.2007
made in CMP No.1931 of 2007
A.G.Nagamma Bai ... Appellant in A.S.No.886 of 1993
vs.
1.T.V.Narayana Sha(did)
2.T.N.Sundari Bai
3.T.N.Gayathri
4.T.N.Sripriya
5.Minor T.N.Logesh
rep.by his mother and natural
guardian T.N.Sundari Bai
6.D.N.Kalavathy Bai
7.D.N.Vijayashankar Sab
8.D.K.Sharmila Bai ... Respondents in A.S.No.886 of 1993
RR6 to 8 brought on record as
Lrs.of the deceased first
respondent vide order of
Court dated 23.3.2007 in
C.M.P.No.1100 of 2007
Appeals preferred against the judgment and decree dated 7.7.1993 passed in O.S.No.57 of 1986 by the Subordinate Judge, Kancheepuram.
For Appellants:
Mr.T.V.Ramanujam, Senior counsel in A.S.No.786 of 1993
Mr.T.R.Rajagopalan, Sr.counsel for Mr.Sukumaran
in A.S.886/93
Mr.S.V.Jeyaraman, Senior counsel for Mr.S.Raghu
in A.S.No.375 of 1995
For Respondents
Mr.T.R.Rajagopalan,Sr.counsel for Mr.H.N.Markandan
in A.S.786 of 1993
Mr.T.V.Ramanujam Senior counsel in A.S.886 of 1993
and A.S.No.375 of 1995
JUDGMENT
These appeals are focussed as against the judgement and decree dated 7.7.1993 passed by the Subordinate Judge, Kancheepuram, in O.S.Nos.57 of 1989, which is one for partition. For convenience sake, the parties are referred to here under according to their ligitative status before the trial Court.
2. Niggard and bereft of details, the case of the plaintiff, as stood exposited from the plaint could be portrayed thus:
(a) The deceased brothers namely Vengoba Shah and Doma Shah had joint ancestral property. Vengoba Shah and his wife Lakshmi Bai gave birth to three children, namely (i)the plaintiff-Nagammal Bai, (ii) the deceased D1, D.V.Narayana Shah and (iii) the deceased D.V.Nagoo Shah. D2 is the wife of deceased Nagoo Shah and D3 to D5 are the children of Nagoo Shah.
(b) The father of the plaintiff Vengoba Shah died in the year 1949 intestate leaving behind his aforesaid wife and children of his legal heirs. Even though during the year 1949, as per the Hindu law which was obtaining at that time, the plaintiff being the daughter of Vengoba shah had no share in the joint property listed in the 'A' Scheduled property nonetheless she had a right to get her marriage solemnised from out of the funds of the joint family.
(c) The mother of the plaintiff and her two brothers were entitled to 1/3rd share each in the suit property, consequent upon the death of Vengoba Shah. In fact, the plaintiff's mother Lakshmi Bai, as the widow of Vengoba Shah had limited estate in the suit property and she was in joint possession.
(d) After the Hindu Succession Act 1956, having come into vogue, her limited life estate got enlarged as an absolute one and on her death, during the year 1986, her 1/3rd share devolved upon the plaintiff and her two brothers. Accordingly, the plaintiff is entitled to 1/9th share in the suit property.
(e) The plaintiff's mother also at the time of her death left behind her silver vessels which were given to her by her mother as described in the 'B' Schedule of the plaint. The plaintiff being her daughter is entitled to 1/3rd share in the sridhana jewels and silver items of her mother.
(f) The plaintiff's mother, during her life time, openly declared that all her silver articles and three rows gold chain weighing 15 sovereigns should be taken by the plaintiff only and the plaintiff's brothers should take the diamond ring and three pairs of gold bangles equally. Despite the plaintiff having made demands to her brothers for partition, they denied her rights over the 'A' Scheduled properties. Relating to silver articles, they stated that only 14 items of articles were available and the gold chain was kept in the pooja and later on they would give it to her, but nothing transpired thereafter. After issuance of notice, the plaintiff filed the suit seeking partition and for consequential reliefs.
2. Remonstrating and refuting, gainsaying and impugning the allegations/averments in the plaint, D1 filed the written statement, the gist and kernel of it would run thus:
(i) The relationship among the parties is an admitted one. The plaintiff's mother Lakshmi Bai was not a co-owner along with her two sons as per law. Lakshmi Bai, the plaintiff's mother, during her life time, had given up her interest in the joint family, under a family arrangement in consideration of having received a sum of Rs.10,000/- from 1). Alli Bai-wife of Doma Shah, the brother of plaintiff's father (2) the second defendant and (3) Nagoo Shah-the husband of D2 and the document dated 24.08.1986 executed by the plaintiff's mother would evidence the same.
(ii) The plaintiff's mother during her life time consented for the partition which emerged between the sons of Vengoba Shah on one side and Doma Shah on the other side as per partition deed dated 21.11.1985 relating to the entire joint family property and in that 'A' Scheduled property was allotted to the sons of Vengoba Shah.
(iii) The plaintiff's mother was not in joint possession of any portion of the 'A' Scheduled property. In the said partition deed dated 21.11.1985, all the joint properties except the property described in the 'E' Schedule therein, were got divided and the 'E' Scheduled properties therein were kept jointly. Here in the suit properties, the 'E' scheduled properties in the partition deed are also found referred to and in such a case, the suit itself is bad for non-joinder of legal heirs of Doma Shah. The suit framed as such is not tenable.
(iv) In fact, out of the said 'E' Scheduled properties referred to in the said partition deed dated 21.11.1985, most of the properties were sold also. In the suit property, very many other properties are found described even though they do not belonged to the joint family at all. The 'B' Scheduled properties of the plaint are not available at all. The plaintiff is not at all entitled to any property.
Accordingly, the defendant prayed for the dismissal of the suit.
3. Tersely and briefly the averments as found set out in the written statement of D2 and adopted by D3 to D5, which is mostly in concinnity with the written statement filed by D1 would run thus:-
Lakshmi Bai was not entitled to any share as set out in the plaint. If at all Lakshmi Bai is entitled to any share it is only to an extent of 1/9th share in the entire estate of the said large joint family. The 'B' Scheduled properties are not in existence at all and Lakshmi Bai never possessed those movable items. The allegations in the plaint relating to gold chain weighing 50 sovereigns are false. Whatever interest Lakshmi Bai had, she relinquished the same after receiving a sum of Rs.10,000/- from Alli Bai-wife of Doma Sha.
Accordingly, D2 prayed for dismissal of the suit.
4. The trial Court framed the issues. During trial, the plaintiff examined herself as P.W.1 and Exs.A1 to A16 were marked on her side. On the defendants' side D1 examined himself as D.W.1 and Ex.B1 to B9 were marked on the defendants' side.
5. Ultimately, the trial Court decreed the suit by allotting 1/9th share in some of the items in 'A' Scheduled property. Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, two appeals have been filed, namely, A.S.786 of 1993 by D1 (D1 died during pendency of the appeal and his L.Rs. were brought on record as set out supra) and A.S.No.375 of 1995 by D2 to D5.
