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[Cites 43, Cited by 1]

Madras High Court

Family Manager Dr.N.Gunasekar vs N.Santha on 5 August, 2011

Author: S.Rajeswaran

Bench: S.Rajeswaran

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:     05.08.2011

CORAM

THE HON'BLE MR.JUSTICE S.RAJESWARAN

Civil Revision Petition No.2165 of 2008
and
M.P.No.1 of 2008


Family Manager Dr.N.Gunasekar			      	... Petitioner

Vs.

1.N.Santha
2.Thenayal     				 		... Respondents


Prayer: This petition has been filed under Article 227 of the Constitution of India aganist the fair and final order passed by the Principal Sub Court, Gobichettipalayam dated 23.04.2008 made in I.A.No.68/2008 in O.S.No.74 of 2004.


		For petitioner		:	Mr.S.V.Jayaraman
							Senior Counsel 
							for Mr.M.Duraisamy	
	
		For respondents  	:	Mrs.Hema Sampath
							Senior Counsel
							for Mr.I.C.Vasudevan

* * * * *
ORDER

This Civil Revision Petition has been filed against the order dated 23.04.2008 made in I.A.No. 68 of 2008 in O.S.No. 74 of 2004 on the file of the Principal Sub Court, Gobichettipalayam.

2. This Civil Revision Petition has been filed by the defendant in O.S.No.74 of 2004.

3. O.S.No.74 of 2004 has been filed by the respondents/plaintiffs before the Subordinate Court, Gopichettipalayam, for partition and separate possession and for injunction.

4. The case of the plaintiffs in the said suit was that, the suit properties are the ancestral properties which fell to the share of their late father M.C.Narayanaswamy under a Registered Family Partition Deed dated 27.01.1963. The suit properties were not partitioned during the life time of their father and during his life time he had executed an unregistered will on 02.10.2001, bequeathing the entire properties to the respondents/plaintiffs and therefore, the respondents/plaintiffs are entitled to = share of the suit properties and the defendants and his heirs are entitled to the other = share. The defendant filed a written statement and the suit is being contested. While so, pending suit, the plaintiffs filed I.A.No.361 of 2007 to amend the plaint claiming 7/12th share in the suit properties on the basis of the rights under the Hindu Succession (Amendment) Act 39 of 2005. The said application was resisted by the petitioner/the defendant in the suit by filing a counter. The trial court by order dated 07.12.2007, dismissed the application. No revision was filed against the said order and the same became final. Thereafter, the suit was taken up for final hearing. At that time, the plaintiffs filed I.A.No.68 of 2008 to withdraw the suit with a liberty to file a fresh suit for the same cause of action in the light of the Hindu Succession (Amendment) Act, 2005. This application was resisted by the petitioner herein/the defendant in the suit by filing a counter. The trial court allowed the application by order dated 24.03.2008. Aggrieved over the same, the above revision has been filed by the defendant.

5. I have heard the learned senior counsel, Mr.S.V.Jayaraman appearing for the petitioner and the learned senior counsel, Mrs.Hema Sampath appearing for the respondents/plaintiffs. I have also gone through the documents available on record.

6. The learned senior counsel appearing for the petitioner would contend that having suffered an order of dismissal in the application filed by the plaintiff to amend the plaint, as per the provisions of the Hindu Succession (Amendment) Act 39 of 2005 and having allowed the same to become final, filing an application again to withdraw the suit and to file a fresh suit for the same cause of action ought not to have been allowed by the trial court. According to the learned senior counsel, the plaintiffs are estopped from claiming any larger relief even if it is available by way of a fresh suit. He further submits that the Amended Act 39 of 2005 will not apply to the case of the plaintiff, as it is not retrospective in operation. Admittedly, the father of the plaintiffs died on 14.10.2001 and the amended Act came into force only in the year 2005. On the death of Mr.Narayanaswamy/the father of the plaintiffs, there was a divastation in the coparcenary and the Hindu Succession Act therefore has no application at all. Therefore, according to the learned senior counsel for the petitioner, the application ought not to have been allowed by the trial court and the order has caused enormous prejudice to the defendant. Hence, it requires interference by this Court. In support of his submissions, the learned senior counsel relied on the following judgments:

1.1971 (2) MLJ 126 (T.N.Ranganathan vs. T.K.Subramaniam) 2.1984 (1) MLJ 28 (Lala Chatram, rep. By hereditary and Manging Trustee, R.Ramanatha Misra, Advocate, having its office at Yanaikkal, Madurai vs. Krishnammal and others) 3.1998 (3) CTC 571 (R.Asokan vs. P.Muthusamy and 3 others) 4.1999 (2) CTC 593 (R.Rathinavel Chettiar and another vs. V.Sivaraman and others) 5.1996 (2) CTC 127 (R.Thyagarajan vs. Meenakhi Ammal) 6.1996 (2) SCC 167 (Bakhtawar Singha nd another vs. Sada kaur and another)
7.AIR 1971 MYSORE 334 (V.Narayanappa vs. Narayanappa and another) 8.2003 (3) MLJ 551 (Duraikannu and others vs. Malayammal) 9.2000 (3) CTC 558 (K.S.Boopathy and others vs. Kokila and others) 10.2006 (4) MLJ 919 (Murugesan vs. Alamelu Ammal and others) 11.2006 (8) SCC 581 (Sheela Devi and others vs. Lal Chand and another) 12.2007 (2) TNT 193 (Jayalakshmi and another vs. Govindammall and others) 13.2008 (1) MLJ 560 (Angammal and another vs. C.Sellamuthu and another)

7. Per contra, the learned senior counsel, Mrs.Hema Sampath appearing for the respondents/plaintiffs while supporting the order passed by the trial court in allowing the application, would refer to the following judgments.

