Madras High Court
Minor A.Namrutha vs P.V.Manoharan on 19 September, 2018
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON: 06.07.2018 PRONOUNCED ON: 19.09.2018 DATED: 19.09.2018 CORAM THE HONOURABLE MR.JUSTICE S.S.SUNDAR Second Appeal(MD)No.406 of 2013 Minor A.Namrutha represented by her mother and guardian B.Amutha :Appellant -Vs- 1.P.V.Manoharan 2.Velusamy 3.Sasikala 4.N.Mahalingam 5.K.Dharmalingam 6.Nallusamy (Died) 7.Kanagasundaram 8.Saravanan 9.Perumal 10.Selamabana : Respondents Prayer: Second Appeal filed under Section 100 of the Code of the Civil Procedure, to set aside the decree and judgment dated 10.08.2012 of the learned Additional Subordinate Judge, Karur in A.S.No.50 of 2011 partly confirming the judgment and decree dated 25.11.2010 of the Additional District Munsif, Karur in O.S.No.826 of 2005 insofar as items 2 to 11 of the suit properties are concerned. !For Appellant :Mr.Raguvaran Gopalan ^For R1 and R2 :Mr.E.K.Kumaresan For R3 :Mr.N.Sathesh Kumar For R4 :Mr.S.Anand Chanrasekaran for M/s.Sarvabhauman Associates :JUDGMENT
The plaintiff, who is a minor, represented by her mother in the suit in O.S.No.826 of 2005 on the file of the Additional District Munsif Court, Karur, is the sole appellant in this appeal.
2.The only question that arises for consideration in this appeal is whether the minor plaintiff, who was in the womb, is entitled to reopen the partition entered into between other coparcener, when she was in the womb, on the ground that the partition is unjustified, unequal, unfair and detrimental to the interest of the plaintiff.
3.Though the suit was filed with a lengthy plaint, having regard to the nature of dispute in this second appeal, the following facts are relevant:
3.1.The appellant filed the suit for a declaration that the partition deed dated 03.12.2004 executed by defendants 1 and 2 is void and not binding upon the plaintiff and consequently any documents or instruments or deed executed by defendants based on the partition deed are not binding upon the plaintiff's share. The plaintiff also prayed for granting a decree for partition dividing the suit properties into four equal shares and to allot one share to the plaintiff, and for consequential permanent injunction restraining the defendants from alienating or encumbering the suit properties affecting the right of the plaintiff.
3.2.The suit properties are described as items 1 to 11. The plaintiff is the daughter of first defendant. First defendant is the son of the second defendant. Third defendant is the sister of second defendant. Defendants 4 and 5 in the suit are the purchasers of the property from the second defendant on 01.07.2005. The plaintiff's mother is a legally wedded wife of the first defendant and their marriage was solemnized on 03.03.2004. The plaintiff was born on 26.03.2005. However, there was a partition between the first defendant and the second defendant on 03.12.2004 under a registered partition deed vide document No.1294/2004 registered before the Sub-Registrar Office, Velliynai.
3.3.The case of the plaintiff is that the first defendant married her mother on 03.03.2004 and due to wedlock, she was born on 26.03.2005. It is stated that her father, the first defendant, has driven her mother from the matrimonial home on 01.11.2004, while she was carrying her and that there was some mediation, due to which, her mother was taken back by the first defendant. But, again, it was stated that she was sent out of the matrimonial house by demanding dowry. Though the plaint contains several allegations against the first defendant they are not relevant. It is stated that the suit properties are the ancestral properties of the defendants and that though the plaintiff was a minor, is entitled to , share in all the suit properties. originally the suit was filed for partition impleading only defendants 1 and 2. Later, after the written statement was filed disclosing the partition deed dated 03.12.2004 and the alienation made in favour defendants 4 and 5, the plaint was amended. The third defendant is the sister of second defendant and a plea was raised in the written statement by stating that the suit is bad for non-joinder of necessary parties. Hence, the plaintiff impleaded the defendants 3 to 5 and others. It is stated in the plaint that on the alleged date of partition, the plaintiff has a distinct and separate interest over the suit property and that in view of the strained relationship between the plaintiff's mother and defendants 1 and 2, the document of partition has been effected between defendants 1 and 2 with an intention to defeat and defraud the plaintiff's share. The document of partition was described as one void ab initio and not binding the plaintiff.