6. The gist and kernal of the grounds of appeal as stood exposited from the memorandum of appeal in A.S.No.786 of 1993 filed by D1 would run thus:-
(a) The judgement and decree of the trial Court, ignoring Exs.B1 and B2 is erroneous, those documents were not hit by Sections 35 and 49 of the Indian Stamp Act.
(b) The original suit was bad for want of adding the legal heirs of deceased Doma Shah as parties to the suit.
(c) In view of the plaintiff having challenged the genuineness of the partition deed, in which Doma Shah's was a party, the non impleadment of the LRs of Doma Sha is fatel to the case of the plaintiff.
(d) Lakshmi Bai, after receiving a sum of Rs.10,000/-, relinquished her whatever share in the properties and that too it happened after the said partition. She in view of the principle of ouster and abandonment, simply relinquished her right.
(e) The plaintiff also had not questioned the various alienations made by the defendants, obviously after knowing that Lakshmi Bai relinquished her right on receipt of Rs.10,000/-.
Accordingly D1 prayed for setting aside the judgement and decree of the trial Court and for dismissing the original suit.
7. The pith and marrow of the memorandum of appeal filed by D2 to D5(A.S.No.375 of 1993) would reiterate more or less inconsonance with the grounds of appeal filed in A.S.No.786 of 1993.
8. The plaintiff filed A.S.No.886 of 1993 being aggrieved by and dissatisfied with the dismissal of the her claim for partition of the movable properties on the following grounds among others.
(a) The trial Court was not justified in rejecting the claim of the plaintiff for partitioning the movable items set out in the 'B' schedule of the plaint and that too ignoring the admission made by D.W.1(D1) himself.
(b) the trial Court was not justified in rejecting the 1/3rd share of the plaintiff in 'B' scheduled properties on the sole ground that she was given sufficient jewels at the time of her marriage.
9. The points for consideration are as to:
(i) Whether Lakshmi Bai had women's estate and was in joint possession of the suit property even anterior to the commencement of the Hindu Succession Act 1956? and thereafter whether by virtue of Section 14(1) of the Hindu Succession Act, her such interest over the suit property got enlarged as an absolute one and if so whether during her life time she was entitled to 1/3rd share in the suit properties?
(ii) Whether the suit is bad for non-joinder of necessary parties?
(iii) Whether Lakshmi Bai validly relinquished her 1/3rd share in the suit property?
(iv) Whether Exs.B1 and B2 would prove that Lakshmi Bai relinquished her right over the suit properties?
(v) Whether the plaintiff is entitled to suit properties as Class-I heir of the deceased Lakshmi Bai or as a co-parcener within the meaning of the provisions of the Hindu Succession Act 1956?
(vi) Whether the 'B' Schedule movable properties are in existence? If so, whether the plaintiff is entitled to a share in them also?
(vii) Whether the is any infirmity in the judgement and decree of the trial Court.
10. Points (i) & (ii): These two points are taken together for discussion as they are inter-woven and interlinked with each other.
11. The warp and woof of the argument of learned Senior counsel Mr.T.V.Ramanugam for the LRs of D1 would be to the effect that the suit property and other properties originally belonged to the joint family comprised of Vengoba Shah and Doma Shah, both sons of Vengoo Shah; Vengoba Shah died in the year 1949 itself, whereupon his sons, namely, D1-Narayanan Shah and the deceased Nagoo Shah, the propositus of D2 to D5, have been enjoying the suit properties along with Doma Shah; they got partitioned the large joint family properties as per Ex.A1-the partition deed dated 21.11.85; Doma Shah died on 29.4.1986 leaving behind his wife and children and they are not parties to the suit; the fact remains that as per the schedules in Ex.A1, the properties were allotted to the parties therein and the 'E' Scheduled property was reserved as the common property without being partitioned; now some of the items in 'E' Scheduled property also have been added in the original suit, without impleading the LRs of Doma Shah; Vengoba Shah's wife Lakshmi Bai, as on the date of death of Vengoba Shah in the year 1949, was not entitled to any share in the suit property; the plaintiff being the daughter of Vengoba Shah cannot lay claim over the suit property either as a co-parcener or as a legal heir of Lakshmi Bai; the plaintiff, in view of her averments in the plaint, virtually challenging and impugning the very partition as contained in Ex.A1 itself, should have impleaded the legal heirs of Doma Shah; and as such, the suit is bad for non-joinder of necessary parties, but the trial Court failed to take into consideration the said vital point; even for argument sake it is taken that Lakshmi Bai had right over the undivided large joint family property, as per Hindu Women's Rights to Property Act, 1937 (18 of 1937) and that she had her share in the property then the plaintiff claiming under Lakshmi Bai should have included all the joint family properties, which belonged to the joint family comprising of Vengoba Shah and Doma Shan, but she has not done so; even assuming for argument sake that Lakshmi Bai had share in such undivided large joint family property, she relinquished her right after accepting the sum of Rs.10,000/- in a family arrangement, which emerged earlier to Ex.A1 and subsequently Ex.B1 emerged with reference to the factum of the sum of Rs.10,000/- having been paid by the parties to the partition deed Ex.A1 to Lakshmi Bai; it is also a fact as revealed by Ex.B2 dated 24.8.1986 that out of the said sum of Rs.10,000/- a sum of Rs.6,000/- was paid by Lakshmi Bai to the plaintiff; as such, the conduct of Lakshmi Bai and the plaintiff herein would amply and pointedly make the point clear that the plaintiff herein is having no right to claim any share in the suit property.
12. The learned Senior counsel Mr.S.V.Jeyaraman appearing for D2 to D5 would put forth his argument in concinnity and inconsonance with the submission made by the learned Senior counsel for D1's LRs, in addition to having elaborated in depth those points.
13. On the contrary, pithily and precisely the argument as advanced by the learned Senior Counsel Mr.T.R.Rajagopalan for the plaintiff would be to the effect that as per the Hindu Women's Right to property Act,1937(18 of 1937) Lakshmi Bai was in joint possession of the joint family properties even anterior to the commencement of the Hindu Succession Act 1956, which right got enlarged by virtue of Section 14(1) of the Hindu Succession Amendment Act in her favour; ignoring her share, the partition effected as per Ex.A1 is not binding on her and her legal heir, namely, the plaintiff; at no point of time Lakshmi Bai relinquished her right over such properties; she did not execute any relinquishment deed or Ex.B1; in fact, the recitals in Ex.B1 would in no way perspicuous of any relinquishment relating to the suit property but it refer to some marriage expenses; the suit is not bad for non-joinder of necessary parties for the reason that the plaintiff being dominus litis is satisfied with the claiming of her right in the suit properties and she is not choosy in getting allotted her share in the properties which were already in the possession and enjoyment of the legal heirs of Doma Shah and the plaintiff is entitled to 1/9th share in the suit properties, so to say consequent upon Vengoba Shah's death Vengoba Shah's half share in the joint family devolved upon his wife Lakshmi Bai and his two sons Narayan Shah and Nagoo Shah and on the death of Lakshmi Bai her 1/3rd share devolved upon her daughter the plaintiff herein and her two sons, namely, Narayan Shah and Nagoo Shah and accordingly, the plaintiff is entitled to 1/9th share in the entire suit property as described in the schedule of the plaint.
