Madras High Court
Premavathi vs / on 4 March, 2021
Author: G.Jayachandran
Bench: G. Jayachandran
A.S.No.241 of 2011
and
M.P.No.1 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :15.02.2021
Pronounced on :04.03.2021
Coram:
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
A.S.No.241 of 2011
and
M.P.No.1 of 2011
Boopathiammal (died)
1.Premavathi
2.Rajeshwai
3.Maheshwari .. Appellants
/versus/
1.Ranganayaki Ammal
2.Sundarrajan
3.Srinivasan
4.Padmanbhan
5.Malliga
6.E.Murugesa Chettiar .. Respondents
Prayer:- Appeal Suit has been filed under Section 96 of the Civil Procedure
Code, 1908, against the judgment and decree dated 15.09.2010 passed in
O.S.No.26 of 2006 by the I Fast Track Court, Additional District Judge,
Chengalpet.
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http://www.judis.nic.in
A.S.No.241 of 2011
and
M.P.No.1 of 2011
For Appellants :Mr.S.Parthasarathy, Senior Counsel
for Mr.L.Damodaran
For Respondents :Mr.C.Jagadish for
Mr.T.V.Krishnamachari
for R1 to R4
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JUDGMENT
This Appeal Suit has been filed against the judgment and decree dated 15.09.2010 passed in O.S.No.26 of 2006 by the I Fast Track Court, Additional District Judge, Chengalpet.
2.Parties to the litigation:
Rangasamy Reddiar had two sons and a daughter by name, Boologam Reddiar, Balaraman Reddiar and Boobathy ammal. Both sons predeceased Rangasamy Reddiar during the year 1983. Rangasamy Reddiar, Wife Kakkammal died in the year 22/01/1985. Rangasamy Reddiar died on 29/09/1994. His daughter Boopathi Ammal is the plaintiff in the suit for partition. Pending suit, she died and her legal heirs had entered into her shoes. The defendants 1 to 4 are the widow and children of Boologam Reddiar and the fifth defendant is the widow of Balarama Reddiar.
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3.Relief sought:
When the suit for partition laid in the year 1994 and taken on file as O.S.No.272/1994 by the Sub-Court, Chengalpattu (later transferred to the Additional District Court -FTC, Chengalpattu and renumbered as O.S.No.26/2006), the plaintiff claimed 41/180 shares. On the premise, the suit properties are the joint family properties of Rangasamy Reddiar and his two sons. Later, after the amendment to Section 6 of the Hindu Succession Act, 1956 with effect from 09/09/2005, the relief was altered to 1/3 rd share in the suit property. After full trial, the trial court dismissed the suit. Hence, the present appeal.
4.The plaint averment in brief:
Rangasamy Reddiar acquired part of the suit properties under the registered partition deed dated 05/07/1958. From the income of this ancestral properties, Rangasamy Reddiar purchased the other properties either in his name or in the name of his two sons. They had no separate income and all the properties acquired subsequent to the partition are only accretion to the ancestral joint family property 3/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 of Rangasamy Reddiar. A house at T.Nagar was purchased in the name of Boologam Reddiar and Balaramam Reddiar from the joint family property income. Land in Chenglepattu was purchased in the name of the first defendant Ranganayakiammal, W/o Boologam Reddiar. The first defendant had no separate income of her own. While so, in the year 1983, Boologam Reddiar and Balaramam Reddiar died one after another. At that time, their mother Kakkammal was alive. After the death of both his sons, as sole male member and kartha of the family, the suit properties were managed by Rangasamy Reddiar. On 22/01/1985 Kakammal died, followed by Rangasamy Reddiar on 29/09/1994. After the demise of Rangasamy Reddiar, the suit property is in joint possession of the plaintiffs and the defendants. When the plaintiffs want to divide the properties of Rangasamy Reddiar amicable, the defendants evading and also came to know that they are trying to alienate the property. In view of the hostile attitude of the defendants, the plaintiffs have approached the Court. The sixth defendant is the purchaser of 7th item property. He is the purchaser pendent lite. Hence, he is impleaded as party defendant.