4.Separate written statement was filed by the first defendant alleging that the first defendant was allotted only the first item of the suit property and that the other items were allotted to the second defendant in the said partition deed. The first defendant also pleaded that the properties are burdened with debts. Since the suit properties were already partitioned between the first defendant and second defendant, even before the brith of the plaintiff, it is stated in the written statement filed by the first defendant that the defendant has no right or title or interest over the suit items 2 to 9 and that therefore the plaintiff is not entitled to any share in the suit properties. The first defendant also stated that 10th item of the suit property was sold by the second defendant in favour of defendants 4 and 5 for valuable consideration and that the plaintiff cannot question the same.
5.The second defendant also filed an independent written statement claiming exclusive right over the suit items 2 to 10. Though the second defendant questioned the value of the suit properties and questioned the jurisdiction of District Munsif Court, these issues were not pressed before this Court. Similarly, one of the pleas raised in the written statement is that the Court fee paid by the plaintiff under Section 37(2) of Tamil Nadu Court Fees and Suit Valuation Act, 1955, is not proper and stated that the plaintiff is out of possession and that therefore, she ought to have filed the suit under Section 37(1) of Tamil Nadu Court Fees and Suit Valuation Act, 1955. This issue though was found in favour of the plaintiff, the respondents in this appeal have not argued to sustain the plea raised in the written statement. The third defendant in the suit admitted that the suit properties are the ancestral property of the defendants and that she is also in joint possession and enjoyment of the suit properties. It is her case that she is also a coparcener by virtue of Tamil Nadu Act 1 of 1989, and that she is entitled to equal share by virtue of the amendment to Hindu Succession Act, 2005. The third defendant claimed 1/3 share over the suit properties. The defendants 4 and 5 have also filed independent written statement disputing the right of plaintiff who seeks partition a partition that was effected between the defendants 1 and 2.
6.The trial Court, after framing necessary issues, found in favour of the plaintiff with regard to the jurisdiction of the District Munsif Court to try the suit and the plea regarding non-joinder of necessary parties.
However, on the issue whether the plaintiff is entitled to seek partition of 1/4 share in all the suit properties, found that the plaintiff cannot challenge the partition between her father and grandfather under Ex-A3, dated 03.12.2004. As regards the share of third defendant, the trial Court negatived her claim mainly on the ground that she did not challenge the partition deed between the defendants 1 and 2 and that she has no cause of action to seek partition. Since the suit was dismissed in toto by the trial Court, the plaintiff preferred an appeal in A.S.No.50 of 2011 on the file of the Additional Sub Court, Karur.
7.The appellate Court, after considering several precedents, held that though a child in the womb is entitled for share in the ancestral property and entitled to question the alienation made by father, the plaintiff is not entitled to any share in the property allotted to the second defendant under Ex-A3. However, the appellate Court held that the plaintiff is entitled to 1/4 share in the property allotted to the first defendant in the partition under Ex-A3, namely, the first item of the suit property. Thus the judgment and decree of the trial Court was modified only to the extend of 1/2 share in suit first item. Aggrieved by the judgment and decree of the lower appellate Court, the above second appeal has been filed.
8.The learned Counsel for the appellant raised the following substantial questions of law:
?1.Whether the alleged partition deed dated 03.12.2004 marked as Ex-A3 effected between the 1st and 2nd defendants is unjust and unfair and detrimental to the interests of the plaintiff?
2.Whether the minor plaintiff is entitled to reopen the partition alleged to have been executed between the 1st and 2nd defendants dated 03.12.2004 and marked as Ex-A3 as it is not done in good faith and in a bona fide manner keeping into account the interest of the minor plaintiff?
