Madras High Court
R. Nallammal vs R. Lakshmi on 6 September, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 06.09.2018
RESERVED ON : 28.08.2018
DELIVERED ON : 06.09.2018
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
A.S. (MD) No.38 of 2011
1. R. Nallammal
2. R. Ganesammal alias Periya Nayagi
3. Podumani alias Podumponnu .. Appellants
Vs.
1. R. Lakshmi
2. R. Patchayammal
3. N. Natchayee
4. K. Muhoortham alias Muthammal
5. K. Nataraja Udayar
6. D. Ramalingam
7. R. Patchaimuthu Udayar
8. R. Murugan Chettiyar (Died)
9. R. Sundar Raj
10. P. Nallammal
11. M. Ramu Udayar
12. D. Shyamala Varnam
13. R. Ramachandran
14. M. Patchamuthu Udayar
15. D. Karuppiah
16. M. Samyvel
17. Rukmani
18. Ramanathan
19. Shanmugam
20. Rajendran .. Respondents
PRAYER : This Appeal is filed under Section 96 of Civil Procedure Code,
against the Judgment and Decree dated 27.04.2010 made in O.S.No.148 of 2004
on the file of the learned Principal District Judge, Pudukottai.
!For Appellants : Mr. P. Thiagarajan
^For Respondent -1 : Mr.K. Baalasundharam
For Respondent-10 : No Appearance
For Respondents-2 to 9,
R-11 & R-20 : Given up.
:JUDGMENT
The appellants herein were the defendants in O.S. No.148 of 2004 on the file of the learned Principal District Judge, Pudukkottai. O.S.No.148 of 2004 had been filed by the first respondent herein R.Lakshmi, seeking partition and separate possession of 6/15th share in the suit schedule 'A' 'B' 'C' properties.
2. The suit had been filed against twenty two defendants. The plaintiff was the daughter of Thiruvenkata Udayar. Thiruvenkata Udayar died in the year 1979. The mother of the plaintiff Thiamuthu died in the year 1986. Thiruvenkata Udayar and Thiamuthu had one son and four daughters. The son Ramasamy died in the year 1988. The first defendant R.Nallammal is the wife of Ramasamy and the second and third defendants are her daughters. The fourth, fifth and sixth defendants are also the daughters of Thiruvenkata Udayar and Thiamuthu. They are sisters of the plaintiff. The other defendants-7 to 18 are purchasers of various portions of the suit properties. Among them, the tenth defendant died during the pendency of the suit and his legal representatives had been impleaded as defendants-19 to 22.
3. According to the plaintiff, the suit schedule 'A' 'B' 'C' properties were the joint family properties of Thiruvenkata Udayar. The plaintiff was married in the year 1992. 'A' schedule property was purchased on 10.08.1959. 'B' schedule property was settled in the name of Thiruvenkata Udayar by his father on 06.04.1957. From the joint family income, 'A' and 'B' schedule properties were purchased. 'C' schedule property was purchased in the name of son of Thiruvenkata Udayar by name Ramasamy Udayar and other relation Ramalingam Udayar on 29.11.1980.
4. In the plaint, the plaintiff claimed that all the properties are joint family properties. Consequently, as a daughter, she claimed she was entitled to her share in the joint family properties in view of the amendment of the Hindu Succession Act introduced by the Tamil Nadu Government in 1989. Since she was married in the year 1992, after the introduction of the amendment, she claimed 6/15th share in each one of the three suit properties. She also stated that she had earlier filed a suit in O.S No.320 of 1995 which was dismissed for default. Application in I.A. No.526 of 2003 filed to restore the suit was also dismissed. However, claiming that since the suit was dismissed without any adjudication on the issues and hence it would not act as resjudicata, the present suit had been filed, seeking partition and separate possession of 6/15th undivided share in the 'A' 'B' 'C' schedule properties.
5. Among the purchaser/defendants, the twelfth defendant P. Nallammal alone filed a written statement. She claimed to have purchased a portion of the 'B' schedule property for adequate consideration on 02.12.2002. She claimed to be in possession of the said property. She sought dismissal of the suit.