14. Alternis vicibus the learned Senior counsel Mr.T.R.Rajagopalan for plaintiff would also develop his argument alternatively that from one other angle also i.e by virtue of the Hindu Succession (Amendment) Act 2005 (39 of 2005) the plaintiff is deemed to be a co-parcener by herself in the coparcenary of Vengoba Shah and accordingly her share cannot be denied.
15. The relationship among the parties is an admitted one. Indubitably and indisputably the suit property and other properties happened to be the joint family properties of the brothers, namely, Vengoba Shah and Doma Shah sons of Vengoo Shah and in such a case it is palpably and pellucidly clear without giving room for any challenge that those two brothers are entitled to half share each. Wherefore it is obvious and axiomatic that the respective heirs of Vengoba Shah and Doma Shah should be satisfied with the respective propositus shares and nothing more.
16. Consequent upon Vengoba Shah's death in the year 1949, as per the Hindu Law then obtaining, the status of Vengoba shah's wife Lakshmi Bai was that of a Hindu widow entitled to right as a sharer under the concept of Women's estate and accordingly Lakshmi Bai and her two sons, namely, Narayan Shah and Nagoo Shah were entitled to 1/3rd share each in the half share of Vengoba Shah. At this juncture it is just and necessary to refer to the Hindu Women's Right to Property Act, 1937, an excerpt from Section 3 is extracted here under for ready reference:
"3.Devolution of property-(1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leavingseparate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son:
Provided further that the same provision shall apply mutatis mutandis to the vidow of a predeceased son of a predeceased son.
(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section(3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner.
(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies.(emphasis supplied)
17. It is therefore crystal clear that as on the date of death of Vengoba Shah, his wife Lakshmi Bai had 1/3rd share in the half share of Vengoba Shah, as the remaining 2/3rd share devolved upon Vengoba Shah's two sons namely, Narayan Shan and Nagoo Shah. In such a case, it is not known as to how it could be contended that Lakshmi Bai had no right at all in the share of Vengoba Shah when he died in the year 1949. Witnesses might lie but the circumstances would not lie. Here the conduct of the defendants themselves in placing reliance on Ex.B1 would speak volumes that as per their own version, they entered into a written partition deed-Ex.A1 without adding Lakshmi Bai as one of the parties to it. But, subsequently realising Lakshmi Bai's interest as per the aforesaid provision of law, allegedly got executed from her Ex.B1 and that they relied upon Ex.B1 as the one evidencing the fact that Lakshmi Bai relinquished her whatever right she had in the large joint family property. However, Ex.B1 is disputed by the plaintiff; the other relevant facts pertaining to it would be discussed infra at the appropriate stage.
18. It is therefore crystal clear that ignoring Lakshmi Bai whatever partition emerged among the other legal heirs of Vengoba Shah and Doma Shah would not bind the plaintiff. Here the plaintiff claims 1/3rd share in the 1/3rd share of Lakshmi Bai in the share of Vengoba Shah. It is therefore explicitly and palpably clear that the plaintiff's contention is well founded.
19. The learned Senior counsel for the defendants would advance his argument that according to the contention of the plaintiff herself the said partition as per Ex.A1 would not bind Lakshmi Bai and in such a case, the plaintiff should have taken steps to implead the legal heirs of Doma Shah for the reason that the share of Lakshmi Bai cannot be carved out from the shares allotted to Narayan Shah and Nagoo Shah only, leaving the shares allotted to Doma Shah in tact.
20. Such an argument cannot be countenanced and upheld as specious one for the reason that the plaintiff is the dominus litis and she is not choosy in getting her share allotted after being located in the items allotted to Doma Shah. Narayan Shah and Nagoo Shah voluntarily and volitionally without any demur agreed to the allotment of properties allotted to Doma Shah and simultaneously they were satisfied with the items of properties representing deceased Vengoba Shah's share having been allotted to them.
21. The learned counsel for the plaintiff would torpedo the argument put forth on the defendants' side by pointedly pointing out that even though the said 'E' Schedule of properties in Ex.A1 are figuring as items 16, 17, 19 to 24 and 75 in Schedule-II of the plaint and also items 1 to 7 in Schedule-III of the plaint, the trial Court rejected the claim for partition in respect of items 3, 4 and 5 in Schedule-III of the plaint, which are covered by Ex.B4 and Ex.B5-the sale deeds executed by Doma Shah, Nagoo Shah and Narayan Shan and the trial Court also dismissed the suit items 5, 6, 10, 13 and 39 to 41 in Schedule-II, which were sold as per Ex.B6 to Ex.B9. It is also pertinent to note that Ex.B6-sale deed was executed by Nagoo Shah and Ex.B7, Ex.B8 and Ex.B9 were executed by D2 to D4-the legal heirs of Nagoo Shah. As such, according to learned Senior counsel for the plaintiff non impleadment of the legal heirs of Doma Shah is not fatal to the case of the plaintiff; if at all at the execution stage, after final decree, the heirs of Doma Shah had any claim over those items included in the 'E' schedule of Ex.A1 then in that case the concerned Court could adjudicate on that as to whether the final decree would be operative in respect of those items, in the absence of such necessary parties.
22. Per contra, the learned Senior counsel for the defendants would counter such an argument emanated from the plaintiff's side by projecting and putting forth that vital issues like non-impleadment of the parties cannot be relegated to the executive Courts.
23. No doubt, the issue relating to non-impleadment of necessary parties to the suit is a vital one, which deserves to be considered even at the trial stage of the case itself but this is singularly a singular case, in which the legal heirs of Doma Shah, as per the contention of defendants themselves, are having no claim over the properties allotted to the share of Vengoba Shah as per Ex.A1; over and above that the legal heirs of Doma Shah also alienated several items along with D1. An excerpt from paragraph 6 of the written statement would run thus:-
"....... This defendant further submits that out of the properties which are kept in common under the 'E' schedule of the partition deed dated 21.11.1985 in Kalur Village and in Salabogam Village except two items of the property in Salabogam Village all the other items have been alienated tto so may third parties by this defendant and his brother and his patenal uncle already and those properties are not available at all to the family."
It is therefore crystal clear that the trial Court did not order for partition of the alienated items in the 'E' schedule of Ex.A1 and as has been correctly argued by the learned Senior counsel for the plaintiff that the apprehended objection from the heirs of Doma Shah, if at all there is one, the same could be raised by them and it could be done even at the execution stage and at that time the Court would be competent to decide on it to the risk of the plaintiff herein. Wherefore it is clear that each case has to be decided on its own merits.
