Madras High Court
P.M.Panneerselvam vs P.Sigappiyammal on 12 November, 2021
Author: A.A.Nakkiran
Bench: A.A.Nakkiran
SA(MD).No.367 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 09.07.2021
PRONOUNCED ON : 12.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
SA(MD).No.367 of 2015
MP(MD)No.2 of 2015
(Through Video Conferencing)
P.M.Panneerselvam Appellant
Vs
1. P.Sigappiyammal
2. P.Palaniammal
3. P.Arumugam (died)
4. A.Sivanesaprabhu
5. A.Alagar
6. A.Ramesh Prabhu
7. A.Jeevarajan
8. C.Maruthayee
9. Rani Respondents
Prayer:- This Second Appeal has been filed, under Section 100 of CPC, against
the judgement and decree, dated, 23.12.2014, passed in AS.No.5 of 2014, by
the Principal District Munsif Court, Dindigul, reversing the judgement and
decree, dated, 05.11.2013, passed in OS.No.282 of 2009, by the Additional
Sub Court, Dindigul.
For Appellant : Mr.H.Lakshmi Shankar
For Respondent : Mr.A.Hariharan-RR1&2
Mr.M.Sivakumar-RR4 to 7 and R9
No Appearance-R8
JUDGEMENT
1. This Second Appeal has been filed, by the 6th Defendant, against the 1/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015 judgement and decree, dated, 23.12.2014, passed in AS.No.5 of 2014, by the Principal District Munsif Court, Dindigul, reversing the judgement and decree, dated, 05.11.2013, passed in OS.No.282 of 2009, by the Additional Sub Court, Dindigul.
2. The case of the Plaintiffs is that the A-Schedule properties ancestrally belonged to one Palani, who died in 1969, leaving behind him his daughters, the Plaintiffs and sons, the 1st Defendant and one Palani. The B-Schedule properties exclusively belonged to their mother Anandhi by way of inheritance. After the demise of their father, under the supervision of Anandhi, their daughters and sons have been in joint possession and enjoyment of the both the properties. Anandhi died intestate in 1994. Palani died in 1998 without marriage. Thereafter, the Plaintiffs and the 1st Defendant have been in possession and enjoyment of the said properties. As per the Hindu Succession Amendment Act, 2005, the Plaintiffs and the 1st Defendant are entitled to 1/3rd share each in both the properties. The Defendants 2 to 5 are the sons of the 1st Defendant. Since 1st Defendant was not taking care of the suit properties, the Plaintiff and the wife of the 1st Defendant and the Defendants 2 to 5 have been managing the suit properties. In spite of several demands for partition made by the Plaintiffs, the Defendants 1 to 5 have been evading. The 1st Defendant has no right to alienate the suit properties in any manner, since the same are the joint family and ancestral properties. The Plaintiffs came to know that the 1st Defendant had sold some of the properties in favour of the Defendants 6 and 7. In such 2/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015 circumstances, the suit has been filed, seeking partition of 2/3rd share in the suit properties and permanent injunction, restraining the Defendants from alienating the suit properties.
3. The 1st Defendant did not file any written statement before the Trial Court and remained exparte.
4. The case of the 2nd Defendant, as set out in his written statement, is that the relationship between the Plaintiffs and the Defendants 1 to 5 is admitted. The facts that the suit properties originally belonged to their father ancestrally and after his demise, the suit properties have been in joint possession and enjoyment of the Plaintiffs and the 1st Defendant and that the Plaintiffs have 2/3rd share in the suit properties are not denied. The alienations made in favour of the Defendants 6 and 7 by the 1st Defendant will not bind the Defendants 2 to 5. The 1st Defendant is entitled to only 1/15th share and the Defendants 2 to 5 are entitled to 4/15th share in the suit properties. There is no objection in allotting 2/3rd share in the suit properties to the Plaintiffs.
