Madras High Court
Malleeswari vs Aruna .... 1St on 23 September, 2022
Author: N.Seshasayee
Bench: N.Seshasayee
C.R.P.(NPD) No.1439 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 28.04.2022
Pronounced on : 23.09.2022
CORAM : JUSTICE N.SESHASAYEE
C.R.P.(NPD) No.1439 of 2019
and CMP.No.9416 of 2019
Malleeswari .... Petitioner / 2nd Petitioner / 2nd Defendant
Vs.
1.Aruna .... 1st Respondent / 2nd Respondent /
2nd Plaintiff
2.Suguna .... 2nd Respondent / 3rd Respondent /
3rd Defendant
Prayer : Civil Revision Petitions filed under Article 227 of the Constitution of
India, praying to set aside the fair and decretal order dated 08.03.2019 passed in
I.A.No.1199 of 2018 in I.A.No.140 of 2006 in O.S.No.192 of 2000 on the file of the
District Munsif, Ponneri, and allot 2/3rd share in suit schedule property in
O.S.No.192 of 2000 on the file of District Munsif Court, Ponneri.
For Petitioner : Mr.T.Ayyasamy
for Mr.R.Ravi
For Respondents : Mr.Ravikumar Paul, Senior Advocate
for Mr.R.Krishnaswamy [R1]
Mr.V.S.Sivasundaram [R2]
ORDER
This revision is preferred challenging the order passed in I.A.No.1199/2018 in 1/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1439 of 2019 I.A.No.140/2006 in O.S.No.192/2000 on the file of District Munsif Court, Ponneri. The revision petitioner is the second defendant in this suit for partition. 2.1 The admitted facts may be briefly summarised:
● A certain Munuswamy Naidu obtained some 11 items of properties vide partition deed dated 22.11.1991, which came to be executed between him and his brother Padmanaba Naidu.
● This case is all about Munuswamy Naidu's branch. Munuswamy Naidu had a son Subramani (the first plaintiff) and a daughter Malleswari (the second defendant). The third defendant is a certain Suguna, the purchaser under Munusamy Naidu.
● While so, Subramani laid a suit in O.S.No.192/2000 against his father Munuswamy Naidu for partition of ½ share in the suit property. On 25.02.2003, an exparte preliminary decree came to be passed, whereunder Munuswamy is declared to have ½ share in all the 11 items of properties.
● Some time later to the passing of the preliminary decree, in 2003, Subramani, the plaintiff, had passed away. Therefore, Subramani's wife Aruna filed an application for impleading herself as the heir of Subramani. 2/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1439 of 2019 ● While things stood thus, on 27.12.2004, Munuswamy Naidu, the father of had executed two documents. The first one is a sale deed in favour of Suguna and it covers the whole of Items 4,5,6 and 7. The second document is a settlement deed in favour of Malleswari (Munuswamy Naidu's daughter) and this document deals with whole of Items 1,2,3,8,9 & 10. The only property that was not dealt with by Munuswamy was item No.11.
● Be that as it may, Aruna, the widow of Subramani had taken out an application in I.A.No.140 of 2006 for passing final decree. ● Subsequently, Suguna the purchaser from Munuswamy filed two applications - one in I.A.No.130 of 2013 to reopen I.A.No.140 of 2006; and another in I.A.No.135 of 2013 to implead her as a party in the final decree proceedings. Both these applications came to be dismissed on 16.07.2013.
● In this background, Malleswari took out an application in I.A.No.1199/2018 in the final decree application in I.A.No.140 of 2006, for re-aligning the share consequent to the coming into force of Hindu Sucession (Amendment)Act, Central Act 39 of 2005, by which, the daughters were elevated to the status of coparcener, with equal right to 3/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1439 of 2019 property as that of the male coparcener.
● In between, Munuswamy Naidu had executed a Will dated 23.04.2008, bequeathing his right and property in favour of Malleswari. And some three years thereafter, on 13.05.2011, Munuswamy Naidu, died. 2.2 The stance of Malleswari can be explained :
● The amended Section 6 of the Hindu Succession Act came into force on 09.9.2005, and in terms of proviso to Section 6 (1) of the Act, it invalidates all alienation made after 20.12.2004, and Malleswari claims that she now being a coparcener, is entitled to 1/3 share in her own right.
● This is opposed to by the second plaintiff, the widow of Subramani, and Suguna, the third defendant, the purchaser of Munuswamy Naidu. ● The trial Court dismissed the application in I.A.1199/2018 filed by Malleswari, on the ground that the preliminary decree has become final. Challenging this dismissal order, the present revision is preferred. 3.1 The learned counsel for the revision petitioner submitted that the settlement deed dated 27.12.2004, which Munuswamy Naidu had executed in her favour is hit 4/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1439 of 2019 by lis pendens, and so was the sale deed he had executed in favour of Suguna. And her strategy is that by virtue of amended Section 6 of the Hindu Succession Act, she would be entitled to 1/3 share, and by virtue of the Will dated 23.04.2008, she would be entitled to another 1/3 share, which Munuswamy Naidu was entitled to, if there were no partition.