24. Here my above discussion supra would exemplify and indicate that Doma Shah and also his legal heirs, without having any regard for the valuable right of Lakshmi Bai, in joining hands with the defendants, try to deprive the rights of Lakshmi Bai and in such a case the aggrieved party cannot be pushed to the corner and made to suffer further to undergo once again the ordeal of initiating a litigation afresh impleading even the legal heirs of Doma Shah. In a partition suit, the final decree proceedings as well as the EP proceedings gain significance, as during preliminary decree stage only broadly the rights of the parties are determined and other incidental facts and points to be decided could be relegated to the final decree stage and there is legally nothing wrong in it.
25. The learned Senior counsel for the plaintiff would also make a supine submission in concinnity with the submission already made before the trial Court that the plaintiff is not making claim over the items of suit properties referred to supra, which were alienated as per Ex.B6 to Ex.B8, wherefore I could see no infirmity on the part of the trial Court in dismissing the claim for partition relating to those alienated items.
26. The learned Senior counsel for the defendants would put forth an argument to the effect that after Ex.A1- partition deed, the parties to it alienated lot of items and in fact, Nagoo Shah and his heirs, as per Ex.B6 to Ex.B8 alienated most of the items and in such a case if partition is ordered relating to remaining items, it would put the defendants in a disadvantageous position.
27. The learned Senior counsel for the plaintiff would put forth his specious argument, without fraught with sophistry or casuistry or legerdemain that equity could be worked out during final decree proceedings and accordingly, the alienated items by the respective sharers could be adjusted to the extent possible towards the share of those alienors and accordingly, the shares could be divided.
28. I could see considerable force in the submission made by the learned Senior counsel for the plaintiff. The learned Senior counsel for the plaintiff would contend that there cannot be any partial partition and that too without adding the alienees and also the legal heirs of Doma Shah. The question of adding alieness does not arise in this case, as equity could be worked out in favour of alienees to the extent possible and there could be no legal impediment for ordering partition.
29. To the risk of repetition without being tautologous I would reiterate that non-impleadment of Doma's heirs, as already discussed supra, would not be fatal to the case of the plaintiff. During final decree proceedings, the shares shall be allotted as per the preliminary decree passed by the trial Court from out of the available properties, excluding the alienated properties as held by the trial Court, however while allotting shares to L.Rs of D1 and L.Rs of Nagoo Shah i.e. D2 to D5 parity be achieved by adjusting proportionately the value of the properties alienated by them in respect of their shares already allotted to them as per Ex.A1.
30. Now the problem is not with regard to the quality of the properties allotted to Doma Shah on the one side and Narayan Shan and Nagoo Shah on the other side. But the plaintiff wants her mother's 1/3rd share being located in the properties allotted to Narayan Shah and Nagoo Shah, which were allotted in recognition of the half share of their father Vengoo Basha, as it is obvious and axiomatic that Lakshmi Bai was entitled to 1/3rd share in Vengoba Shah's share only and she is not having any share in the said Doma Shah's share.
31. It is therefore crystal clear that the defendants cannot be allowed to contend that the plaintiff should not have left the items of properties allotted to Doma Shah without they being added as suit properties in the suit in the event of her claiming 1/3rd share in the 1/3rd share of Lakshmi Bai. The matter would be entirely different if the law was to the effect that Lakshmi Bai should be considered as one of the sharers along with Vengoba Shah and Doma Shah on per-capita basis in the large joint family property belonging to Vengoba Shah and Doma Shah, but the law as cited supra was to the effect that Lakshmi Bai could only claim share along with her sons in the half share of Vengoba Shah. As such, no more further elaboration in this regard is required to highlight that the heirs of Doma Shah are not at all necessary parties to the suit filed by the plaintiff herein; a fortiori the original suit is not bad for non-joinder of necessary parties.
32. The significance of Section 14(1) of the Hindu Succession Act is required to be considered in this factual matrix. Section 14(1) of the Act is extracted here under for ready reference.
"14. Property of a female Hindu to be her absolute property-(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation-In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
33. Glaringly and palpably clear as it is, from the cited provision that the property possessed by female as her limited estate as per Section 3(3) of the Hindu Women's Right to Property Act 1937 got enlarged as absolute one. The question might arise as to whether the plaintiff was in possession of any portion of the suit property as on the date of commencement of the Hindu Succession Act.
34. The learned Senior counsel for the plaintiff would appropriately and appositely submit that it is the admitted case of the defendants that Lakshmi Bai, till her death was residing in the suit house and in such a case, the application of Section 14(1) relating to Lakshmi Bai's limited right over the said property, as per the Hindu Women's Right to Property Act, having got enlarged as an absolute one as per Section 14(1) of the Hindu Succession Act, is beyond doubt.
35. While cross-examining P.W.1 the defendants suggested as though Lakshmi Bai's possession was obstructed and prevented by Lakshmi Bai's sons and in such a case it is implied that Lakshmi Bai was in joint possession of the suit propert. An excerpt from the deposition of P.W.1 would run thus:-
"vd;Dila jhahh; jhth brhj;ij mDgtpj;J te;jjw;F mth; bgahpy; gl;lh ,Ug;gJ vdf;F bjhpahJ/ vd;Dila jhahh; thp. tha;jh fl;ltpy;iy/ vd;Dila jhahh; capUld; ,Uf;Fk;nghJ mtiu brhj;ij mDgtpf;ff;TlhJ vd;W vd;Dila mz;zd;khh;fs; jLj;J tpl;lhh;fs; vd;why; mJ jtW/@ The above extract would speak volumes that Lakshmi Bai was in possession of the suit property and her limited estate got enlarged.
36. D.W.1(D1)-Narayan Shah himself in his Chief-examination would depose thus:-
@1985 y; vdf;Fk; vd;Dila rnfhjuDf;Fk;. Nlhkhrhtpw;Fk; ghfg;gphptid ele;jJ/ vd;Dila jhahh; brhj;J ntz;lhk; vd;Wk; ghfhr;rhug;go buhf;fkhf U:/10000-= ia bfhLf;FkhWk; ntz;odhh;/ 24/8/86 y; gj;jpuk; vGJk; kzp vd;gth; Kd;dpiyapy; U:/10000-= ia jhahhplk; bfhLj;njhk;/ vd;Dila tPl;oy; jhahh; mg;nghJ ,Ue;jhh;/ mjw;fhd urPJ gp/th/rh/M/1/ gp/th/rh/M/1 kzp vd;gtuhy; vGjg;gl;J/ gzk; bfhLj;jnghJ rz;Kfk;. Muzh Mfpnahh;fs; mUfpy; ,Ue;jhh;fs;/@ It is therefore crystal clear that Narayan Shah-D1 himself candidly and categorically admitted that even in the year 1985, long after the commencement of Hindu Succession Act, 1956, Lakshmi Bai had been residing in the suit property. Hence, the application of Section 14(1) of the Hindu Succession Act in respect of the right of Lakshmi Bai is beyond doubt; a fortiori, the limited estate of Lakshmi Bai got enlarged as an absolute one by virtue of Section 14(1) of the Hindu Succession Act and that she was entitled to 1/3rd share in the share of Vengoba Shah and her sons Nagoo Shah and Narayan Shah were entitled to 1/3rd share each.