5. The case of the Defendants 6 and 7, as set out in their written statement, is that the relationship between the Plaintiffs and the Defendants 1 to 5 is admitted. In the A-Schedule properties, the Plaintiffs have no right whatsoever and they were never in possession of the same. Only the 1st Defendant and his brother Palani have been in possession and enjoyment of the A-Schedule properties. Item (1) of the A-Schedule of properties, measuring an extent of 2 acres and 12 cents, bearing Patta No.1798, comprised in S.No.232/3, was sold to the 7th Defendant by the 1st Defendant, 3/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015 under the sale deed, dated 20.03.2001 and thereafter, the said property was sold to the 6th Defendant under the registered sale deed, dated 01.09.2009. Since then, the 6th Defendant has been in possession and enjoyment of the same. Similarly, the item (3) was also sold to the 7 th Defendant. The Plaintiffs were aware of the execution of the above sale deeds. Only in order to grab the said properties, the Plaintiffs, colluding with the 1st Defendant, had filed the suit. The Plaintiffs have no right whatsoever in the items (1) and (3) of the properties. In such circumstances, the suit is liable to be dismissed.
6. Before the Trial Court, on the side of the Plaintiffs, Ex.A1 to Ex.A10 were marked and PW.1 was examined. On the side of the Defendant, Ex.B1 to Ex.B2 were marked and DW.1 and DW.2 were examined. The Trial Court had dismissed the suit in respect of the item (1) of the A-Schedule properties and decreed the suit in respect of the other items of the A-Schedule properties and the entire B-Schedule properties. On the appeal filed by the Plaintiffs, as against the judgement and decree of the Trial Court, dismissing the suit in respect of the item (1) of the A-Schedule properties alone, the lower appellate court had allowed the appeal, by the impugned judgement. Aggrieved against the same, this Second Appeal has been filed by the 6th Defendant.
7. This Second Appeal was admitted, on the following substantial questions of law:-
(a) Is the lower appellate court right in holding that the Plaintiffs being daughters of late Palani had become coparceners entitled to a share equal to that of their brother Arumugam by virtue of the Hindu 4/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015 Succession Amendment Act, 2005 (Act 39 of 2005) even though their father (Palani) died in the year 1969 itself?
(b) Whether the lower appellate court is right in granting a preliminary decree for partition holding that they together were entitled to 2/3rd share in the suit properties?
(c) Whether the lower appellate court has committed an error in upholding the counter claim made by the Defendants 2 to 5 without considering the question of limitation?
8. This Court heard the submissions of the learned counsel on either side.
9. The learned counsel for the Appellant has submitted that when the Appellant is the bona fide purchaser of the item (1) of the A-Schedule properties under a valid registered sale deed and in the absence of valid evidence to show that the Plaintiffs were in joint possession and enjoyment of the said property, without considering the evidence of PW.1 and DW.1, the lower appellate court erred in allowing the appeal, that too when the suit was filed after 9 years of alienation. He would further submit that as per Section 6(1) of the Hindu Succession Amendment Act, 2005 (Act 39 of 2005), in the ancestral properties, the daughters will become coparceners and can claim right only from 09.09.2005 and that the Plaintiffs cannot claim partition of the ancestral property, which was alienated well before 20.12.2004, namely, in this case, the item (1) of the A-Schedule properties, which was alienated by the 1st Defendant, under the sale deed dated 20.03.2001, Ex.B1, in favour of the 7th Defendant, who in turn, alienated the same under Ex.B2, sale deed, dated 01.01.2009, in favour of the 6th Defendant and hence, the impugned judgement of the Trial Court, excluding the item (1) of the A-Schedule 5/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015 property from partition is perfectly valid, but the lower appellate court did not consider the said provisions of the said Amendment Act in a proper and perspective manner and erroneously allowed the appeal. In support of his contentions, the learned counsel would rely on the decisions reported in 2009 0 AIR Guj 184 (Virlkumar Natvarlal Patel Vs. Kapilaben Manilal Jivanbhai) and 2020 5 LW 300 (Vineeth Sharma Vs. Rakesh Sharma and others),
10.The learned counsel for the Respondents 1 and 2/ Plaintiffs would submit that there is no substantial question of law involved in this Second Appeal and that considering Ex.A2 and all other relevant evidence, when there is no denial by the Defendants 6 and 7 that the suit properties belonged to the family of the Plaintiffs, the lower appellate court came to the correct conclusion that the Plaintiffs are entitled to partition and permanent injunction in respect of the item (1) of the A-Schedule properties and that Ex.B1 sale deed is a sham and nominal document and that no document was produced to prove the possession of the 7th Defendant and for such reasons, the Second Appeal is liable to be dismissed.