3.2 The learned counsel appearing for the revision petitioner/Malleswari submits that ➢ The preliminary decree in the suit was passed on 25.02.2003, and the ratio of the Hon'ble Apex Court in Vineeta Sharma vs. Rakesh Sharma and Others [(2020) 9 SCC 1], only meant that the second defendant be given her 1/3 share in the suit properties as the final decree had not been passed, and that Malleswari would be entitled to the benefit under Central Act 39 of 2005 accordingly.
➢ The revision petitioner does not claim any right under the settlement deed of her father Munusamy Naidu, but she claims only the right under the Will of Munusamy Naidu and she will be entitled to get a share, if anything that is available to be obtained under the Will of her father Munusamy Naidu. 5/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1439 of 2019 ➢ Thirdly, when her brother Subramani died, her mother (Munusamy Naidu's widow) was alive. Therefore, a share would go to the mother, and that Malleswari would get that share as the heir of the mother.
4. Subramani's heirs concedes Malleswari's 1/3rd share. The second respondent, the purchaser of the property makes the following submissions:
(a) That the property itself is not a coparcenary property for the daughter to stake a claim in the said property under Section 6 of the Amended Hindu Succession Act, but it is the property of the paternal grandmother. Any succession to the estate of the mother by the son, will not convert the character into an ancestral property.
(b) He has also contended that in the partition dated 1991 between Munuswamy Naidu and his brother Padmanaba Naidu, Munuswamy Naidu's son Subramani was also made a party only formally, and that he did not have any pre-existing right.
(c) Suguna, the pendente lite purchaser of Munusamy Naidu contends that the 6/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1439 of 2019 sale made on 27.12.2004 is saved in terms of Vineeta Sharma's case as it is based on the preliminary decree dated 25.02.2003 and that parties may not have anticipated and acted at the time .Thirdly, all the sale deeds are not bad by sale agreements referred to in the typed set were executed long prior to the cut off date, namely 20.12.2004, stipulated under Act 39 of 2005.
(d) Malleswari herself was one of the attesting witness and also an identification witness of the sale deed in favour of the third respondent.
Therefore, even if Malleswari is treated as coparcenor, her share is adjusted vis-a-vis Subramani and not others.
5. This Court has little hesitation in allowing this revision principally based on the ratio in Vineeta Sharma case. This would mean that Malleswari, the second defendant is entitled to claim her 1/3 share in the suit properties. This cannot be resisted. Necessarily she must be allowed to pay the requisite court fee to have a supplementary preliminary decree in the manner she claimed, unless her mother had executed any testamentary documents as concerning her share in the share of her 7/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1439 of 2019 son Subramani.
6. Turning to the resistance of Suguna for admitting the revision petitioner Malleswari's to her claim of share in the suit properties, she had purchased the whole of Items 4,5,6 and 7, after 20-12-2004, as against the right ½ share of Munusamy Naidu in terms of the preliminary decree dated 25.02.2003. She therefore, necessarily took a chance with the decree even when she purchased these items of properties. Secondly, her contention that the sale agreements that she had entered into with Munusamy Naidu were dated prior to the cut off date is also immaterial since the sale agreements do not create any interest over the land, but creates only contractual obligation on Munusamy Naidu. In effect Suguna could hold on to only ½ share that Munusamy Naidu had in terms of the preliminary decree. Now, she pleads certain facts to dispute that the suit properties are not coparcenery properties for Malleswari to stake a claim in terms of the law declared in Vineeta Sharma case cannot be countenanced by this Court, for it is not available for a pendente lite transferee to canvass. She has to merely settle for what her vendor obtains under the decree.
8/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1439 of 2019
7. Now, with Malleswari obtaining 1/3 share in the suit properties, the extent of right that Suguna would have in items 4 to 7 would further dwindle to 1/3 share of Munusamy Naidu, and no more. This would imply that she would further lose another 1/6 share within the ½ share of Munusamy Naidu. This is unavoidable in law. However, if Malleswari receives any property of her father Munusamy Naidu based on the latter's Will (its proof not presumed here) then in equity Suguna must obtain so much of the sale consideration that she had paid as would be proportionate to 1/6 share that she had lost from and out of the estate received by Malleswari under the Will of her father. This will be equitable to Suguna.
8. In fine, this revision is allowed, and the order of the trial court in I.A.No.1199 of 2018 in I.A.No.140 of 2006 in O.S.No.192 of 2000 on the file of the District Munsi, Ponneri, is set aside. No costs. Consequently, connected miscellaneous petition is closed.
23.09.2022 Index : Yes / No Internet : Yes / No Speaking order / Non-speaking order ds 9/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD) No.1439 of 2019 N.SESHASAYEE.J., ds Pre-delivery Order in C.R.P.(NPD) No.1439 of 2019 23.09.2022 10/10 https://www.mhc.tn.gov.in/judis