37. The whole kit and caboodle of facts and figures including the evidence placed on both sides would unambiguously and incontrovertibly be perspicuous of the fact that Lakshmi Bai had 1/3rd share in the totality of the properties, allotted in the partition deed-Ex.A1 to the shares of Nagoo Shah and Narayan Shah and as a sequelae the plaintiff being the daughter of Lakshmi Bai is entitled to 1/3rd share in the 1/3rd share of Lakshmi Bai.
38. Point Nos. (iii) and (iv) Presumably understanding and realising the legal position and the right of the plaintiff over the suit properties to claim her share, the defendants took up a defence to deprive the plaintiff of her claim, by placing reliance on Ex.B1 and contended that whatever right Lakshmi Bai had in the suit properties, she relinquished the same, after accepting a sum of Rs.5000/- from Alli Bai wife of Doma Shah and Rs.2500/- each from Narayan Shah and Nagoo Shah. The plaintiff would remonstrate and refute Ex.B1 and contend that Lakshmi Bai did not execute Ex.B1. It is therefore just and necessary to scrutinise in depth Ex.B1.
39. Ex.B1 could be extracted here under for ready reference and for better appreciation.
"buhf;f urPJ bjhif U:/10.000-= ehs;24/8/1985 fh";rPg[uk; nrf;Fg;ngl;il eLj;bjU 96 vz; tPl;oy; ,Uf;Fk; o/tp/ bt';nfhghrh ghhpahs; o/tp/ tc&;kpgha; Mfpa ehd; c& bjU 100 vd; tPL o/tp/ bt';Frh Fkhuh; jpU/o/tp/nlhkhrh kidtp my;ypghaplk; U:/5000-= IahapuKk; c& bjU 96 vd; tPL o/tp/bt';nfhghrh (vd; kfd;) o/tp/ ehTrhtplk; U/2500-=(,uz;lhapuj;J Ie;EhWk;) c& bjU 97 tPL o/tp/ bt';nfhghrh (vd;) kfd; o.tp/ehuhazrhtplk; U:/2500-=(,uz;lhapuj;J Ie;EhWk;) Mf bkhj;jk; U:/10.000-= (gj;jhapuk;) FLk;g ghf Vw;ghl;oy; jpUkz fhy bryt[fSf;F ehd; rk;kjpj;J buhf;fkha; bgw;wf;bfhz;nld;/ ghf;fp ntnw vJt[k; ,y;iy/ ,g;gzk; gw;Wf;F ,Jnt urPJ/@(emphasis supplied) the underlined portion would cannote and denote that Ex.B1 emerged relating to some settlement regarding the marriage expenses. Nowhere it is found embodied in Ex.B1 that Lakshmi Bai relinquished her 1/3rd share in the immovable properties. The Hindu Women's Right to Property Act, 1937 and the Hindu Succession Act in general and Section 14(1) of the Act zealously and jealously safeguard the right of women and virtually judicial conscienceless is shocked while coming across the plea of the defendants that such a valuable right of women could be deprived of by a mere writing in a piece of paper like Ex.B1. The defendants would try to usher in the theory of 'family arrangement', which requires no registration as per the trite proposition of law, so as to get over the hurdle that Ex.B1 is an un-stamped and unregistered document, which according to them is a document in relinquishment of Lakshmi Bai's right over the immovable properties.
40. To the risk of repetition without being tautalogous, Ex.B1 is perspicuous of the fact that it refers to only some settlement of marriage expenses. Had the parties to it intended that the said document should be evidence of relinquishment of right over immovable properties and that too by way of confirming the partition, which emerged as per Ex.A1, then the wordings in Ex.B1, by no stretch of imagination, would be like the ones as they are found displayed therein. Ex.B1 is fraught with recondite or gibberish or gobble-de-gook versions, creating only a spidery picture as to the purpose for which Ex.B1 was written.
41. The learned Senior counsel for the defendants also would place reliance on Ex.B3-the purported letter issued by one N.Subramanian-the scribe of Ex.A1-the partition deed and the body of the letter is extracted here under for ready reference "According to the family partition settlement Dr.Lakshmibai came twice and amicably accepted the amount of Rs.10,000/- ten thousand only set apart for her and on payment delivered the receipt the original is sent herewith to Allibai and the xerox copies sent to the other two parties. Our service ends therewith.
(emphasis supplied)
42. A mere reading of the letter would enable the judicial mind to see that it is a document brought about as a statement from Subramanian so as to buttress the plea of the defendants. It is the rudimentary principle of evidence that such sort of statement in the purported letter can never be taken to be an authentic one for being considered as evidence. At the first instance, Subramanian should have been examined as a witness before the Court so as to enable the plaintiff to cross-examine him concerning Ex.B3, which is worded in an articulate and embellished manner to project as though the plaintiff's mother visited twice the document writer's office and amicably accepted the amount of Rs.10,000/- set apart for her and on such payment (by whom it was paid is not known) she issued the receipt and that the original was sent to Alli Bai and the xerox copies of it were sent to the other parties. As per Ex.B3-the situs of payment was at the office of the document writer. Whereas, D.W.1 Narayanan Shah would depose that the said sum of Rs.10,000/- was paid in the presence of the document writer Mani, Shanmugam and Aruna and that at that time her mother was in his house. But none of them were examined. Had really such payment of Rs.10,000/- took place, as narrated by D.W.1, I am at a loss to understand as to how there would have been any necessity for the document writer to send the original receipt through covering letter Ex.B3 to Narayan Shah-D.W.1.
43. My above discussion wherefore would at once expose that Ex.B3 is concocted document which is not even worth the paper on which it is written. In Ex.B1 at the top, the date is mentioned as 24.8.1985, but even as per the defendants' case on that date such payment was not made to Lakshmi Bai.
44. The deep scrutiny of Ex.B1 would evince that it is found typed as though from Doma Shah a sum of Rs.5,000/- was received by Lakshmi Bai out of Rs.10,000/-, but subsequently, it was corrected in ink as though the said sum of Rs.5,000/- was received from Alli Bai, the wife of Doma Shah. Precisely Ex.B1 is not a reliable piece of evidence at all.
45. Even though in no uncertain terms the plaintiff clearly and categorically denied the alleged factum of Lakshmi Bai having executed Ex.B1, nonetheless the defendants have not chosen to prove Ex.B1 by examining at least any one of the attesting witnesses purported to have signed Ex.B1. I would like to reiterate that in matters of this nature, the Court should be extraordinarily cautious to see that the valuable rights of women as found safe-guarded in the statutes are not eroded by flimsy and make believe documents like Ex.B1. If documents like Ex.B1 are taken as sufficient evidence of a lady having relinquished her right, then the object of the beneficial legislations in safe-guarding women's property rights would be set at naught.
46. It is a common or garden principle in civil law that the preponderance of probabilities would govern the adjudication and the witnesses might lie but the circumstances would not lie. Ex.A1-the registered partition deed emerged on 2.11.1985. Indubitably and incontrovertibly Lakshmi Bai was alive at that time and the parties to the partition deed have not chosen to add Lakshmi Bai as one of the parties. At this juncture, the learned Senior Counsel for the plaintiff would convincingly put forth his point that the very emergence of Ex.B1 itself is not free from doubt and according to the plaintiff it is nothing but a concocted document. By way of lending support to the plaintiff's plea the defendants themselves supplied enough materials, so to say they never referred to the existence of Ex.B1 at the earliest point of time while sending replies to the plaintiff's lawyer's notice.