11.The learned counsel for the Respondents 4 to 5 and 9, while advancing arguments in support of the impugned judgement, would support the case of the Plaintiffs.
12.This Court considered the rival submissions of the learned counsel on either side and also perused the materials available on record. For the sake of convenience, the parties herein after are referred to as they were arrayed in 6/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015 the suit.
13.There are three items of properties in the A-Schedule and three items of properties in the B-Schedule. Before the Trial Court, the 1st Defendant did not file any written statement and he remained exparte. The Trial Court had dismissed the suit, in respect of the item (1) of the A-Schedule properties and decreed the suit in respect of the other items of the A-Schedule properties and the entire B-Schedule properties.
14. On the appeal filed by the Plaintiffs as against the judgement and decree of the Trial Court, dismissing the suit in respect of the item (1) of the A- Schedule properties alone, the lower appellate court had allowed the appeal, by the impugned judgement. The 6th Defendant, claiming to be the bona fide purchaser of the item (1) of the A-Schedule properties under the registered sale deed, Ex.B2, is before this Court, by way of this Second Appeal. Thus, the dispute is with regard to the item (1) of the A-Schedule properties alone.
15.The relationship between the Plaintiffs and the Defendants 1 to 5 is not in dispute. Admittedly, the A-Schedule properties are the ancestral properties of one Palani, who died in 1969, the father of the Plaintiffs, the 1st Defendant and one Palani, who died without marriage. The wife of Palani, Anandi died in 1994. The Defendants 2 to 5 are the sons of the 1st Defendant.
16.Under Ex.B1, dated 20.03.2001, the 7th Defendant had purchased the item (1) of the A-Schedule properties from the 1st Defendant, who is the brother of the Plaintiffs. Under Ex.B2, registered sale deed, dated 01.09.2009, the 6th Defendant had purchased the item (1) of the A-Schedule properties from 7/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015 the 7th Defendant. Thus, the 6th Defendant claims to be the bona fide purchaser of the item (1) of the A-Schedule properties.
17.According to the Plaintiffs and the Defendants 2 to 5, the sale deeds, Ex.B1 and Ex.B2 will not bind them and in view of the amended provisions of the Hindu Succession Act, 2005, the Plaintiffs are entitled for partition in respect of the item (1) of the A-Schedule properties. On the other hand, it is the stand of the 6th Defendant that in view of the Proviso to Section 6(1) of the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005), the Plaintiffs, daughters become coparceners and are entitled to claim right in respect of the ancestral properties only from 09.09.2005.
18.Section 6 of the Hindu Succession Amendment Act, 2005 (Act 39 of 2005) provides for “Devolution of interest in coparcenary property”. It is relevant to quote the said Section, as under:-
Section 6:- Devolution of interest in coparcenary property. — (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 8/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015 the 20th day of December, 2004.
19.The prospective statute operates from the date of its enactment, conferring new rights. The retrospective statute operates backwards and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. Under the amended Section 6, since the right is given by birth, that is, an antecedent event, and the provisions operate concerning claiming rights on and from the date of the Amendment Act.
20.Admittedly, in this case, as stated above, the alienation of the item (1) of the A-Schedule properties was effected under Ex.B1 on 20.03.2001 in favour of the 7th Defendant and thereafter, under Ex.B2, registered sale deed, dated 01.09.2009, in favour of the 6th Defendant. The said Amendment Act had come into force with effect from 09.09.2005. As per Section 6 of the said Amendment Act, even though the daughter of a coparcenary by birth become a coparcener in her own right in the same manner as the son and has the same rights in the coparcenary property as she would have had if she had been a son, but the Proviso to Section 6 provides 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. Thus, any transaction, disposition or alienation of the ancestral property/coparcenary property prior to 20.12.2004 is saved. It can also be said that the Hindu Succession (Amendment) Act, 2005 is prospective and retroactive in nature 9/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015 and that what is stated is 'disposition' or 'alienation' and not with respect to clear and marketable title. As such, in the case on hand, even though the Plaintiffs became coparceners in the ancestral properties, namely, item (1) of the A-Schedule properties, since the alleged alienation took place in the year 2001, in respect of the item (1) of the A-Schedule properties, the Plaintiffs are estopped from claiming partition or any right over the same prior to 20th December, 2004, as it was not available with the joint family as on 20.12.2004 or 09.09.2005, when they became coparceners. In other words, the above said amendment to Section 6 of the Hindu Succession Act, shall not affect the sale deed, Ex.B1, dated 20.03.2001, as the same is prior to the relevant date, i.e. 20.12.2004. Under the said circumstances, the question of doubting the sale deeds Ex.B1 and Ex.B2 does not arise at all.