1.1999 (3) LW 227 (SC) (The Executive Offier, Ardhanareeswarar Temple vs. R.Sathyamoorthy and others) 2.99 LW 458 (SC) (M/s.Konkan Trading Company vs. Suresh Govind Kamat Tarkar and others)

3. 1991 (3) SCC 647 (S.Sai Reddy vs. S.Narayana Reddy and others)

8. I have considered the rival submissions carefully with regard to the facts and citations.

9. Admittedly, the case of the plaintiffs in O.S.No.74 of 2004 is that their father executed an unregistered Will on 02.10.2001 bequeathing the entire suit property to them. Therefore, they prayed for a decree of partition of the suit properties into two equal shares and allotting one such share to the plaintiffs with separate possession. The Will was seriously questioned by the defendant stating the Will dated 02.10.2001 is a rank forgery. While so, in October 2007, the plaintiffs filed I.A.No.361 of 2007 to amend the plaint as per the details given in the petition. In the details given in the petition, it was stated that as per Hindu Succession Amendment Act, 2005, the first plaintiff is entitled to a share equal to that of his brother/the defendant. Therefore, both the plaintiffs are entitled to a total of 7/12 share in the suit property. It is evident from the I.A.No.361 of 2007 that plaintiffs wanted to take advantage of the Hindu Succession Amendment Act, 2005, eventhough the case pleaded in the plaint is that, an unregistered Will was executed by the father of the first plaintiff on 02.10.2001 bequeathing the entire suit property to the plaintiffs.

10. The reason given by them for seeking amendment in I.A.No.361 of 2007 is that if they are unable to prove the will, then they would be entitled to the 7/12th share in the suit property as per the Hindu Succession Amendment Act, 2005. The trial court by the order dated 07.12.2007 dismissed the application and admittedly it was not challenged in the manner known to law and the said order has reached its finality. After dismissal of I.A.No.361 of 2007 on 07.12.2007, the plaintiffs on 06.02.2008 filed I.A.No.68 of 2008 under Order 23 Rule 1(3) CPC to withdraw the suit with a liberty to file a fresh suit on the very same cause of action by incorporating appropriate relief in the light of the provisions of the Hindu Succession Amendment Act, 2005. The trial court, on 23.04.2008, in I.A.No.68 of 2008 allowed the application and aggrieved by the same, the above revision petition has been filed.

11. From the admitted facts narrated by me as above, it is very clear that I.A.No.68 of 2008 was filed by the plaintiffs after their application filed in I.A.No.361 of 2007 was dismissed by the trial court. This fact itself is sufficient to reject the I.A.No.68 of 2008, but, the trial court without considering the facts in the proper perspective and without looking into the provisions of Order 23 Rule 1(3) of CPC, allowed the application and it is a fit case for this Court to interfere with under Article 227 of the Constitution of India.

12. Order 23 Rule 1 CPC is extracted below for better appreciation of its provisions:

1. Withdrawal of suit or abandonment of part of claim (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied,
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]

13. From the above, it is very clear that the Court can give liberty to institute a fresh suit when:

1.the suit must fail by reason of some formal defects; and
2.there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit clam or part of the claim.

14. Therefore, when an application is filed under Order 23 Rule 1(3) CPC, the court has to find out whether any one of the two reasons spelt out under Order 23 Rule 1(3) CPC are present and only when anyone of these two reasons get attracted, liberty can be given for withdrawing the suit and to file a fresh suit.

15. In the present case, the reasons given by the plaintiffs for seeking the relief under Order 23 Rule 1(3) CPC is that the application filed by them in I.A.No.361 of 2007 was dismissed on 21.12.2007 on technical grounds. If the matter was taken up to the High Court by way of a revision, it may consume a lot of time and incur heavy expenditure. Therefore, they were advised to withdraw the present suit with the liberty to file a comprehensive fresh suit in the light of the provisions of the Amendment Act, 2005. These reasons given by the plaintiffs for filing an application under Order 23 Rule 1(3) CPC are hardly sufficient and unacceptable as by this they only wanted to get away from the orders suffered by them in I.A.No.361 of 2007 on 07.12.2007. In other words, the plaintiffs wanted to maintain a clean slate by rubbing out the adverse orders suffered by them earlier.

16. Now, let me consider the decisions submitted by the learned senior counsel appearing on either side.

17. In AIR 1971 MYSORE 334 (cited supra(), it was held as follows:

"7. It is clear from the material on record in this case that the plaintiff tried to have the matter of adoption brought before court by means of an application for amendment. That application was rejected and this court declined to interfere with that order as the same could be challenged by the plaintiff in an appeal under Section 105 C: P. C., if the plaintiff failed in the suit and filed an appeal before the appellate court. When the plaintiff's attempt to have the amendment of the plaint failed the present application is filed stating that there is a formal defect. The defect stated in the present case should not come into any of the categories of 'formal defect' stated in AIR 1940 Bom 121 (FB). I am of the view that the court below had no jurisdiction in these circumstances to grant permission or liberty to withdraw the suit with permission to file a fresh suit. The only reason stated by the learned Munsiff is that the plaintiff having failed in his amendment application is denied an opportunity to prove the matter and hence there is a formal defect. This view taken by the learned Munsiff as to what 'formal defect' is, in my opinion, plainly erroneous. Having regard to the principle stated earlier, this is a case in which the attempt to introduce a new matter at a late stage having failed, the plaintiff wants to take advantage of having a fresh trial by having the other matters which were rejected being brought into the new suit. That is not the object for which the provision is made under Order 23, Rule 1 C. P. C., I am therefore, of the opinion that the court below has exercised the jurisdiction not vested in it by allowing the plaintiff to withdraw the suit with liberty to file a fresh suit That order has to be set aside."