5.Written statements:
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http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 The fourth defendant filed Written Statement wherein he has stated that, the suit is highly vexatious and unsustainable both in law and as well as facts. The partition dated 05/07/1958 between Rangasamy Reddiar, Babu Reddiar and two others, is true. Subsequently, there was partition between Rangasamy Reddiar and his two sons viz Boologam Reddiar and Balaraman Reddiar. It was an oral partition effected in the presence of village elders. The same was reduced into writing (koor chit) on 10/08/1958 and acted upon. They all got separated and enjoying their respective shares separately and dealt it independently. The status of joint family properties ceased thereafter. From out of the income derived from such properties, each of them have acquired estates and improved their properties individually and separately. The properties were never again treated as joint family property. In the year 1962-63, for the sake of convenient, the enjoyment of their properties certain properties were orally exchanged between Rangasamy Reddiar and his two sons among themselves and some of the properties held by Rangasamy Reddiar were given to his two sons, since he was not able to devote much attention on personal cultivation. Some of the properties were sold by him for his personal expenditures. Rangsamy Reddiar and his two sons are separately assessed to income tax in respect of their separate holdings. Kist are paid separately. The joint 5/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 patta given in their names were later mutated in year 1981-82 and seprate patta issued in the name of Rangasamy, Boologam Reddiar and Balaraman Reddiar.
6.Though the plaintiff is well aware of these facts, had come forward with this suit, based on incorrect and misleading averments out of malice and ill will. The averment that the suit properties were jointly held as joint family properties is false and baseless. The properties at T.Nagar Chennai and at Chengalpattu which are referred in the plaint are the individual properties purchased from their respective income. The fifth defendant, who is the widow of Balaramam Reddiar is none else than the daughter of the plaintiff. They both are in collusive mode. The fifth defendant, who got properties from her husband Balaramam Reddiar is enjoying the same exclusively by leasing it out. A house property at Chennai purchased jointly in the name of the fifth defendant and Kakkammal wife of Rangasamy Reddiar is not included in the suit for partition. This falsify her own case that Rangasamy Reddiar and his two sons had no separate income of their own and all the properties were jointly enjoyed as joint family property till the death of Rangasamy Reddiar. There is a suit pending in respect of this property and there is no reference in the plaint about this property and the suit pending. To 6/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 say Rangasamy Reddiar died intestate is also false. He, during his life time with sound disposition of mind, had executed a Will on 07/08/1994 and got it registered on 11/08/1994. As per this Will, Rangasamy has left his properties to the defendants 2 to 4 and they are now in possession of those properties. In fact, the plaintiff was well provided by her father. He transferred 70 cents of land to her husband Kabirdass and put up a rice mill from out of his income. The description of properties in the suit schedule is not correct. Some of the properties not owned or possessed by any of the parties, are included.
7.Rejoinder:
The impleaded plaintiffs filed rejoinder to the written statement stating that the alleged koorchit dated 10/08/1958 is false and there was no oral partition took place as claimed by the defendants. For the purpose of agricultural income tax, separate kists receipts were obtained and as a matter of fact, the properties were always retained with Rangasamy Reddiar. The issuance of separate patta during UDR in the year 1981-82 will not amount to partition. Rangasamy Reddiar, on 10/11/1989 caused notice to the first defendant and the fifth defendant claiming share for him in the property held by the first defendant and the fifth defendant. 7/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 This includes the property at T.Nagar, which is item No.71 in this suit. The first defendant did not reply to this notice. This amounts to admission by the first defendant. The property at Giri Road, T.Nagar was not included in the suit, since Kakkammal the wife of Rangasamy Reddiar has executed a Will dated 19/01/1985 in favour the plaintiff. A suit before High Court in T.O.S.No.17/1987 is pending in respect of this Will. The Will dated 07/08/1994 alleged to have been executed by Rangasamy Reddiar is a concocted document. Rangasamy Reddiar was not keeping good health during the relevant point of time. He had no physical or mental capacity to execute a Will on 07/08/1994 or get it registered on 11/08/1994. He in fact after prolonged illness due to diabetic and blood pressure died on 29/09/1994. When Rangasamy Reddiar himself had caused notice claiming 1/3rd share in the properties, it is doubtful whether he could have executed a Will. The rice mill mentioned in the written statement was not constructed from the funds given by Rangasamy Reddiar. Land was purchased by Kabirdass and from his own fund, the rice mill was constructed. Even Rangasamy Reddiar in his lawyer notice dated 10/11/1989, did not claim any right over it. 8/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011
8.Additional written statement:
The claim of 1/3rd share by the daughter under the Amended Act 39 of 2005 is not sustainable, since the properties were divided among the sharers as early as 1958 and taken effect. Registration of the said koorchit is not necessary and there was no property available for partition under the provisions of Amended Section 6 of the Hindu Succession Act.