6. The first defendant filed a written statement challenging the claim for partition. She was the widow of Ramasamy, the son of the family. She denied that 'A' schedule property was a joint family property of the Thiruvenkata Udayar. She also stated that the plaintiff has to prove that 'B' schedule property was settled to Thiruvenkata Udayar. She further denied that 'C' schedule property was purchased from the joint family income. She further stated that since Thiruvenkata Udayar died in the year 1979, the plaintiff was not entitled to the benefit under the amendment introduced in 1989 to the Hindu Succession Act. She further stated that her husband Ramasamy was the absolute owner of the properties on the death of Thiruvenkata Udayar and consequently stated that she had a right to deal with the properties. She stated that the suit should be dismissed.
7. On the basis of the above pleadings, the learned Principal District Judge, Pudukkottai framed the following issues for consideration;
1.Whether the plaintiff is entitled to 6/15th share in the suit schedule properties?
2.Whether the sale deed executed by the defendants-1, 2 & 3 are legal and valid?
3.Whether the suit is barred by resjudicata in view of the earlier suit in O.S.No.320 of 1995?
4.Whether the amendment act in the year 1989 would apply to the plaintiff eventhough Thiruvenkata Udayar died in the year 1979?
5.Whether the twelfth defendant is entitled to separate possession of the property purchased by her?
6.To what reliefs the plaintiff is entitled to?
8. During trial, the plaintiff was examined as P.W.1 and an independent witness Thirugaanam was examined as P.W.2. On the side of the defendants, the first defendant was examined as D.W.1 and the twelfth defendant was examined as D.W.2.
9. The plaintiff marked Ex.A.1 to Ex.A.21. Ex.A.1 was the sale deed dated 10.08.1959 in favour of Thiruvenkata Udayar. Ex.A.5 to Ex.A.13 are the sale deeds with respect to the suit schedule properties executed by defendants-1, 2 & 3 to the other defendants. Ex.A.14 is the settlement deed in the name of Thiruvenkata Udayar dated 06.04.1957 with respect to the 'B' schedule properties. Ex.A.15 is the sale deed in the name of Ramasamy and Ramalingam dated 29.11.1980 with respect to 'C' schedule properties. Ex.A.16 is the death certificate of Thiamuthu. Ex.P.17 and Ex.P.19 are copies of the advocate notices issued by the plaintiff. Ex.A.20 is the marriage invitation of the plaintiff.
10. On the side of the defendants, Ex.B.1 to Ex.B.3 were marked. Ex.B.1 and Ex.B.2 were the copies of the orders passed in O.S.No.320 of 1995 and in I.A.No.526 of 2003. Ex.B.3 is the sale deed in the name of twelfth defendant.
11. On consideration of the oral and documentary evidence, the learned Principal District Judge, Pudukkottai held that the suit was not barred by the principle of resjudicata and also held that eventhough Thiruvenkata Udayar died in the year 1979, the plaintiff was entitled to a partition under the amendment introduced by the Tamil Nadu Government in the year 1989 and also stated that the sale deeds effected by the defendants-1, 2 & 3 would not come in the way of granting partition to the plaintiff and accordingly decreed the suit as prayed for by granting 6/15th share to the plaintiff. The defendants-1, 2 & 3 have filed the present appeal.
12. The primary issue is to be answered in the appeal is as follows:
1.Whether the Tamil Nadu amendment to the Hindu Succession Act which came into effect on 25.03.1989 would be applicable when the karta had died in the year 1979?.
2.Whether the Judgment and Decree of the trial Court should be interfered with?
13. Heard arguments advanced by Mr. P. Thiagarajan, learned counsel for the appellants and Mr.K.Baalasundharam, learned counsel for the first respondent.