18. In the above case also, the application was filed by the plaintiff for amendment of the plaint. That was rejected by the trial court and the same was also confirmed by the High Court. Thereafter, an application was filed under Order 23 Rule 1 CPC, seeking liberty to withdraw the suit and the same was allowed by the trial court. When the correctness of the order was questioned, the High Court held in the above terms and this judgment is definitely supporting the case of the petitioner herein.

19. In 2003 (3) MLJ 551 (cited supra), this Court held as under:

"4. This revision lies in a narrow campus. The petitioners have filed the application under Order 23 Rule 1 (3) CPC seeking permission of the Court to withdraw the suit and to file a fresh suit for the very same cause of action. Order 23 Rule 1 (3) CPC runs as follows:-
1. Withdrawal of suit or abandonment of part of claim: (3) Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.

5. Under Clause (b) of Order 23 Rule 1 (3), suit can be withdrawn with a liberty to sue afresh on sufficient grounds. The expression "sufficient grounds" must be read 'ejusdem generis' with clause (a) and a ground to be sufficient ground must be similar or alike to the cause mentioned in Order 23 Rule 1 (3) (a).

7. The granting of the permission to withdraw with liberty to bring a fresh suit removes the bar of resjudicata which would otherwise apply, if a fresh suit on the same cause of action is brought. Clause (3) contemplates the circumstance in which the permission could be granted by the Court on its satisfaction namely (i) a suit must fail by reason of formal defect and (ii) there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim.

8. Formal defect means a defect of form, which is prescribed by Rules or Procedure. A defect which goes to the root of the plaintiff's claim is not a formal defect. The formal defect may be omission to obtain permission of Court to file the suit, misjoinder of parties or cause of action, failure to disclose cause of action for the plaint, erroneous valuation of the subject matter of the suit and institution of a suit in a Court which has no jurisdiction to entertain it.

9. The other sufficient ground is that the defect must not be due to plaintiff's own fault, hence the expression 'other sufficient ground' should be construed 'ejusdem generis' with formal defect. The failure of the plaintiff to prove his own case is no ground for allowing him to withdraw his suit with liberty of suing again for the same subject matter.

10. The object of the Rule is not to enable a plaintiff, after he failed to conduct his suit with proper care and diligence and after his witnesses failed to support his case, to obtain an opportunity of commencing the trial afresh in order to avoid the result of his previous bad conduct of the case so as to prejudice the opposite party.

11. The sufficient grounds are like the evidence being not available for no fault of the plaintiff, the suit being pre-matured and the cause of action accruing pending the suit, the plaintiff has failed to put in evidence an important document and where the plaintiff had been mislead by the absence of a specific denial by the defendant.

12. After satisfaction, the Court may grant permission. The matter of granting permission under this Rule is within the discretion of the Court. The Court, when granting permission under this Rule must give its reason for granting such permission, although in the case of refusal there is no such obligation."

20. In the above decision, this Court held that the matter of granting permission under Order 23 Rule 1 CPC is within the jurisdiction of the Court and when granting permission the Court must given reasons, although in the case of refusal there is no such obligation.

21. If the reason given by the trial court for granting permission is looked into, I hardly find any reasons, much less any acceptable reasons. The order is cryptic and is without analysing the facts and without containing reasons for granting permission.

22. In 1996 (2) CTC 127 (cited supra), this Court observed as follows:

"4. In such a situation, as rightly pointed out by the learned Counsel for the petitioner, there is no case at all for invoking Order 23, Rule 1(3) of the Code of Civil Procedure. The said rule says:
"Where the Court is satisfied:-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit... with liberty to institute a fresh suit in respect of the subject matter of a such suit."

It is clear to me that there is no formal defect involved at all in the present case. If really the plaintiff wanted to further amend the plaint, even after the abovesaid I.A. No. 16657 of 1990 he could have filed immediately after I.A. No. 16657 of 1990 was filed necessary application for amending the plaint without doing so, only in 1995, the present I.A. is filed. Order 23, Rule 1 (3) of the Code cannot be invoked unless the suit must fail by reason of some formal defect. No doubt, in clause (b) of the said Rule 3, it is mentioned that even for sufficient grounds similar relief could be granted. But even then the term "sufficient grounds" have been interpreted to mean grounds skin to the earlier mentioned ground of formal defect. At any rate, the claim made in the I.A. cannot at all be a sufficient ground for invoking Order 23, Rule 1 (3) of the Code. The plaintiff could have very well filed an I.A. seeking amendment of the plaint. Without filing an application for amendment of the plaint, (if really any new amendment is necessary) he cannot in the above circumstances invoke Order 23 Rule 1 (3) of the Code."

23. In 1998 (3) CTC 571 (cited supra), this Court held as follows:

"4. While dealing with the similar issue, in Basudeb Narayan v. Shesh Narayan, AIR 1979 Pat.73, the learned Judge has dealt with the right of the plaintiff and has held as follows:-
"The principles which can be deduced out of the cases aforesaid are clearly the following:-
(1) The plaintiff under sub-r.(1)of Rule 1 of Order 23 of the Code has a right to withdraw a suit at any stage; (2) that such a right of the plaintiff is limited to the extent that it does not result in defeating a right which has already vested in the defendant, such a right may have become vested in the defendant either on account of a compromise or a concession or a decree or an award or similar circumstances; (3) that in a partition suit every defendant is virtually in the position of a plaintiff, his claim being founded on a claim similar to that of the plaintiff; and (4) that 0.23, R. 1 sub-r.(l) of the Code applies even to a partition suit, subject to the aforesaid limitation."