9.Issues:
Based on the pleadings, the trial Court framed the following issues and took up the matter for trial.
(1)Whether the plaintiffs are entitled for partition to 41/180 shares in the suit properties?
(2)Whether the alleged Koorchit dated 10.08.1958 alleged by the 4th defendant is true and valid?
(3)Whether the alleged Will dated 07.08.1994 by Rangasamy Reddiar is true and valid?
(4)Whether the house property suit Item No.71 at T.Nagar, Madras was acquired by Boologa Reddiar and Balarama Reddiar out of their separate income?
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http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 (5)Whether the suit item No.70 at Chengalpattu was acquired by the 1st defendant out of her own income?
(6)Whether the suit is not properly valued and proper court fee not paid?
(7)To what relief are the plaintiffs entitled?
10.The trial Court dismissed the suit holding that, Ex.B-1-koorchit though not registered, it was admitted in evidence, after payment of stamp duty penalty. By adducing convincing evidence both oral and document, the defendants have proved that the oral partition was entered between Rangasamy Reddiar and his two sons in the year 1958 and given effect. The kist receipts, patta, agricultural tax receipts, chitta, adangal and proceedings of the Agricultural Income Tax Officer relied by the defendants sufficiently proved the factum of partition, separate possession and the enjoyment. The trial Court upheld the validity of Ex.B-33, the registered Will of Rangasamy Reddiar dated 07/08/1994 duly proved through the attesting witness and the scribe, who were examined as DW-2 and DW-3. As far as the suit item No.71 is concerned, the trial Court, taking note of the fact that after the death of Boologam Reddiar and Balaraman Reddiar the joint owner of the said property, the legal heirs of Boologam Reddiar and Balaraman Reddiar who are 10/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 defendants 1 to 5 have divided among them the said property through a registered partition deed Ex.B-34 on 18/05/1989, so, the lower Court held that the subsequent conduct of the parties proves, the property shown as item No.71 was purchased from out of their separate income.
11.Grounds of the appeal and the submissions made by the learned Senior Counsel appearing for the appellants:-
The judgment of the trial Court is assailed by the appellants, particularly on the ground that, the trial Court erred in upholding the validity of koorchit, which is an unstamped, unregistered document in relation to transfer of immovable property. The said document is not admissible in evidence in view of Section 35 of the Indian Stamp Act and contrary to the Rulings of this Court. It is erroneous to say, payment of stamp duty penalty makes the document admissible and can be taken note for collateral purpose. By giving retrospective effect to the document Ex.B-A-1, the trial Court erred holding Ex.B-1 koorchit executed on 10/08/1958 is valid, even though the property shown in the said koorchit came to Rangasamy Reddiar under the partition deed dated 05/07/1958 and got registered only on 03/11/1958. The trial Court erred by neglecting to take note of the misdiscription 11/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 of age of Boologam Reddiar and Balaraman Reddiar in the partition deed and koorchit. In Ex.B-1 koorchit dated 10/08/1958, both were described as majors. Whereas, in Ex.A-1 registered partition deed dated 05/07/1958, they are described as minors. On the date of alleged koorchit Ex.B-1, the sons of Rangasamy Reddiar had no capacity to enter into partition. The content of the said koorchit does not disclose that there was an oral partition earlier and the same for record purpose reduced into writing as a koorchit. Document which create, declare, assign, extinguish right, title and interest over the properties, requires registration under Section 17 of the Registration Act, 1908. In the absence of registration, Ex B-1 is not admissible in evidence. The trial Court failed to consider Ex.A-3, where Rangasamy Reddiar and his two sons have jointly executed sale deed in favaour of Kabirdass on 11.08.1961 in respect of their joint family property. If there was really partition among them, there is no necessity for joint execution of Ex.A-3. The trial Court ought not to have rejected the lawyer notice Ex.A-4 dated 10/11/1989 sent by Rangasamy Reddiar seeking partition of the joint family property for want of poof. The trial Court, after holding that Ex.A-41-Will of Kakkammal is subject matter of pending TOS, ought not to have taken note of the reference about the koorchit in that document.