47. Ex.A5 dated 18.2.1987 is the reply notice sent by Nagoo Shah and Ex.A6 dated 16.3.1987 is the reply notice sent by D1 in response to Ex.A4 dated 28.1.1987-the plaintiff's lawyer's notice. In both Ex.A5 and Ex.A6, there is no whisper at all about Ex.B1. In this factual matrix the learned Senior counsel for the plaintiff has argued that had really Ex.B1 was in existence as on the date of emergence of Ex.A5 and Ex.A6, certainly it would have found a place in those replies, but those Ex.A5 and Ex.A6 are conspicuous of the absence of any reference to Ex.B1 and thereby lending support to the plaintiff's plea that Ex.B1 is not a genuine document at all.
48. However, in Ex.A9 dated 11.7.1988-the reply notice sent by D2 to D5 in response to Ex.A8-the plaintiff's lawyer's notice dated 24.6.1988, there is a reference to Ex.B1. It is therefore clear that the plaintiff's challenge to Ex.B1 cannot be lightly brushed aside or phoo-phooed or belittled or guffawed. Absolutely there is no reason much less plausible or clinching reason for not adding Lakshmi Bai as one of the parties in Ex.A1-the partition Deed. The alleged oral family arrangement as found set out in the written statement of the defendants is vague as vagueness could be. Any amount of evidence without the backing of the pleadings should be eschewed and there could be no quarrel over such a run of the mill propositions. There is no indication that such oral arrangement emerged either before Ex.A1 or after Ex.A1. If it is before Ex.A1 the question would arise as to why in Ex.A1 itself Lakshmi Bai has not been made to commit herself in black and white. If it is after Ex.A1 it is not known as to when and on which date such oral arrangement took place and in whose presence. There is no clinching evidence in that regard. The law is clear on the point that family arrangement could be oral but if it is to be recorded it should be by way of memorandum so as to dispel hazy notion about such oral arrangement and it should not be in evidence of it. If it is in evidence of relinquishment of any immovable property it would require registration within the meaning of Section 17 of the Registration Act.
49. In the written statement of D1 itself at paragraph 4 it is found recorded thus:-
"This defendant submits that ever during her life time the above and said Lakshmi Bai Ammal has given up her interest in the joint family then existed through a family arrangements after receiving a cash consideration of Rs.10,000/- from on Alli Bai, W/o.D.V.Domash, D.V.Nagusah, the husband of the 2nd defendant and this defendant, on 24.8.1986 and this has been evidenced by the document executed by his mother Lakshmi Bai on 24.8.86."
wherefore it is clear that the defendants relied on Ex.B1 as the evidence of the oral relinquishment. If that be so, then it ought to have been stamped and registered in accordance with law, but it was not done so.
50. Adding fuel to the fire D.W.1(D1) himself in his deposition, a part of it which has already been extracted supra would candidly and categorically demonstrate that even at the time of emergence of Ex.A1-partition deed, his mother-Lakshmi Bai expressed her desire that she did not want any share in the suit properties, but she demanded only a sum of Rs.10,000/-. If that be so, it is not known as to what prevented the parties to Ex.A1 to get the signature of Lakshmi Bai also in Ex.A1 itself. As such, the plea of the defendants are fraught with inconsistencies.
51. On the defendants side reliance was placed on Ex.B2 dated 24.8.96 which is purported to be a receipt issued by the plaintiff in favour of her mother Lakshmi Bai as though the former received from the latter a sum of Rs.6,000/-. However the plaintiff would remonstrate and deny the said receipt as the one signed by her. There is no purpose found detailed and delineated in Ex.B2. Nonetheless on the defendants' side it is submitted that Lakshmi Bai, after receiving the said sum of Rs.10,000/- as contemplated in Ex.B1, in turn, gave Rs.6000/- in favour of the plaintiff and got the receipt.
52. The learned Senior counsel for the defendants, by inviting the attention of this Court to Ex.A12-the reply Advocate's notice given by the plaintiff, would develop his argument that in the said reply, the plaintiff candidly and categorically admitted the receipt of Rs.6,000/-. Hence, at this juncture it is just and necessary to extract here under the relevant portion of Ex.A12.
"......... It is only her mother late Mrs.Lakshmi Bai who gave a sum of Rs.6,000/- as gift to my client, as she is her only daughter and she wanted a receipt evidently for account purposes and that is why she has given that receipt."
However, P.W.1's deposition as recorded by the Court would refer to the following:-
"jhahUf;F brl;oy;bkzl;lhf U:/10.000/- bfhLj;jhh; vd;why; mJ jtW/ mjpy; U:/6000-= ia vd;Dila jhahh; vdf;F bfhLj;jhh; vd;why; mJ jtW/ vd;Dila jhahh; ,dkhf U:/6000-= bfhLj;jhh;/ mjw;F ehd; bfhLj;j urPJ gp/th/rh/M (rhl;rp kPz;Lk; nkw;go urPJ vd;dhy; bfhLf;fg;gl;lJ my;yJ vd;W Twpdhh;/@
53. It is therefore clear that while deposing before the Court as well as in her plaint averments the plaintiff denied the factum of having received the sum of Rs.6,000/-. No doubt the Court observed that at one instance the plaintiff stated as extracted above that her mother gave Rs.6,000/- as a free gift and in response to it she issued Ex.B2. But she corrected herself immediately and stated that Ex.B2 was not the receipt issued by her. The fact also remains that Ex.A12-Advocate's notice was not signed by her. But plaint averments were signed by her and while deposing before the Court, the Court recorded as aforesaid to the effect that she in one breath acknowledged the receipt of Rs.6,000/- as free gift from her mother, but suddenly she denied Ex.B2 as the one issued by her. Put simply the evidence relating to Ex.B2 is cloudy. Even assuming that Lakshmi Bai paid a sum of Rs.6,000/- to the plaintiff it would not in any way, as already discussed supra by me, would deprive the valuable right of a lady of her right over the immovable property. In fact, my above findings would exemplify that when Lakshmi Bai was alive, the plaintiff had no right over the suit property. Ex.B1 is purported to have emerged during the life time of Lakshmi bai and Ex.B2 itself does not recite anything about any property right etc. It only refers to the factum of the plaintiff having received from her mother a sum of Rs.6,000/-. However, the defendants try to find support from Ex.B2 as though as per Ex.B1 Lakshmi Bai received the said sum of Rs.10,000/- in full and final settlement of her right over the immovable property and in turn she parted with a sum of Rs.6,000/- towards her daughter.
54. As has been held supra Ex.B1 has not been proved in the way known to law and it can never be taken as the one in relinquishment of Lakshmi Bai's interest in the suit property.