3.Whether the alleged partition deed dated 03.12.2004 marked as Ex-A3 is only to defraud the plaintiff who was in the womb of her mother on the date of the partition is void and not binding on the plaintiff?
4.Whether the theory that the property allotted to the grandfather under a partition deed dated 03.12.2004 marked as Ex-A3 is his absolute property can be stretched to such an extent so as to deprive the minor plaintiff, a share in the property when the partition effected is unfair, unjust, unequal and detrimental to the interest of the plaintiff?
5.Whether the defendants 1 and 2 are entitled to enter into the partition dated 03.12.2004 under Ex-A3 by excluding the plaintiff in the womb, who is a coparcener in her own right??
9.The learned Counsel for the appellant submitted that the partition deed effected between the members of the joint family can be reopened at the instance of the minor coparcener, if it is obtained by fraud or by misrepresentation or on the ground of unequal partition. He further submitted that the Courts below have categorically found that the partition deed under Ex-A3, is unequal and the first defendant was allotted only a property worth of Rs.300/- as against the property allotted to the second defendant, which was worth several lakhs. It is not in dispute that the first defendant was allotted only 1st item of the suit property, namely, an extent of 1 acre 1 + cents in S.F.No.644 in Mookkanankurichi Village, Karur Taluk, whereas, substantial properties have been allotted in favour of the second defendant. The fact that the partition is unequal is not in dispute. The explanation offered by the second defendant in the written statement to give lesser property to the first defendant is that the first defendant has received several amounts from the second defendant and that the first defendant was brought up by the second defendant spending huge money apart from giving a sum of Rs.6,00,000/- by cash towards his share prior to the partition. However, no issue was framed by the Courts below or no evidence was let in to prove the case of the second defendant to justify the unequal partition.
10.The lower appellate Court has accepted the case of the plaintiff regarding the unfair and inequal partition since under Ex-A3, the second defendant, namely, the grandfather of the plaintiff was allotted 12 items of properties valued at Rs.2,68,000/- and the first defendant, the father of the plaintiff was allotted only the first item of the suit property, worth of about Rs.300/- However, the question whether the plaintiff can challenge and reopen the partition effected between her father and grandfather, was answered in the negative, denying the relief to the plaintiff. The lower appellate Court, while dealing with several judgments, has admitted the position that the son / daughter, after the institution of the suit, is entitled to question the alienation made by the father while he or she was in womb and that the suit filed at the instance of such child in womb seeking partition declaring that the alienation is not valid is maintainable. However, the Lower Appellate Court held that a son begotten as well as born after severance of joint status is not entitled to have the partition reopened but only entitled to succeed to the father's share.
11.The learned Counsel for the appellant relied upon a judgment of Honourable Supreme Court in the case of Rathinam Chettiar vs S.M.Kuppusamy Chettiar and others, reported in 1976 SCC (1) 214, wherein, the position that a partition effected between the members of a Hindu family can be reopened at the instance of minor, if the partition deed was obtained by fraud, coercion, misrepresentation or by undue influence. The lower appellate Court considered the legal issue in the light of various provisions of Hindu Succession Act and Transfer of Property Act and held that the plaintiff is not entitled to any share in the properties allotted to the second defendant under Ex-A3, partition deed on the ground that if a share is allotted to the father, a child in womb is not entitled to reopen the partition, as there is severance of the joint status in the family members. The lower appellate Court, mixed up several principals and relied upon precedents without reference to the context in which they were laid, came to a wrong conclusion. In the case of Rathinam Chettiar vs S.M.Kuppusamy Chettiar and others, reported in 1976 SCC (1) 214, the Honourable Supreme Court considered the scope of reopening a partition and the propositions laid down by the Honourable Supreme Court are extracted below:
?.....19.Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge:
(1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.
(2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparcener it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.
(3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.
(4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times. If it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair........?