5. The apex court while dealing with similar issue in R.Ramamurthi v. V.Rajewararao, AIR 1973 SC 643 has held as follows:-

"Even if the plaintiff does not wish to prosecute that suit or wishes to withdraw it the defendant or defendants can ask for being transposed to the array of plaintiff to have his or their share partitioned.
It has further been emphasised that in a partition suit the plaintiff is not wholly dominus litis and even on the assumption that S. 3 confers a privilege or an option on the shareholder who is a defendant in a suit for partition the plaintiff is debarred from defeating the exercise of that privilege or option by resorting to the device of withdrawing a suit under Order 23, Rule 1".

From the abovesaid decisions it is very clear that the plaintiff has no absolute right to withdraw the suit ignoring the other share holders. In this case, the plaintiff has specifically accepted the share of the petitioner/first defendant, and with the intention of avoiding the first defendant, he was given up and they have entered into compromise with the other defendants though the first defendant has claimed his right and paid the court fee."

24. In the above decision, it is made clear that the plaintiff has no such absolute right to withdraw a partition suit as in a partition suit, the plaintiff is not wholly dominus litis.

25. In 1984 (1) MLJ 28 (cited supra), this Court held as under:

"7. The Civil Procedure Code, confers a discretion on the Court to grant to a plaintiff in a suit permission to withdraw the suit with liberty to institute a fresh suit in respect of the same subject-matter where the Court is satisfied that the suit must fail by reason of some formal defect or that are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject-matter. The learned Subordinate Judge in this case regarded the dismissal of Krishnammal's suit by the learned District Munsif as having been based on a mere formal defect. The learned Judge also observed that it was a bona fide mistake on Krishnammal's part to have described the suit plot as falling exclusively in T.S. No. 620. The learned Judge further observed that no prejudice would be caused to the defendant Lala Chatram in the event of a fresh suit being filed carrying the correct description and survey number of the suit plot. The learned Judge overruled all the objections to the contrary put forward by the Chatram.
8. In my judgment, the learned Subordinate Judge was palpably in error in thinking that no prejudice would be caused to the Chatram by granting leave to Krishnammal to withdraw her suit. The learned Judge overlooked that the suit had been dismissed by the trial Court, and the title of Lala Chatram had been upheld after full adjudication. The order granting withdrawal of the suit, when an appeal had been filed by Krishnammal against the dismissal of her suit, and during the pendency of that appeal, has the effect of reversing the trial Court's decree in the Chatram's favour without going into the merits of the findings recorded by the trial Court in the Chatram's favour. In these events, to take the stand that the withdrawal of the suit, at this juncture, would spell no prejudice to the Chatram is to be selectively blind to the realities of this litigation.
9. In a recent reported judgment of mine, Charles Samuel v. Board of Trustees, Devaswam Board Office, Suchindram (1978) 91 L.W. 320. I have held that the withdrawal of a suit in such circumstances cannot be regarded as a withdrawal on account of a formal defect. I have also held that it would be a wrong exercise of discretion granted by Order 23, Rule 1 of the Code to grant leave to withdraw the suit in such a situation. There would be absence of prejudice in such cases only if what is asked for is the withdrawal of the appeal, and not the withdrawal of the suit, against the dismissal of which the appeal has been preferred.
10. In a subsequent decision of a Division Bench of this Court in K.Chinna Vaira Thevar v. S.Vaira Thevar (1982) 2 M.L.J. 400, the decision of mine was briefly noticed. The judgment of the Division Bench is notable, however, for the restatement of the law governing the discretion of the Court under Order 23, Rule 1 of the Code. In that case the controversy arose in a suit for declaration of title. The issue before the trial Court was as to the precise correlation between an ancient paimash number and a new survey number touching the identification of the suit property. It was found by the trial Court that the plaintiff could not correlate the suit property to any item in a previous proceeding wherein the property was described with reference to paimash numbers. On that account the suit was dismissed. The plaintiff appealed, but pending disposal of the appeal, asked for permission to withdraw the suit with liberty to file a fresh suit. This permission was granted in the revision which was heard by the Division Bench, the decision of the appellate Court was reversed. The learned Judges observed that the mere fact that the plaintiff was not able to secure the necessary evidence at the trial stage to prove his case about the correlation between paimash number and survey number was no ground for invoking Order 23, Rule 1 of the Code. In the course of their judgment, the learned Judges referred to a judgment of Yahya Ali, J., Sivagaminatha Pillai v. Venkataswami Naicker, in which that learned Judge observed that where after an appreciable portion of the material evidence has been adduced, the plaintiff finds that the evidence was insufficient to establish his case and applies for withdrawal of the suit, it would be contrary to the law as well as the spirit of Order 23, Rule 1 (2) of the Code to permit him to withdraw the suit and institute a fresh suit on the same cause of action. Commenting on this judgment of Yahya Ali, J., the learned Judges of the Division Bench expressed the view that if even at the trial stage the plaintiff could not be permitted to withdraw the suit, on the basis of insufficient evidence adduced by him at the trial, such a permission to withdraw the suit cannot be granted at the appellate stage when the trial Court had considered the entire evidence on merits and held that the evidence adduced by the plaintiff was insufficient to establish his case.
11. My purpose in referring to the Division Bench in detail is just to show in what way the Court below should have dealt with the plaintiff's application for withdrawal of the suit. This is not a case where Krishnammal contends that there is some further evidence to be let in to establish her case. On the contrary, what she wants to secure is to be wipe the slate clean of her own pleadings and to start a fresh litigation on fresh pleadings. So put, I think the case against the grant of permission to withdraw the suit is a fortiori. There is yet another reason. I have earlier pointed out how, before trying her application under Order 23, Rule 1, Krishnammal had earlier tried an application before the appellate Court for leave to amend the plaint Schedule and argue the appeal on that basis. That application was dismissed by the Sub-Court. The decision was upheld and rightly, so, by this Court in revision. I have quoted verbatim from the order of this Court in revision. In that order this Court clearly held that to allow the amendment application would be to alter the very subject-matter of the suit beyond recognition. It is regrettable that not a word is mentioned in the order presently under revision about these abortive proceedings taken by Krishnammal for getting her plaint amended as a means of sustaining her suit claim. This is particularly the reason why I have characterised the order of the learned Subordinate Judge, as perverse in addition to its being a non-exercise or irregular exercise of judicial discretion under Order 23, Rule 1 of the Code."