14. The issues answered :
The appellants were the defendants-1, 2 & 3 in the suit. The first respondent was the plaintiff in the suit. The parties shall be referred as plaintiff and defendants. The plaintiff R. Lakshmi had filed a suit, seeking partition and separate possession of undivided 6/15th share with respect to three items of properties mentioned as 'A', 'B' and 'C' schedule properties in the plaint. The following genealogical table would be useful to understand the relationship among the parties.
15. The plaintiff's father Thiruvenkata Udayar and mother Thiamuthu had one son and four daughters. Thiruvenkata Udayar died in the year 1979 and his wife Thiamuthu died in the year 1986. Their son Ramasamy died in the year 1988. Among the four daughters, three daughters namely, Pachayammal, Nachayee and Muhurtham @ Mookammal who were impleaded as defendants-4, 5 & 6 were married even before 1989. The plaintiff married in the year 1992.
16. The 'A' schedule property was agricultural land in Neduvasal Village and Pullanviduthi Village. These lands were purchased by Thiruvenkata Udayar from Rathinam Ambalakarar by sale deed dated 10.08.1959 which was marked as Ex.A.1. The 'B' schedule properties were also punja lands in Neduvasal Village. These lands were settled in the name of Thiruvenkata Udayar by his father Ramasamy Udayar by a settlement deed dated 06.04.1957 which was marked as Ex.A.14.
17. The 'E' schedule properties were also punja lands in Neduvasal village. These properties had been purchased in the name of Ramasamy Udayar and Ramalingam on 29.11.1980 by a sale deed marked as Ex.A.15.
18. It is the claim of the plaintiff that 'A' and 'B' schedule properties were an ancestral properties in the hands of Thiruvenkata Udayar. He merged 'A' and 'B' schedule properties into the joint family hotch potch and from the income derived had purchased 'C' schedule property in the name of his son and an other relative. She further claimed that since the properties were ancestral properties, in view of the amendment Hindu Succession Act in 1989 which came into effect on 25.03.1989, she was entitled to an undivided 6/15th share in the suit schedule properties. She claimed that the defendants-1, 2 & 3 were entitled to another 6/15th share and the fourth, fifth and sixth defendants were each entitled to an undivided 1/15th share. This stand of the plaintiff had been upheld by the trial Court.
19. Unfortunately, the trial Court overlooked one vital fact namely that Thiruvenkata Udayar died in the year 1979 much before the introduction of the amendment. When he died the partition opened. At that point of time, even if the properties 'A' and 'B' which alone were available can be considered as joint family properties, the properties can only be divided into two equal shares between Thiruvenkata Udayar and his son Ramasamy Udayar. As a matter of fact, the 'C' schedule property was purchased only after the death of Thiruvenkata Udayar by Ex.P.15 dated 29.11.1980. Consequently, that property was not available for partition when Thiruvenkata Udayar died in 1979. 'A' & 'B' schedule properties alone were available with the family in the year 1979. When Thiruvenkata Udayar died the 'A' and 'B' these properties divided into two equal shares since Thiruvenkata Udayar and Ramasamy Udayar as male members were the only coparceners. On the death of Thiruvenkata Udayar his 1/2 share further divided in equal properties to his wife and one son and four daughters. They would get an equal 1/6th share in his 1/2 share. Consequently, each one of them would get an undivided 1/12th share in 1/2 share of Thiruvenkata Udayar. Ramasamy Udayar already had an undivided 1/2 share. He would get an additional 1/12th share. Consequently, his share in 'A' and 'B' schedule properties would enlarge to 7/12th share and the wife and four daughters would each be entitled to an undivided 1/12th share. On the death of the mother Thiamuthu in the year 1986, once again her 1/12th share devolve onto her legal heirs in equal properties. This would mean that each one of them would get undivided 1/60th share in her 1/12th share. In effect, the daughters would each get 6/60th share (1/12 + 1/60) in the suit 'A' and 'B' schedule properties and the remainder 36/60th share would devolve on to the son Ramasamy Udayar.