12.The judgment of the Honourable Supreme Court in the case of Rathinam Chettiar was also followed by the Honourable Supreme Court in another case of Smt.Sukhrani and others vs. Hari Shanker and others reported in (1979)-2-SCC- 463, in the following manner:
?..........7.The only question therefore, requiring our consideration is whether the partition in so far as it related to the business could be reopened on the sole ground that it was unfair and prejudicial to the interest of the minor, when there was no fraud or misrepresentation. In N. R. Raghavachariar's Hindu Law (5th Edn.), the learned author has said at page 428:
"Ordinarily where a partition has been entered into by adult members of a joint family, each of them having minor sons, the minors are represented by their respective fathers in the partition, and it is not open to any of them to challenge the validity of the partition arrangement except where it is alleged and provided that there has been fraud vitiating the transaction and resulting in inequity and obviously smaller share having been allotted to a particular adult member who represented his minor son. The mere fact that outwardly or apparently the shares appear to be unequal is no ground for reopening the same at the instance of the minor sons of an adult member who was a party to the partition, because in a partition arrangement so many factors enter into the reckoning with reference to the proper shares to be allotted and unless it can be distinctly shown that there had been an element of overreaching or fraud taking advantage of the ignorance or incapacity or other disqualification of a particular member, the partition should rarely be reopened".
8.All that we need say is that the learned author has not referred to any decided case in support of what he has said, but the matter is now no longer res integra. In Ratnam Chettiar & Ors. v. S. M. Kuppuswami Chettiar & Ors. (supra) an identical question arose and it was held that even though there was no fraud misrepresentation or undue influence, a partition could be reopened at the instance of a minor coparcener, despite the fact that the branch was represented by his father at the partition, if the partition was unfair or prejudicial to the interest of the minor. It was also held that the entire partition need not be reopened if the partition was unfair in regard to a distinct and separable part of the scheme of partition. In such an event the reopening of the partition could be suitably circumscribed. In the light of the principles laid down in Ratnam Chettiar & Ors. v. S. M. Kuppuswami Chettiar & Ors. (supra) this appeal is dismissed with costs.?
13.The learned Counsel for the appellant further relied upon a judgment of Honourable Supreme Court in the case of Guramma Bhratar Chanbasappa Deshmukh and another vs Malappa reported in 1964-SCR(4)497, wherein, the Honourable Supreme Court has held as follows:
" . . . . . . . . The relevant principles are well settled. A coparcener, whether he is natural born or adopted into the family, acquires an interest by birth or adoption, as the case may be, in the ancestral property of the family. A managing member of the family has power to alienate for value joint family property either for family necessity or for the benefit of the estate. An alienation can also be made by a managing member with the consent of all the coparceners of the family. The sole surviving member of a coparcenary has an absolute power to alienate the family property, as at the time of alienation there is no other member who has joint interest in the family. If another member was in existence or in the womb of his mother at the time of the alienation, the power of the manager was circumscribed as aforesaid and his alienation would be voidable at the instance of the existing member or the member who was in the womb but was subsequently born, as the case may be, unless it was made for purposes binding on the member of the family or the existing member consented to it or the subsequently born member ratified it after he attained majority. If another member was conceived in the family or inducted therein by adoption before such consent or ratification, his right to avoid the alienation will not be affected: See Avdesh Kumar v. Zakaul Hassain, Chandramani v. Jambeswara; and Bhagwat Prasad Bahidar v. Debichand Bogra. In the instant case the impugned alienations were made at a time when the 4th defendant was in the womb i.e. At a time when Chanabasappa had only a limited right of disposal over the joint family property. The 4th defendant being in the womb, he could not obviously give his consent, nor ratify the alienations before the adoption of the 3rd defendant took place and he was inducted into the family. If the alienations were made by the father for a purpose not binding on the estate, they would be voidable at the instance of the 3rd or 4th defendant."