26. In this case, the plaintiffs suit was dismissed. The prayer in the suit is for declaring a title of a vacant space of land and the schedule attached to the plaint, the S.No. of the plot was shown as T.S.No.620. The defendant laid a claim to the title of the suit plot which was included in a different S.No.T.S.No.629. The trial judge found that the suit property was falling within T.S.No.629 and accordingly dismissed the suit. In the appeal filed by the plaintiff, she filed an application for amendment of the plaint schedule describing the suit plot as falling both in the T.S.No.620 and T.S.No.629. This amendment application was dismissed by the Appellate Court and the order was confirmed in revision on 07.07.1977. On 18.02.1978, she filed an application before the Sub Court seeking permission to withdraw the suit with a liberty to file a fresh suit in respect of the same subject matter on the very same cause of action. The reason given was that the description of the suit plot in the plaint schedule as lying exclusively in T.S.No.620 was a mistake. The Appellate Court allowed the application and aggrieved over the same, the defendant filed Civil Revision Petition before this Court and this Court allowed the Civil Revision Petition, stating the reasons as stated above for setting aside the order of the appellate stage. Hence, this decision is also supporting the case of the revision petitioner herein, as the facts are more or less similar.

27. In 1999 (2) CTC 593 (cited supra), the Hon'ble Supreme Court observed as under:

"5. The relevant portion of Order 23 Rule 1 provides as under:-
"1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
.......................................
(2) ..................................
(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) ...................................
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

6. Order 23 Rule 1, quoted above, provides that a plaintiff can withdraw a suit or abandon a part of his claim unconditionally. It creates a right in favour of the plaintiff to withdraw the suit, at any time, after its institution. Once the suit is withdrawn or any part of the suit is abandoned against all or any of the defendants, unconditionally, the plaintiff cannot bring a fresh suit on the same cause of action unless leave of the Court is obtained as provided by Order 23 Rule 1(3)(b).

7. In other words, a plaintiff cannot while unconditionally abandoning a suit or abandoning a part of his claim, reserve to himself the right to bring a fresh suit on the same cause of action. ( See: Hulas Rai Baij Nath vs. K.P. Bass & Co., AIR 1968 SC 111 = 1967 (3) SCR 886)."

28. In 1971 (2) MLJ 126 (cited supra), this Court held as follows:

"5. As regards the second contention however I find that there is considerable force. When the petitioner seeks to withdraw the suit with liberty to file a fresh suit on the same cause of action, the lower Court cannot direct the withdrawal of the suit without giving liberty to file a fresh suit on the same cause of action. If the Court thought that the petitioner is not entitled to the liberty sought for by him, it should have dismissed the application without dismissing the suit on the basis that it has been withdrawn. As pointed out by Wanchoo, C.J., (as he then was) in Maru v. Mt. Najo , when an application for permission to withdraw a suit with permission to institute a fresh suit is made under Sub-rule (2) of Order 23, Civil Procedure Code, is not open to the Court to treat it as if it is an application under Sub-rule (1) without any condition and to grant the prayer for withdrawal and refuse the prayer for permission to bring a fresh suit and the prayer under Sub-rule (2) must be treated as one whole and the Court may either reject the entire prayer and allow the suit to proceed or allow the entire prayer, that is, permit the withdrawal of the suit with liberty to bring a fresh suit. The reason is obvious. If the Court grants the petitioner the permission to withdraw, but refuses the permission to institute a fresh suit, the result would be that the plaintiff would be deprived of carrying on with the suit as best as he can and would also not be permitted to file a fresh suit on the same cause of action, and it was not the intention of the Legislature that the plaintiff should be put to this loss by breaking up the prayer for withdrawal with permission to file a fresh suit about the same subject-matter into two parts. This is also the view taken in Marudachala Nadar v. Chinnamuthu Nadar.
6. The learned Counsel for the respondents, however, submits that the facts in this case will fall within the ruling of Panchapakesa Ayyar, J., in Veeraswami v. Lakshmudu. In that case the plaintiff filed a petition to withdraw suit with permission to file a fresh suit regarding the same subject-matter under Order 23, Rule 1 (2), Civil Procedure Code, and the Court was not willing to grant the permission sought for but passed an order "the petitioner may withdraw the suit if he wants. This is not a case for which permission can be given to withdraw the suit with liberty to bring a fresh suit. Petition is dismissed." When that order was challenged in revision before this Court, it was expressed that the order passed by the lower Court gave an option to the plaintiff to withdraw the suit if he wants and there is no order by the Court dismissing the suit as having been withdrawn. I do not see any similarity between the facts in that case and the facts arising in this case. In this case the lower Court has actually passed an order permitting the petitioner to withdraw "the suit without liberty and providing for the costs of the suit to the respondents and dismissing the suit simultaneously as having been withdrawn on petition". The learned Counsel for the respondents submits that the petitioner could have resisted the dismissal of the suit as having been withdrawn and offered to go on with the trial of the suit without allowing the suit to be dismissed as having been withdrawn. But from the records it is seen that the lower Court passed an order both in the application as well as in the suit simultaneously and that there was no time lag between the disposal of the application as well as the suit. Even in the decision in Veeraswami v. Lakshmudu, it has been made clear that when an application is filed for withdrawal of the suit with permission to file a fresh suit on the same cause of action, the Court has a right to dismiss the petition telling the petitioner that he might withdraw the suit if he wants, but it will not give him permission to file a fresh suit regarding the same subject-matter, and that such an application must be allowed or refused in toto and that if the liberty is refused the suit should not be dismissed at once but retained for trial in the usual course and the Court cannot divide the petition into two and accept the withdrawal and refuse the liberty in the same order. In this case the lower appellate Court after finding that the petitioner is not entitled to the liberty sought for should have dismissed the application and given a liberty to the petitioner to proceed with the suit. But the lower Court has, however, proceeded to order the petition permitting him to withdraw the suit without liberty and actually dismissed the suit as having been withdrawn. The order of the lower Court cannot be supported and has to be set aside. I, however, uphold the order of the lower Court that the petitioner has not made out a ground for giving liberty to file a fresh suit on the same cause of action. The result is that the order giving him permission to withdraw the suit is set aside and the consequential order passed in the suit dismissing the suit as having been withdrawn on petition is also set aside. The lower Court is directed to restore the suit to file and dispose of the same on merits. As the suit is of the year 1966, the lower Court is directed to dispose of the suit as early as possible. No costs."