55. Ex.B1 and B2 are dubious documents and all the comments and remarks offered by this Court as against Ex.B1 is also be applicable mutatis mutandis as against Ex.B2; much of a muchness could be seen between the two documents. Accordingly, points (iii) and (iv) are decided to the effect that Lakshmi Bai did not relinquish her right over the suit properties and Ex.B1 and B2 in no way prove that Lakshmi Bai relinquished her right over it.
56. Point No.v: The learned Senior counsel for the plaintiff would try to put across his point that in view of the Hindu Succession(amendment) Act 2005, which is in vogue, the plaintiff is entitled to a share in the suit property as a co-parcener. The said amendment Act does not in any way indicate that it is only prospective and not retrospective; so long as there is no complete partition, the question of not applying the said amendment Act would not arise; in this case Ex.A1 is virtually non est, as without adding Lakshmi Bai, such a partition emerged, and in such a case Ex.A1 partition deed cannot be taken as partition within the meaning of the said amendment Act.
57. Whereas, the learned Senior counsel for the defendants, by way of contradicting and controverting, torpedoing and demolishing such an argument emanated from the plaintiff's side, would convincingly argue that the Hindu Succession (Amendment) Act 2005 has got no retrospective effect and if there is any death occurred, subsequent to the commence of the said amendment Act, then the question of invoking the provisions of the Hindu Succession Act would arise.
58. Both sides advanced argument placing reliance on the judgement of the Honourable Apex Court reported in 2007(I) MLJ 797(SC)- SHEELA DEVI AND OTHERS VS. LAL CHAND AND ANOTHER, an excerpt from it would run thus:
"19. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, thek provisions of Amendment Act, 2005 would have no application. Sub-Section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso appended to sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal viz., Lal Chand, was, thus, a coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the plaintiffs-respondents to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the second son Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956.
59. The learned Senior counsel for the defendants would also cite the decision of the Honourable Apex Court reported in (2008)3 Supreme Court Cases 87-BHANWAR SINGH VS. PURAN AND OTHERS and certain excerpts from it would run thus:-
"20. Moreover, recently in Sheela Devi v. Lal Chand a Bench of this Court of which one of us was a member, held:
"21. The act indisputably would prevail over the old Hindu Law. We may notice that Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted the Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of the Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendents. But, the proviso appended to sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal viz.Lal Chand, was, thus, a coparcener. Section 6 is an exception to the general rules. It was, therefore, obligatory on the part of the respondent-plaintiffs to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the second son, Sohan Lal is concerned, no evidence has been brought on record to show that he was born prior to coming into force of the Hindu Succession Act, 1956."
21. In that case, the properties in question were joint family properties. They were coparceners. After the death of Tulsi Ram, Babu Ram, whose heirs were the appellants therein, inherited 1/5th share in the property. The relationship between the parties was not in dispute. Tulsi Ram was the owner of the property. He died in the year 1889 leaving behind five sons, namely Waliwati, Babu Ram, Charanui Lal, Hukam Chand and Uggar Sain. On the death of Uggar Sain 1/20th share of Tulsi Ram was also devolved on him. The High Court arrived at a finding of fact that the properties were coparcenary and ancestral property. It was held that the law which was applicable in the case would be the one which was prevailing before coming into force of the Hindu Succession Act and the parties would be governed thereby under the provisions thereof. It was in the aforementioned situation and having regard to the fact that the succession of the property was governed in terms of Section 6 of the Act, it was held:(Sheela Devi, SCC pp.585-86, para 12) "12. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as a separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten (See C.Krishna Prasad v. CIT). But once a son is born, it becomes a coparcenary property and he would acquire an interest therein."
22. In that case, as noticed hereinbefore, Babu Ram had no son in the year 1922 but a son, Lal Chand, was born to him in the year 1938 and another son, Sohand Lal, was born in 1956. It was in the aforementioned situation, this Court held that a joint family revived on the birth of Lal Chand. This Court, in that view of the matter also opined that as there was no proof as to whether the second son was born after the coming into force of the Hindu Succession Act, it was held that his heirs were not entitled to take the benefit of the coparcenary interest."
60. It is therefore clear that the Honourable Apex Court is of the view that the Hindu Succession (Amendment) Act 2005 is having only prospective effect and not retrospective effect and if at all any death occurs after the commencement of the said Amendment Act, the question of applying the said Amendment Act would arise and it is evident from the finding of the Honourable Apex Court in Sheela Devi's case that the succession having opened in 1989, consequent upon the death of a male member in that case, the Amendment Act 2005 would have no retrospective application.
61. Following the judgement of the Honourable Apex Court, this Court also in the following decisions held that the Hindu Succession (Amendment) Act 2005 is only prospective and not retrospective.
(i) (2008) 1 MLJ 560 ANGAMMAL AND ANOTHER VS. C.SELLAMUTHU AND ANOTHER;
(ii) 2008 (4) CTC 374 BAGIRATHI AND 5 OTHERS VS. S.MANIVANAN AND ANOTHER.
62. As of now, the Honourable Apex Court's judgements and the judgements of this Court, based on the Apex Court's judgement, are governing the field and I cannot independently discuss any further relating to the question of prospective or retrospective effect of the said Amendment Act in this judgement. Hence, I hold that the Amendment Act is only prospective and not retrospective and here the suit for partition itself is pending ever since 1989 and the proceedings were also pending as on the date of commencement of the Hindu Succession (Amendment) Act 2005 and therefore it is quite obvious that the said Amendment Act is not applicable to the facts and circumstances of this case.
63. This Court suo motto called upon both sides to address arguments relating to the application of the Tamil Nadu Act No.1/90, which came into vogue with effect from 25.3.1989 in having inserted a new Chapter II-A in the Hindu Succession Act 1956.
64. Both sides in unison would opine that the Central Hindu Succession (Amendment) Act 2005 is more beneficial in nature in protecting the women's interest and accordingly that would prevail over the State amendment in inserting Chapter II-A long prior to the commencement of the Central Act. However, the learned Senior counsel Mr.T.V.Ramanujam for the D1 would add that such of the provisions under Chapter II-A of the Tamil Nadu Act 1/90, which are not militating as against the Central Act, shall also side by side prevail.
65. I am of the considered opinion that this Court at present need not decide on that broad issue as to whether the Hindu Succession (Amendment) Act 2005 had the effect of repealing in toto Chapter II-A as inserted by Tamil Nadu Act No.1/90, as any decision that would be rendered by this Court would be of obiter dictum and would not have a bearing on the adjudication in this case. However, my finding that the Hindu Succession (Amendment) Act is not retrospective in nature but only prospective would render unnecessary any further adjudication relating to the fact as to whether the Central Act would prevail over the State Act or not. It is therefore clear that the plaintiff cannot claim share in the suit properties as a co-parcener but only as a Class-I heir of her mother deceased Lakshmi Bai. Accordingly, this point is decided.