14.The learned Counsel for respondent relied upon a judgment of a Honourable Division Bench of Karnataka High Court in the case of Sri M.S.Subbukrishna and others vs Smt.Parvathi and another reported in ILR-2007- KAR-3939, wherein, it has been held as follows:
?......16. From a reading of Section 20 of the Act and the law laid down in different decisions referred to above, in our considered view, the following principles will emerge:
i) A child in the womb is entitled to for a share in coparcenary property of an undivided Hindu joint family.
ii) The child is entitled for a share in the joint family property when born alive and not otherwise.
iii) On behalf of the child in the womb no partition suit is maintainable.
iv) In case of a partition of the joint family property by the father amongst his sons, even a son born after a partition arrangement can challenge the partition if the father has not retained separate share for himself exclusively.
v) In a partition if a share is allotted to the father, a son begotten or born after the partition is not entitled to have the partition reopened and to claim redistribution of the shares. But a child begotten after partition is entitled to succeed to the father's share and to his separate or self-acquired property to the exclusion of divided sons........?
15.Right of unborn child in womb to question the alienation made by father is recognised and well accepted. The child in the womb was recognised as a minor coparcener in several precedents, except the position that a child in womb cannot seek partition and a suit is not maintainable by child in womb through mother. The institution of a suit for partition by a member of a joint family or a partition effects severance of the joint status of the family. As regards right of a child in the womb, the position is different as right accrues to a child in the womb, if she or he is born alive. Section 20 of the Hindu Succession Act,,, recognises the right of a child in the womb. Section 20 of the Hindu Succession Act reads as follows:
?20.Right of child in womb.
A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate. ?
16.Thus it is accepted that by fiction the right of the unborn child in the womb, if he or she born alive is treated as actually born for the purpose of conferring on him/her benefits of inheritance. Similarly, Section 13 r/w Section 20 of Transfer of Property Act, 1888, recognises a transfer of a property for the benefit of a child in womb. Section 13 r/w Section 20 of the Act recognises the interest for the benefit of unborn person. Therefore, a child in the mother's womb is deemed to be in existence for the purpose of inheritance. Hence the child in the womb has a right to challenge any transaction, which affects the interest of the child if it is born. The first question of law though factual, it is answered in favour of appellant as the Lower Appellate Court itself has concluded t hat the partition is inequal. Thus, by considering the principles of Hindu Succession Act regarding inheritance and succession and the rights of a child in womb to challenge the alienation, this Court considers the substantial questions of law.
17.The second substantial question of law is answered in favour of the appellant by holding that the minor child in this case is entitled to reopen the partition alleged to have been executed between the first and second defendants on 03.12.2004 under Ex-A3. Though the said partition was executed when the appellant was a child in the womb, the partition under Ex-A3 is unequal and the plaintiff is entitled to seek partition of her , share in all the properties.
18.The Judgement of Division Bench of Karnataka High Court is, in turn with the judgment by Orissa High Court in the case of Jagat Krishna Das and another vs Ajit Kumar Das and others, reported in AIR-1964-ORISSA-75, wherein, it is held that the institution of a partition suit by a member of a joint family effects severance of joint status in the family. If in such a suit a share is allotted to the father, a son begotten or born after the institution of the partition suit, is not entitled to have the partition reopened and to claim redistribution of shares even if he or she born before the completion of the partition by actual division of estate. In this case, the facts are not in dispute that father has taken a property towards his share, ignoring the rights of child in womb and therefore, the partition, as such, is inequal and entered into only to defeat the rights of the plaintiff to claim any share. The partition is therefore voidable and the suit filed by the plaintiff for declaration that the said partition deed is void is maintainable and the plaintiff is entitled to succeed. The plaintiff is entitled to get a declaration and get partition of her , share in all the suit properties. As a result, the above second appeal is allowed and the judgment and decree dated 10.08.2012 passed by the Additional Subordinate Judge, Karur in A.S.No.50 of 2011 confirming the judgment and decree dated 25.11.2010 of the Additional District Munsif, Karur in O.S.No.826 of 2005 is set aside and the plaintiff is entitled to 1/4 share in all the suit properties. The suit in O.S.No. 826 of 2005 stands decreed. No costs.
To
1.The Additional Subordinate Judge, Karur.
2.The Additional District Munsif, Karur.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.