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12.The learned Senior Counsel appearing for the appellants heavily relying upon of the judgment of the Hon'ble Supreme Court rendered in Vineeta Sharma –vs- Rakesh Sharma and others reported in 2020(9) SCC 1, contented that, plea of oral partition or memorandum of partition, not registered one can be manufactured at any point of time. Therefore, without any contemporaneous public document such unregistered memorandum of partition needs rejection at all costs.
13.Per contra, the learned counsel for the respondents submitted that, the trial Court has extensively analysed the evidence and law on the point and had arrived at a right conclusion. No evidence placed by the plaintiff to show that the suit properties were held by the members of the family as joint family property. Contrarily, the koorchit Ex.B-1, reference of the said koorchit in Ex.A-41 a document relied by the plaintiffs themselves besides Ex.B-2 to Ex.B-32 the kist receipts, agricultural tax receipts and proceedings of the Agricultural Income Tax Officer, which are the public documents all issued consequence to the oral partition effected among Rangasamy Reddiar and his two sons. The properties held by Rangasamy Reddiar was later bequeathed to defendants 2 to 4 under the Will 13/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 dated 07/08/1994 and proved as per the law through the attesting witness and the scribe. The koorchit neither suffer any infirmity under Section 17 of the Registration Act, 1908 or Section 35 of the Indian Stamp Act, 1899. The division and transfer of property under Ex.B-1 was not with third parties, but within the parties who had existing right in the property. The observation made by the Hon'ble Supreme Court in Vineeta Sharma case does not apply to this case, since the koorchit though unregistered it was acted upon by all the parties concern followed by public documents. Therefore, there is no merit in the case of the appellants.
14.The learned counsel for the respondents submitted that the vexatious suit initially filed with false claim suppressing vital facts seeking 41/180 shares, later by way of rejoinder, improved their case with new facts, subsequently amended the relief seeking 1/3rd share. The conduct of the plaintiff, contrary to the facts, improving the case as the law change and based on the interpretation of courts has to be discouraged by dismissing it with exemplary costs.
15.Heard the learned Senior Counsel appearing for the appellants and the 14/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 learned counsel appearing for respondents 1 to 4. Perused the records.
16.Point to be determined by this Court is, Whether the trial Court right in concluding that the suit properties are not the joint family properties for division under Section 6 of the Hindu Succession Act, 1956 and whether there is any legal or factual error committed by the trial Court in upholding the unregistered koorchit Ex.B1 valid and acted upon?