21.It is also seen from the oral evidence of PW.1 that the Plaintiffs were aware of Ex.B1 and Ex.B2, sale deeds, however, they did not object to the said documents or take any action, claiming right or share in the item (1) of the A- Schedule of properties against the 7th Defendant and it may be because of the fact that in 2001, the Plaintiffs did not have right as coparceners. The recitals in Ex.B1 and Ex.B2 cannot also be ignored. Even in the suit, there is no relief sought for as against the sale deeds, Ex.B1 and Ex.B2, except mere pleading that the said documents will not bind them. In such view of the matter, claiming share after the property in question was sold in 2001 under Ex.B1 to the 7th Defendant and thereafter, under Ex.B2 to the 6th Defendant in 2009, cannot be legally sustained.
10/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015
22.At this juncture, it is appropriate to refer to the decision reported in 2020 9 SCC 1:2020 5 LW 300 (Vineeth Sharma Vs. Rakesh Sharma and others), which was rendered by the Larger Bench of the Honourable Supreme Court, pursuant to the reference, concerning the interpretation of Section 6 of the Hindu Succession Act, 1956 (in short, the Act of 1956) as amended by the Hindu Succession (Amendment) Act, 2005 (in short, the Act of 2005), made, in view of the conflicting verdicts rendered in the two Division Bench judgements of the Honourable Supreme Court in 2016 2 LW 865:2016 2 SCC 36 (Prakash and others Vs. Phulavati and others) and 2018 3 LW 341: 2018 3 SCC 343 (Danamma Vs. Amar). In the said decision, there was a detailed discussion regarding prospective statute, retrospective statute and retroactive statute and it was held as follows:-
“60. The amended provisions of Section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener “in her own right” and “in the same manner as the son”. Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property “as she would have had if she had been a son”. The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9-9-2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20-12-2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated.(emphasis supplied).
...........11/14
https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015
137. Resultantly, we answer the reference as under:
137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.
137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005, with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004. (emphasis supplied).
..............”
23.In view of the above discussions and reasons and in the light of above decision, this Court comes to the conclusion that the Trial Court was right in excluding the item (1) of the A-Schedule properties from partition and that the lower appellate court did not consider the said Proviso to Section 6 of the Hindu Succession Amendment Act, 2005, in a proper and perspective manner and erroneously allowed the appeal and that the lower appellate court was not right in holding that the Plaintiffs were entitled to a share equal to that of their brother Arumugam and also in granting a preliminary decree for partition holding that they together were entitled to 2/3 rd share in the item (1) of the A-Schedule properties and hence, the impugned judgement of the lower appellate court is liable to be set aside. Accordingly, the substantial questions of law (a) and (b) are answered in favour of the Appellant and consequently, the substantial questions of law (c) need not be gone into detail and is answered in favour of the Appellant, in view of the facts that as stated above, Plaintiffs are estopped from claiming any share in the item(1) 12/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015 of the A-Schedule properties and that since the Defendants 2 and 5 are also on the same footing as that of the Plaintiffs, they cannot also claim any share in the item (1) of the A-Schedule properties.
24.In fine, this Second Appeal is allowed. No costs. Consequently, the connected MP is closed.
12.11.2021 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm To
1. The Principal District Munsif Court, Dindigul
2. The Additional Sub Court, Dindigul.
3. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai 13/14 https://www.mhc.tn.gov.in/judis SA(MD).No.367 of 2015 A.A.NAKKIRAN, J.
Srcm Pre-Delivery Judgement in SA(MD).No.367 of 2015 12.11.2021 14/14 https://www.mhc.tn.gov.in/judis