20. The learned Principal District Judge, Pudukkottai had not considered the fact that Thiruvenkata Udayar died in the year 1979 much before the introduction of the amendment to the Hindu Succession Act in 1989. The effect of that had been elaborately discussed in the following judgment, which has to be quoted in extension, as quite honestly, the words expressed therein cannot be substituted.
21. In 1991(2), MLJ, Page No.199, Sundarambal and others Vs. Deivnaayagam and others, Hon'ble Mr.Justice M.Srinivasan (as his lordship then was) elaborately discussed the effect of the amendment and the conditions required for its applicability and held as follows:
?15. Section 29-A as introduced by the Amendment reads as follows:
29-A. Notwithstanding anything contained in Section 6 of this Act,-
(i) in a joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a 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 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-deceased 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 pre-deceased 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 daughter, as the case may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (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 this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;
(v) nothing in Clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.
Under Sub-clause (1), the daughter of a coparcener shall become a coparcener in her own right by birth, thus enabling all daughters of a coparcener who were born even prior to 25th March, 1989 to become coparceners. In other words, if a male Hindu has a daughter born on any date prior to 25th March, 1989, she would also be a coparcener with him in the joint family when the Amendment came into force. But the necessary requisite is, the male Hindu should have been alive on the date of the coming into force of the Amendment Act. The section only makes a daughter a coparcener and not a sister. If a male Hindu had died before 25th March, 1989, leaving coparcenary property, then his daughter cannot claim to be a coparcener in the same manner as a son, as, on the date on which the Act came into force, her father was not alive. She had the status only as a sister vis-a-vis her brother and not a daughter on the date of the coming into force of the Amendment Act. Clause (4) excludes daughters married before the date of commencement of the Amendment Act i.e., 25th March, 1989. Clause (5) protects partitions which had been effected before 25.3.1989. The position under Section 29-A will reduce to this. All daughters of a male coparcener will become coparceners entitled to a share with him, if the coparcener had been alive on 25.3.1989. Even among such daughters if any daughter has been married before 25.3.1989, she will not be entitled to claim a share as a coparcener. If there had been a partition in the family before 25.3.1989, that partition will not be affected by the provisions of the Amendment Act. In that event also, the daughter of a coparcener will not be entitled to claim a share as coparcener from the date of her birth and reopen the partition already effected.
16. This interpretation is necessitated in view of two circumstances. The first is that the Amendment Act expressly prescribes the date of commencement as 25.3.1989. Thus the Act will have prospective effect from 25.3.1989 and cannot have any retrospective effect prior to that date. The second aspect is, if an unmarried daughter is given a share in the property of a coparcener who died before 25.3.1989, it will lead to an anomalous situation of reducing the share which has already vested in a married daughter or the widow or the mother of the deceased coparcener. This can be explained clearly by giving an illustration. 'A', a male Hindu having an interest in coparcenary property dies before 25.3.1989 but after the passing of the Hindu Succession Act, 1956, leaving his mother, wife, a son and a daughter. According to Section 6 of the, Hindu Succession Act, a partition should be deemed to have been effected just prior to the death of 'A' for ascertaining the interest of 'A' in the coparcenary property. Thus, he would have had a half share, the other half belonging to his son. In that half share of 'A' his mother, wife, son and daughter will each get 1/4th. The before, on the death of 'A', his mother gets 1/8th, his wife gets 1/8th, his daughter gets 1/8th, and his son gets a total of 5/8th share. If Section 20-A is made applicable to the case, the daughter is to be treated as a coparcener equal to a son and her share will become 1/3 + 1/4th of 1/3 i.e., 1/3 + 1/12 equal to 5/ 12th. The son's share will get reduced to 5/12th from 5/12th. As a necessary consequence, the shares of the mother and the widow will get reduced to 1/12th each from 1/8th. There is nothing in the Amendment Act to warrant such reduction of shares already vested.