17.This is a classic case. How Section 6 of Hindu Succession Act, 1956 batter by conflicting judicial pronouncements causing turmoil in the Hindu Mitakshara Family. This appeal is directed against the judgment and decree of the trial Court in the suit for partition filed by the sister against the legal heirs of her deceased brothers. As in most of the Hindu Mitakshara family of yesteryears, the plaintiff's daughter was given marriage to one of her brothers and she is the 5 th defendant in the suit, but sails with her mother, The plaintiff, leaving the widow of the other brother and her children to defend for themselves. All these happened, after the death of the father, mother and brothers. The plaintiffs cannot be blamed, since the Hindu Law of Succession has progressed by way of amendments and 15/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 judicial prouncements with its own merits and demerits which has enboldened her to file the suit initially on the premises that the properties were joint family property accurred from the income derived from the property given to the father Rangasamy Reddiar under the partition deed (Ex.A1) dated 05.07.1958. Later, claiming the property as co-parcenary property and she is entitled to get equal share as other male members of the family. When the suit was laid in the year 1994, she fall back on the principle of notional partition and sought for 41/180 shares in the suit properties, which are listed 72 in numbers in the suit schedule. The defendants contested the suit on the ground that, the properties are not joint family property. It became the individual property when the partition entered among the family members (i) Babu Reddiar, (ii) Ramasamy Reddiar, who is the son of Baby Reddiar, (iii) Govinda Redidary, (iv)Janaki Rama Reddiar,
(v)Krishnasamy Reddiar, (vi)Muthumalla Reddiar, (vii)Rangasamy Reddiar, (viii) Boologasamy Reddiar, (ix)Balarama Reddiar on 05.07.1958. Soon thereafter, the family arrangement by way of koorchit was effected by way Rangasamy Reddiar and his sons Boologam Reddiar and Balaraman Reddiar. The said koorchit was effected and acted upon. The revenue records were mutated and separate patta was issued to them and the parties are enjoying the property exclusively as their 16/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 individual property and acquiring new property.
18.The contention of the appellant before the trial Court was that there was no partition, till the death of Rangasamy, who is a Kartha of the family. The entire suit properties were held by him on behalf of the family members. Infact, he issued notice to Ranganayakiammal/the first defendant, Malliga/the fifth defendant and one Venkatesan seeking division of the suit properties claiming that the suit properties are joint family properties. His notice nullify the contention of the defendants that Rangasamy Reddiar and his sons got separated in the 1958 itself as per the koorchit.
19.The character of the suit property was held to be the individual property of the respective parties by the trial Court based on the revenue documents and other evidence. The said finding of the trial Court is assailed by the appellants on the ground that the unregistered koorchit cannot be looked upon. In support of this submission, the learned Senior Counsel appearing for the appellants rely upon the recent judgments of the Hon'ble Supreme Court, rendered in Vineeta sharma v. Rakesh Sharma and others reported in (2020) 9 SCC 1, pointing out the 17/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 relevant portion in the said judgment, contented that, the after Amendment of Section 6 and the recent jdugment of the Hon'ble Surpeme Court, which has answered the order of reference to settle the conflecting view expressed in various Courts in India, the judgement of the Trial Court is liable to be set aside. The learned counsel also submitted that the intendment of Section 6 of the Act is only to accept the genuine partition, that might have taken place under the prevailing law and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The learned Senior Counsel also relied on the judgment of this Court reported in Arogya Sophine v. Arogyasami and another reported in 2020-5- L.W.716, to buttress the point that, the family arrangement leading to the partition, without registration of the document, is inadmissible. On examining the nature of the property now sought to be divided, first it is necessary to find out, whether the property is obstructed or unobstructed heritage. If it is an unobstructed heritage, the same shall devolve by survivorship. If it is an obstructed heritage, the devolution shall be by Succession as per Section 8 of the Hindu Succession Act.
20.To asertain, whether the property under dispute is obstructed heritage or 18/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 unobstructed heritage, the following observation of the Hon'ble Supreme Court in Vineet Sharma case cited supra, is relevant and the same is extracted belw:-
“43. In Mitakshara coparcenary, there is unobstructed heritage, i.e., apratibandha daya and obstructed heritage i.e., sapratibandha daya. When right is created by birth is called unobstructed heritage. At the same time, the birthright is acquired in the property of the father, grandfather, or great grandfather. In case a coparcener dies without leaving a male issue, right is acquired not by birth, but by virtue of there being no male issue is called obstructed heritage. It is obstructed because the accrual of right to it is obstructed by the owner's existence. It is only on his death that obstructed heritage takes place. Mulla on Hindu Law has discussed the concept thus:
“216. Obstructed and unobstructed heritage. – Mitakshara divides property into two classes, namely, apratibandha daya or unobstructed heritage, and sapratibandha daya or obstructed heritage.