29. In 1996 (11) SCC 167 (cited supra), the Hon'ble Supreme Court held as follows:

"8. The contention of the learned counsel for the appellants is that since the plaintiffs had withdrawn their earlier suit (Civil Suit No. 661 of 1964) with pepmission to file a fresh suit on the same cause of action in accordance with the provisions coontained in clause (3) of Rule 1 of Order XXIII of the Code of Civil Procedure (hereinafter 'the Code') and, therefore, the plaintiffs were entitled to exclude the time spent in prosecuting the said earlier suit as provided under Section 14 of the Limitation Act, (hereinafter 'the Act'), The question, therefore, that aries for our consideration is where the plaintiffs-appellants were permitted to withdraw the suit in accordance with the provisions contained in clause (3) of Order XXIII, Rule 1 of the Code and whether in the facts and circumstances of the present case the plaintiffs-appellants are entitled for exclusion of the time under Section 14 of the Act. Clause (3) of Order XXIII Rule 1 of the Code contemplates that where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient ground for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or part of a claim, it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of claim with liberty to institute a fresh suit in respect of subject matter of such suit or such part of the claim. In the present case all the courts below including the High Court concurrently found that the plaintiffs/appellants failed to produce any evidence to show that the permission to withdraw the suit was given on the ground that the suit was bound to fail by reason of some formal defect or there were sufficient grounds for allowing the plaintiffs to institute a fresh suit in respect of the same subject matter. Not only this, the plaintiffs had not even produced the application which is said to have been filed for withdrawal of the earlier suit with permission to file a fresh suit on the same cause of action to show as to what was the formal defect in the earlier suit by reason of which it was sought to be withdrawn. However, the order dated May 20,1971 passed by the civil court was on record which did not indicate as to what was the formal defect in the suit by reason of which the permission to withdraw the same was accorded. In these facts and circumstances no case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of the earlier suit was made out by the plaintiffs/appellants in accordance with the provisions of clause (3) of Order XXIII Rule 1 of the Code."

30. In 2006 (4) MLJ 919 (cited supra), this Court held as under;

"8. Court can permit withdrawal of a suit only if sufficient ground is shown. The petitioner/plaintiff must ask for leave and make out a case within clause (a) or (b). The principle under Order 23 Rule 1 (3) CPC is founded on a public policy to prevent institution of the suit again and again on the same cause of action. When applying for withdrawal, a general statement that there are formal defects or failure to furnish the description in the suit properties is not sufficient. The petitioner/plaintiff must specifically state the defect and as to how he is prejudiced.
9. The petitioner/plaintiff has no right to withdraw the suit where the rights of the parties with regard to any of the matters in controversy in the suit has been finally decided. The suit has been dismissed by the Trial Court and certain rights have been vested in the party in whose favour a decision is made. It conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit and therefore, at the stage of appeal, though it may be a continuation of proceedings, the petitioner/plaintiff has no absolute right to withdraw the suit. If an appeal was preferred by an unsuccessful plaintiff against the judgment dismissing the suit and if the petitioner/appellant/plaintiff wanted to withdraw not only the appeal, but also the suit unconditionally, then such permission insofar as the withdrawal of the suit is concerned can be granted, if there is no question of any adjudication on merits, in favour of the respondents/defendants by the Trial Court being nullified by such withdrawal. On the other hand, if any such findings by the Trial Court in favour of the defendants is nullified, then such permission for withdrawal of the suit should not be granted.
If a suit has been dismissed in part, thereby a judgment is rendered in respect of a relief, the respondents/defendants should not be deprived of the decision and the findings rendered in the Lower Court. The mere general statement that there is a formal defect in the description of the suit schedule property is not sufficient to attract the said word."

31. In 2000 (3) CTC 558 (cited supra), the Hon'ble Supreme Court held as follows:

"17. From the above it appears that the approach of the High Court was that the plaintiff should have prayed for declaration of title which they had omitted to include in the plaint. It was for the plaintiffs to frame their suit in any form as advised. If they felt that there was a cause of action for declaration of their title to the suit property they could have made a prayer in that regard. If they felt that a declaration of their right to exclusive user of the pathway was necessary they should have framed the suit accordingly. On the other hand the plaintiffs merely sought a decree of injunction permanently restraining the defendants from disturbing their right of user of the property. From the facts and circumstances of the case as emanating from the judgments of the trial court and the first appellate court it is clear that the plaintiffs realised the weakness in the claim of exclusive right of user over the property and in order to get over the findings against them by the first appellate court they took recourse of Order XXIII Rule 1(3) CPC and filed the application for withdrawal of the suit with leave to file a fresh suit. The High Court does not appear to have considered the relevant aspects of the matter. Its approach appears to have been that since the interest of the defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the fresh suit to be filed, permission for withdrawal of the suit as prayed for can be granted. Such an approach is clearly erroneous. It is the duty of the Court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied with by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted at appellate or second appellate stage prejudice to defendant is writ large as he loses the benefit of the decision in his favour in the lower court.
18. For the reasons discussed in the foregoing paragraphs we have no hesitation to hold that the impugned order is unsustainable. Accordingly the appeal is allowed with costs. The order of the High Court dated 21.8.1998 granting permission for withdrawal of the suit with permission to file a fresh suit is set aside. The High Court will now proceed to dispose of the second appeal in accordance with law.