66. Point No.vi:The learned counsel for the plaintiff in support of the memorandum of grounds of appeal filed by the plaintiff in A.S.No.886 of 1993, would develop his argument that the trial Court was not justified in dismissing the prayer of the plaintiff relating to the 'B' schedule of the plaint, as the defendants admitted that the 'B' scheduled properties, namely, the silver articles and gold jewels were in existence; however, they would, without any proof, baselessly contend that those items were partitioned and certain items were allegedly given to the plaintiff. In order to buttress and fortify the contention of the plaintiff the learned counsel for the plaintiff would invite the attention of this Court to the deposition of D.W.1 and highlight that D.W.1 himself during cross-examination admitted the existence of 'B' schedule items as the ones which belonged to Lakshmi Bai. An excerpt from D.W.1's deposition is extracted here under for ready reference.
"/ / / / / / /vd;Dila jhahUf;F eiffs; cz;L/ rhFk;tiuapy; me;j eiffis mth; mdpe;jpUe;jhh;/ gp/ ml;ltiz brhj;Jf; fz;Ls;s eiffs; vd; jhahUf;F brhe;jk;/ v';fs; $hjp tHf;fg;go gpnujj;ij vhpg;gjw;F Kd;g[ eiffis vLg;nghk/ ,wg;gjw;F Kjy; ehs; vd;Dila jhahhplk; eiffs; fhzg;gltpy;iy/ ehd; tprhhpj;jnghJ thjpf;F bfhLj;Jtpl;ljhf vd;Dila jhahh; Twpdhh;/ ehd; thjpia tprhhpj;j nghJ thjp xg;g[ bfhz;lhh;/ vd;Dila jhahh; eif bfhLj;jjw;fhs fhuzj;ij ehd; nfl;ftpy;iy/ thjpia nfl;lnghJ mJ jdJ tpUg;gk; vd;W Twptpl;lhh;/ eif rk;ke;jg;gl;l tptu';fis th/rh/M/5 kw;Wk; 6 y; Twpa[s;nsd;/ mira[k; brhj;Jf;fis Vw;bfdnt ghfk; gphpj;Jf; bfhz;ljhf gjpy; mwptpg;gpy; Twpa[s;nsd;/ thjp eiffis vLj;Jg; nghdjhf th/rh/M/6 y; Twtpy;iy/@
67. It is therefore crystal clear that D.W.1 has not come forward with the truth that 'B' schedule items did belong to Lakshmi Bai but in one breath D.W.1 would state that those items were not in his possession and non-est; in another breath he would contend that those items were given away by Lakshmi Bai in favour of the plaintiff; yet in another tone he would contend that those items were partitioned and share was allotted to the plaintiff. As such, commenting upon the three prevaricative stands, the learned counsel for the plaintiff would appositely argue that adverse inference has to be drawn against the defendants relating to the 'B' scheduled property and accordingly, partition should be ordered even in respect of the 'B' schedule items of properties. The contention of the defendants as though the plaintiff, prior to the death of Lakshmi Bai visited her and at that time she obtained jewels from her mother is too big appeal to be swallowed and it is not fortified by any evidence. It is also obvious that as already observed supra, the evidence on the defendants' side relating to the alleged partition of the movable or even the handing over of the jewels by the mother are not in any way convincing, but the versions are militating as against one another.
68. Whereas, the learned Senior counsel for the defendants would put forth a clinching argument so as to torpedo the claim of the plaintiff over the 'B' Scheduled property by pointing out that even as per the version of the plaintiff herself it was Doma Shah, who arranged for the marriage of the plaintiff by giving her 25 sovereigns of gold jewels and 7 items of silver articles and in such a case if the legal heirs of Doma Shah are also parties to the suit, then they would be able to seek for allotment of more share in proportionate to the Doma Shah's share in those jewels and silver articles given to the plaintiff.
69. I could see considerable force in his submission. The plaintiff cannot approbate and reprobate. Had the father of the plaintiff solemnised her marriage and gave her as per the custom some jewels for solemnising her marriage then in such circumstances, the Court would be reluctant to adjust those jewels towards her share in the partition. But on the other hand, here after the death of plaintiff's father it was the plaintiff's uncle Doma Shah, who arranged for the marriage admittedly and at that time Doma Shah and the legal heirs of plaintiff's father were not divided in status and there had been no partition at that time. Even then, the plaintiff, while praying for partition strictly in accordance with her right in the immovable properties, she, by way of having got benefited movable property vice, cannot be allowed to contend that she should be permitted to lay claim over the movable properties set out in the Schedule, over and above what she already received at the time of her marriage. As such, parity could be achieved by rejecting her claim for movable properties in the peculiar facts and circumstances of this case.
70. While dismissing the claim of the plaintiff relating to the movable properties, I make it clear that I do not incline to lay down as a general proposition that in all cases whenever a lady seeks for partition, the jewels which were given to her, as per customary practice in commensurate with the status of the family, should necessarily be adjusted towards her share in the partition.
71. Here it is a singularly a singular case in which the plaintiff consciously has not chosen to implead Doma Shah's legal heirs and in such a case in view of the sound argument submitted by the learned Senior counsel for the defendants, the plaintiff cannot lay claim over the movable properties and that too, the movable properties which are held to be only comparatively not huge. The evidence on both sides is murky and spidery relating to the situation prevailed at that time of plaintiff's marriage; it might even be so, that part of those jewels and silver items might have been given to plaintiff in lieu of her share in the movables. Accordingly there is no merit in the appeal No.886 of 1993 filed by the plaintiff as against the dismissal of the claim of the plaintiff over the movable properties and it is also a fact to be noted that comparing the sizeable gold jewels and silver articles, which the plaintiff herself got at the time of her marriage with that of the 'B' scheduled properties, the latter cannot be stated to be huge property, which the defendants had appropriated. Accordingly, I could see no infirmity in the ultimate result given by the trial Court in dismissing the prayer of the plaintiff over the 'B' schedule movable items. Accordingly, the appeal No.886 of 1993 is liable to be dismissed.
72. In the result, the plaintiff's appeal (A.S.No.886 of 1993) is dismissed and the other two appeals, namely, A.S.Nos.786 of 1993 and 375 of 1995 are partly allowed by confirming the entire judgement and preliminary decree of the trial Court, however with slight modification as under:-
During final decree proceedings, the shares shall be allotted as per the preliminary decree passed by the trial Court from out of the available properties, excluding the alienated properties as held by the trial Court, however while allotting shares to L.Rs of D1 and L.Rs of Nagoo Shah i.e. D2 to D5 parity be achieved by adjusting proportionately the value of the properties alienated by them in respect of their shares already allotted to them as per Ex.A1. It is hereby made clear that if at all there is any objection from the legal heirs of Doma Shah relating to the items of suit properties covered in the 'E' Schedule of Ex.A1 either at the final decree stage or at the E.P. stage, the lower Court is at liberty to decide on those items only to the risk of the plaintiff herein and accordingly pass suitable orders and such adjudication in those items shall not affect rest of the adjudication relating to other items.
No costs.
Msk 26.9.2008 Index:Yes/No Internet:Yes/No To The Subordinate Judge, Chidambaram. G.RAJASURIA,J msk Pre-delivery judgement in A.S.NOs.786 and 886 Of 1993 and 375 of 1995 26.9.2008