(1) Property in which a person acquires an interest by birth is called unobstructed heritage, because the accrual of the right to it is not obstructed by the existence of the owner.
Thus, property inherited by a Hindu from his father, father's father, or father's father's father, but not from his maternal grandfather, 1 is unobstructed heritage as regards his own male issue, i.e., his son, grandson, and great-grandson. 2 His male issues acquire an interest in it from the moment of their birth. Their right to it arises from the mere fact of their birth in the family, and they become coparceners with their paternal ancestor in such property immediately on their birth, and in such cases ancestral property is unobstructed heritage.
Property, the right to which accrues not by birth but on the death of the last owner without leaving a male issue, is called obstructed heritage. It is called obstructed, because the accrual of right to it is obstructed by the existence of the owner.
Thus, property which devolves on parents, brothers, nephews, uncles, etc. upon the death of the last owner, is obstructed heritage. These relations do not take a vested interest in the property by birth. Their right to it arises for the first time on the death of the owner. Until then, they have 19/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 a mere spes successionis, or a bare chance of succession to the property, contingent upon their surviving the owner. (2)Unobstructed heritage devolves by survivorship; obstructed heritage, by succession. There are, however, some cases in which obstructed heritage is also passed by survivorship.”
44. It is apparent that unobstructed heritage takes place by birth, and the obstructed heritage takes place after the death of the owner. It is significant to note that under section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner's death. Thus, Coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6. In Ref. Section 6 of the Act of 1956.”
21.In the instant case, the partition took place between the co-parceners under Ex.A1 on 05.07.1958. The Co-parceners have decided to divide the property among themselves and also acted upon it. The assets of the family has been fragmented and the trapping of joint family property had lost as far as the family of Rangasamy Reddiar and others. For a short period i.e. till the Koorchit Ex.B1 dated 10.08.1958, Rangasamy Reddiar and his two sons Boologam Reddiar and Balaramam Reddiar were holding the property as joint family property but thereafter, they have got separated.
22.It is contended by the learned Senior Counsel appearing for the appellants that the recital found in Ex.A1 does not speak about the past division, 20/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 but it records the division effected on the date of executing the koorchit. Therefore, this document ought to have been registered. Since it has not been registered as per Sections 17 read with Section 49 of the Registration Act, it has to be rejected. The contra case of the respondents is that, there was an oral partition in the presence of the village elders and that was reduced into writing on 10.08.1958 and the parties to the document have got separated and acted upon.
23.This Court finds no force in the submission of the learned Senior Counsel for the appellant. The recital in Ex.A1 though not specifically worded that it is recording of past division the mediation by village elders and mutual acceptance is mentioned. No such mutual division could be arrived without past arrangement.
24.Reference to explation found in Section 6 (5) of the Hindu Succession Act, 1956 has been amended and the interpretation is given by the Hon'ble Supreme Court in Vineet Sharma case.The learned counsel appearing for the appellants submitted that any partition effected before 20.12.2004 should have been through registered partition deed or partition effected by a decree of the Court. In the present case, the partition admittedly not through a registered deed 21/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 and not through the decree of the Court. Therefore, the plaintiff though a female member of the family, after amendment, is entitled to inherit the property as the co- parcener.
25.This submission of the learned counsel appearing for the appellants though is very impressive and appears to be correct on the first reading, it is not intune with the catena of judgments rendered by this Court and not also intune with the observation made in Vineeta Sharma case. To start with, the concept of oral partition, the division through koorchit is well established mode of partition among the Mitakshara Hindu family. The law has accepted and recognised such partition. Section 6(1) as well as Section 6(5) with explanation has been incorporated in the Amended Act not with an intention to reopen the case of oral partition and family settlement, but to enable the female decendants to get a share in the co-parcenary property, if it is kept unobstructed.