17. Another illustration may also be given. 'A' died after 1956 and before 25.3.1989 leaving two daughters and a son. One of the daughters gets married after the death of 'A' but before 25.3.1989. Under the Act as it stood before the amendment, each daughter got 1/6th share in the coparcenary property. If the amendment is applied, the share of the married daughter will get reduced to 1/9th, while the share of the unmarried daughter will increase to 4/9th. The Legislature has not contemplated any such reduction, in the share of the female heirs vested in them already under the provisions of the Hindu Succession Act, 1956, before the passing of the Amendment Act. At any rate, there is nothing in the Amendment Act or in the provisions introduced in the main Act by the Amendment Act to warrant such a conclusion. The object of the Amendment Act is itself to enhance the share of a female heir and raise her status to that of a coparcener. While doing so, the Legislature excluded the daughters who are already married.
18. The position in law that female heirs of a Hindu Mitakshara coparcener referred to in Section 6 of the Act get definite shares on the death of such coparcener vested in them, has been clearly set out by the Supreme Court in Gurupad v. Hirabai . Adverting to the assumption of a partition under Explanation 1 to Section 6 of the Act, the Supreme Court observed thus: In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to separate the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share.
Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional that the interest of a Hindu Mitakshara coparcener 'shall be deemed to be' the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is the before required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle : All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated, from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. In has to be treated and accepted as a Concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition. The Supreme Court reiterated the same in Raj Rani v. Chief Settlement Commissioner, Delhi .
19. It is impossible to imagine that the State Legislature intended to divest the female heirs in whom definite shares had already vested of a portion thereof and reduce the quantum considerably. Therefore, the only harmonious interpretation of Section 29-A that will be in consonance with the other provisions of the Act is that the daughter of a coparcener can become a coparcener only if her father is alive on 25.3.1989. She can become a coparcener only with her father and not with her brother if her father had already passed away before the Amendment Act came into force?.
22. The principles enunciated above had been uphold subsequently by a Division Bench Judgment of this Court reported in 2008 (4) CTC Page No.374, Bagirathi and 5 others Vs.S. Manivanan and another. Eventhough the Division Bench was examining the effect of the amendment introduced in the year 2005, the ration laid down in 1991(2), MLJ, Page No.199, Sundarambal and others Vs. Deivnaayagam and others was approved.
23. The fundamental principle laid down was that on the date of introduction of the act of the amendment act, the kartha should be alive. In this case, since Thiruvenkata Udayar died in the year 1979, the partition had opened at that particular point of time. The amendment act introduced in the year 1989 would have no effect on the plaintiff's share, eventhough, she married in the year 1992 after the introduction of the amendment. The primary condition for her share to enlarge as an equal coparcenor is that her father Thiruvenkata Udayar should have been alive on 25.08.1989. Then she would have become a co-parcener along with her father and her brother. But unfortunately, the father died in the year 1979.
24. In view of the above, I fear that the Judgment and Decree passed by the learned Principal District Munsif, Pudukkottai has to be suitably modified by recalculating the shares of the respective parties as pointed out in para-18 supra. The plaintiff would be entitled to an undivided 6/60th share in 'A' and 'B' schedule properties alone. The purchasers will have to work out their equities at the time of final decree. The first plaintiff would not get any share in the 'C' schedule property since it was purchased after the death of Thiruvenkata Udayar by Ex.A.15 dated 29.11.1980 and was not available for partition when Thiruvenkata Udayar died in the year 1979. That property was the absolute property of the purchasers, Ramasamy and Ramalingam and devolve on to their legal heirs alone. The plaintiff and her sisters would not be entitled to any share in the 'C' schedule property.
25. In the result, this appeal is partly allowed. The Judgment and Decree dated 27.04.2010 in O.S.No.148 of 2004 passed by the learned Principal District Judge, Pudukkottai is modified. The plaintiff in O.S.No.148 of 2004 would get an undivided share 6/60th share and the first, second and third defendants would be jointly entitled to 36/60th share and the fourth, fifth and sixth defendants would be entitled to an equal 6/60th share in the 'A' and 'B' schedule properties alone. The suit is dismissed as against the 'C' schedule properties. No costs.
.