32. In 2006 (8) SCC 581 (cited supra), the Hon'ble Supreme Court held as follows:

"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 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 an exception to the general rules. It was, therefore, obligatory on the part of the Respondents-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 records to show that he was born prior to coming into force of the Hindu Succession Act, 1956."

33. In 2007 (2) TLT 193 (cited supra), this Court held as under:

"15. That apart, it is clear that the evidence of P.W.1 is not certain about the properties, apart from the fact that the properties which are standing in the name of Vengadapathy Gounder which were purchased by him after the death of his father Murugesa Gounder and sold by him to third parties have also been included. Again the Trial Court has found that Ex.B.8 Will executed by Annammal in favour of Vengadapathy Gounder has been proved in the manner known to law and there is absolutely no substance in the contention of the plaintiffs and on the other hand, the judgement of the Trial Court is based on sound reasoning and not perverse. The submission made by the learned counsel for the appellant based on the Hindu Succession (Amendment) Act, 2005 that by virtue of the amendment the daughter of a coparcenary family is also entitled in her own right in the same manner as son, has no relevance for the reason that the said central amendment which has come into effect from 09.09.2005 which is prospective as it is held by the Hon'ble Supreme Court in Sheela Devi and others Vs. Lal Chand and another reported in 2006(8) SCC 581 and therefore, the amendment is not applicable as far as the facts and circumstances of the present case."

34. In 2008 (1) MLJ 560 (cited supra), this Court held as follows:

"15. As correctly pointed out by the learned counsel for the respondents, the Supreme Court has held in Sheela Devi v. Lal Chand (supra), if succession has opened prior to Hindu Succession (Amendment) Act, 2005, the provisions of Amendment Act would have no application. It is based on the ratio decidendi given by the Supreme Court in the said judgement, the learned trial Judge has rejected the application for amendment on the ground that Chennimalai Gounder died on 23.6.2004. But a careful reading of the said judgement shows that in that case the High Court was required to determine as to whether the provisions of section 8 of the Act would apply to the facts of the said case or the law prior to the enforcement of 1956 Act would apply. The High Court having held that the nature of the prayer must be regarded as a Hindu coparcenery and as such the law applicable before the Act came into effect would govern the rights of the parties and not the provisions of the Act. It was in those circumstances, the Supreme Court held that if the succession is opened before the Amendment Act came into existence, the Amendment Act, 2005 would have no application. The Supreme Court further held as follows at p.803 of MLJ:
"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, the provisions of Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to the 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 Babulal, viz., Lalchand, 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 Lalchand, 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 Hindu Succession Act, 1956."

16. In any event, inasmuch as under the amended provision, especially the provisos to section 6(1) and 6(5) of the Act, any partition effected before 20th December, 2004 has been saved and on the facts of the case as it is narrated in the written statement that in the partition suit there has been a final decree passed on 11.8.1999 itself and on the basis of memo of compromise filed in which Chennimalai Gounder, who was a coparcener, ultimately died on 23.6.2004. Even as per the explanation, notional partition has taken effect from the date of his death, viz., 23.6.2004 before which time the partition has already been effected by way of final decree and therefore, as rightly pointed out by the learned trial Judge, there is no substance in the contention of the petitioners that by advent of law, viz., by way of amendment, the division of shares gets enlarged. In view of the same, there is no illegality or irregularity in the order of the learned trial Judge and the revision fails and the same is dismissed. No costs. Connected miscellaneous petition is closed."

35. The last three judgments are dealing with the applications of the amended Act made to the Hindu Succession Act to the facts of those cases and I am of the considered view that these judgments are not relevant for the purpose of deciding the issue involved in the present petition.

36. Now, let me consider the decisions relied on by the learned senior counsel for the respondents.

37. In 1999 LW 458 (cited supra), the Hon'ble Supreme Court held as follows:

"1. Has justice become the lip-aim of Courts instead of their life aim? Instead of dispensing justice, is justice being dispensed with? Is it a fact that only the spelling of the word (justice) is remembered and the content of the concept is forgotten? Were it not so, would a Court in its professed anxiety to do justice, dismiss a suit as incompetent on the ground that a sum of Rs. 100 ordered to be paid as costs whilst granting leave to withdraw the earlier suit with liberty to file a fresh suit was deposited 'after' the institution of the fresh suit and not 'before' the institution thereof.
4.We have heard the learned counsel for the parties. Parties have cited before us a number of decisions : Gollapudi Seshayya v. Nadendla Subbayaya & Anr., Shidramappa Mutappa Biradar v. Mallappa Ramachandrappa Biradar, Rama-Krishna Timmappa Shetti v. Hanumant Patgavi, Mast Ram Ram Charan & Ors. v. Deputy Commissioner, Bahraich and Anr., Binod Naik and Anr. v. Chandrasekhar Padhi & Ors., Chikkahanuma v. Smt. Venkatamma & Ors., and M/s. Raja Traders v. Union of India & Anr. We have carefully considered all the above decisions. Sub-rule (3) of rule 1 of Order XXIII of the Code of Civil Procedure, 1908 provides that where a Court is satisfied that a suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a cliam, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. While granting such permission, it is, therefore, open to a Court to direct the plaintiff to pay the costs of the defendants. Even if the order for costs in a given case is construed as directing payment of costs as a condition precedent for filing a fresh suit, the defect, if any, may be cured by depositing in Court or paying to the defendants concerned the costs within a reasonable time to be fixed by the Court before which the second suit is filed. If the plaintiff fails to comply with the said direction, then it will be open to the Court to reject the plaint, but if the amount of costs is paid within the time fixed or extended by the Court the suit should be deemed to have been instituted validly on the date of which it was presented. This view appears to be in consonance with justice whatever may have been the views expressed on the subject by the various High Courts so far. It does not militate against any express provision of law but on the other hand it advances the cause of justice. This view is also in accord with the spirit behind section 148 of the Code of Civil Procedure, 1908. All contrary views expressed by the various High Courts, therefore, stand overruled."