26.The Hon'ble Supreme Court, after much deliberation and reference and reverance to the earlier judgment, while answering the reference regarding the oral partition, has held as below:-
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http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 “137.5.In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a Court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sin effected) by a decree of a Court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”
27.In the instant case, even if for a moment, the koorchit Ex.B1 kept aside, the division of the property among the father and two sons in the year 1958 is well reflected in their subsequent conduct in the public document. The trial Court has rightly pointed out that the income tax receipts, the proceedings of the income tax officer, kist receipt, chitta and adangal, the patta issued individually in the name of Rangasamy Reddiar, his sons Boologam Reddiar and Balaramam Reddiar clearly prove the fact that there was a partition between them and acted upon. The partition supported by public documents. It is pertinent to note that the plaintiffs cannot plead that there was no oral partition at all followed by koorchit Ex.B1 because one of the witnesses to the said koorchit is none other than her own husband Kabirdass and Balaramam Reddiar party to the koorchit is not only her brother, he is also the husband of her daughter (son-in-law). 23/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011
28.Having accepted the said division and been living all along separately, after the death of father and mother and two brothers, she has come out with the case that the property was held as a joint family property and she has a right in it as a co-parcener, in view of the amendment. More particularly, when the defendants all joint together and alienated the suit item No.71 on 15.08.1990 in which her own daughter is one of the signatory, the plaintiff cannot say that the said document is a subsequent document to the suit and therefore, it will not bind her. The joint execution of sale deed by defendants 1 to 5 is only the consequencial out come of the intention of the parties all along in respect of the suit property. Therefore, the case of the appellants that she as a co-parcener have a share in the suit property, is not supported by law, evidence and by her own conduct. Unless the suit property carry the trapping of co-parcenary property, such plea is not sustainable.
29.Coming to the estate of the deceased father Rangasamy Reddiar, who died intestate the property, could have devolved upon all his class I legal heirs as per Succession under Section 8 of the Act, if he had died intestate. But, in this case, Rangasamy Reddiar has executed a Will in favour of defendants 2 to 4. That 24/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 Will was duly registered and execution has been proved through the witness and the scribe. These witnesses could not be impeached in any manner by the appellants during the cross examination. Though it is contended that before his death, Rangasamy Reddiar was not keeping good health and he was not in fit state of mind, there is no evidence to substantiate the same. There is no suspicious circumstances over the execution of the said Will. The defendants 2 to 4 are only surviving direct descendants. Rangasamy Reddiar has bequeathed his property to those defendants and no deviation could be inferred in the said bequeath. The appellants herein neither under the pre-amendment Act nor under post- Amendment Act are entitled to seek share, as per Section 6 of the Hindu Succession Act, since the suit schedule properties after 1958 were never hold joint family property or as a co-parcenary property she is not entitled to seek right under Section 6 of the Act or under Section 8 of the Act since Rangasamy Reddiar has bequeathed the property by way of Will namely, Ex.B1.
30.Therefore, looking from any angle, the plaintiffs can have no right in the suit property. The trial Court has rightly dismissed the suit and the same is confirmed in this appeal.
25/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011
31.In the result, this Appeal Suit is dismissed. The judgment and decree of the trial Court viz., The Additional District Court, Fast Track Court No.1, Chengalpattu dated 15.09.2010 made in O.S.No.26 of 2006 is hereby confirmed. No order as to costs. Consequently, connected Miscellaneous Petition is closed.
04.03.2021 Index:yes speaking order/non-speaking order ari To:
The Additional District Judge, I Fast Track Court, Chengalpet.
DR.G.JAYACHANDRAN,J.
ari 26/27 http://www.judis.nic.in A.S.No.241 of 2011 and M.P.No.1 of 2011 Pre-delivery judgment made in A.S.No.241 of 2011 and M.P.No.1 of 2011 04.03.2021 27/27 http://www.judis.nic.in