38. This judgment was pressed into service by the learned senior counsel to submit that the revision petitioner/defendant is raising only a technical plea and therefore, such technical plea could not be accepted to dispense the justice or else justice will be dispensed with.

39. I am unable to accept the submission made by the learned senior counsel for the respondents, as the facts stated in the above judgment are peculiar in nature and this decision will not be helpful to the case of the respondents.

40. In 1999 (3) LW 227 (cited supra), the Hon'ble Supreme Court held as follows:

"14. It is true that in a large number of cases decided by the High Courts, it was held while dealing with applications under Order 23, Rule 1, CPC, that if an appeal was preferred by an unsuccessful plaintiff against the judgment of the trial Court dismissing the suit and if the plaintiff appellant wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawl of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial court in favour of the defendant would get nullified, such permission for withdrawal of the suit should not be granted, (See Thakur Singh v. A.Achuta Rao (1977) 2 APLJ 111; Kedar Nath v. Chandra Koran ; K Dube v. Harcharan; Charles Samuel v. Board of Trustees [1978] 1 MLJ 243; Lala Chetram v. Krishnamoni [1984] 1 MLJ 28; Jubedan Begum v. Sekhawat All Khan ; Ram Dhan v. Jagat Prasad [AIR 1982 Raj p.235]. In the present case, the learned Judge felt that no such finding in favour of the Commissioner was being nullified by the withdrawal of the OP at the stage of revision and therefore the withdrawl of OP was permissible."

41. This judgment was also rendered in a different context, and therefore it is not helpful to the respondents.

42. In 1999 (3) SCC 647 (cited supra), the Hon'ble Supreme Court while considering the provisions of the Andhra Pradesh Amendment Act, 1986 to Hindu Succession Act, 1956 held as follows:

"5. Learned counsel for the appellant urged that since the preliminary decree had already been passed prior to the amended provision, the High Court committed an error in directing the trial court to allot shares to the unmarried daughters. Admittedly, under the unamended Act, women and unmarried daughters of a Hindu Mitakshara family were not entitled to any share in the joint family property. The State of Andhra Pradesh removed the injustice to the daughters so far as that State was covered by introducing the concerned amendment in the Act. The newly introduced Secltion 29-a reads as under:
"29-A. Equal rights to daughter in coparcenary property :- Notwithstanding anything contained in Sec. 6 of this Act, -
(i) In a join Hindu Family governed by Mitakshara law, the daughter of a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son.
(ii) At a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share, as is allotable to a son;

Provided that the share which a pre-deceased son or a pre-deceases daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;

Provided further that the share allotable to the predeceased child of a pre-deceased son or of a pre-deceased daughter, if such child had 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 of the pre-deceased daughter as the case may be;

(iii) Any property to which a female Hindu becomes entitled by virtue of the provisions of Cl. (i) 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, as property capable of being disposed of by her by will or other testamentary disposition;

(iv) Nothing in Clause (iii) shall apply to prior a daughter married to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.

6. It is obvious that under the aforesaid provision, the difference between daughter and son of the Mitakshara Hindu familyt is removed and the daughter is conferred the coparcenary rights in the joint family property by birth in the same manner and to the same extent as the son. She is, therefore, now entitled to claim partition and her share in the family property. The amending provision is a beneficial legislation which, among other things, is also directed towards eradicating social evils such as dowry and dowry deaths. It is also achieves the constitutional mandate of equality between sexes.

7. The question that falls for our consideration is whether the preliminary decree has the effect of depriving respondents 2 to 5 of the benefits of the amendment. The learned counsel placed reliance on Clause (iv) of Section 29-A to support his contention that it does. Clause (ii) of the section provides that a daughter shall be allotted share like a son in the same manner treating her to be a son at the partition of the joint family property. However, the legislature was conscious that prior to the enforcement of the amending Act, partitions will already have taken place in some families and arrangements with regard to the disposition of the properties would have been made and marriage expenses would have been incurred etc. The legislature, therefore, did not want to unsettle the settled positions. Hence, it enacted clause (iv) providing that clause (ii) would not apply to a daughter married prior to the partition which had already been effected before the commencement of the amending Act. Thus if prior to the partition of family property a daughter had been married, she was disentitled to any share in the property. Similarly, if the partition had been effected before September 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried was no given a share in the family property. The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is filed in a Court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits.

43. This judgment deals with the application of the provisions of the Andhra Pradesh Amendment Act and therefore, it cannot be pressed into service to support the order passed under Order 23 Rule 1(3) CPC.

44. In the light of the above facts and circumstances of the present case and on the basis of the judgments relied on by both the learned senior counsel appearing on either side, if the order under challenge is tested, I am of the considered view that the trial court has committed an irregularity in allowing the application filed under Order 23 rule 1(3) CPC and consequently, I have no hesitation in setting aside the order dated 24.03.2008 made in O.S.No.74 of 2007.

45. In the result, the above Civil Revision Petition is allowed. No cost. Consequently, connected miscellaneous petition is also closed.

cse To The Additional Subordinate Judge, Salem