Madras High Court
Radha vs Muthiah Vathiyar (Died) on 24 March, 2008
C.M.A.(MD)No.796 of 2008
[Converted as S.A.(MD)No.7 of 2023]
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
07.12.2022 21.12.2022
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A.(MD)No.796 of 2008
[Converted as S.A.(MD)No.7 of 2023]
1.Radha, W/o.Ravi @ Shanmugam
2.Saraswathi, D/o.Nallakannu Vathiyar (Late) ... Appellants
vs.
Muthiah Vathiyar (Died)
1.Subbulakshmi, W/o.Muthiah Vathiyar (Late)
2.Periyanayagam, S/o.Muthiah Vathiyar (Late)
3.Nallakannu @ Kannan, S/o.Muthiah Vathiyar (Late)
4.Sathiyasayee @ Nagaraja, S/o.Muthiah Vathiyar (Late)
5.Samy Vathiyar @ Pappa Vathiyar, S/o.Nallakannu Vathiyar
6.Muthukumarasamy, S/o.Nallakkannu Vathiyar
7.Muthulakshmi, W/o.Avudaiyappan
8.Velammal @ ShanmugaVelammal, D/o.Kanthan
9.Krishnammal, W/o.Sangaiah
10.Sathyasayeepapa, W/o.Govindan
11.Seetharama Muthaliar, S/o.Subramania Muthaliyar
12.Ramachandran, S/o.Mahalingam ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Order 43 Rule 1 (u) of
the Code of Civil Procedure, against the judgment and decree passed in A.S.No.
123 of 2004, on the file of the Additional Sub-Court, Tenkasi, dated 24.03.2008,
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C.M.A.(MD)No.796 of 2008
[Converted as S.A.(MD)No.7 of 2023]
setting aside the judgment and decree, passed in O.S.No.18 of 2004, on the file of
the District Munsif Court, Shencottah, dated 25.03.2004.
For Appellants : Mr.S.Meenakshisundaram
Senior Counsel
for Mr.T.Selvan
For Respondents 1 to 3 : Mr.D.Srinivasaraghavan
For Respondents 5 & 7 to 12: No Appearance
For 6th Respondent : Died
JUDGMENT
This Civil Miscellaneous Appeal is preferred by the plaintiffs in O.S.No.18 of 2004, on the file of the District Munsif Court, Shencottah, against the judgment passed by the Appellate Court setting aside the trial Court judgment and decree, allowing the application to receive additional document and remanding back to the trial Court with direction to frame additional issue and try the suit afresh.
2. The suit for partition was allowed by the trial Court and preliminary decree was passed declaring the plaintiffs, Tmt.Radha and Tmt.Saraswathi, are entitled for 10/72 share each in the suit schedule properties. The said judgment and decree, dated 25.03.2004, came to be challenged by Muthiah Vathiyar, the 2/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] first defendant.
3. Pending Appeal, the said Muthiah Vathiyar died. Hence, his legal representatives were brought on record and others, who subsequently derived interest in the suit schedule property were also arrayed as respondents.
4. Before adverting to the merits of the arguments submitted by the learned counsels, regarding the circumstances under which the Appellate Court exercised its power of remand under Order XLI Rules 23, 23A and 25 of C.P.C. and the law governing partition of coparcenary property among the first class heirs of a Hindu male died intestate in view of the amendment of the Tamil Nadu Act 1 of 1990 to Hindu Succession Act, 1956, it is necessary to understand the factual background of this case. Hence, the facts are recapitulated in a nutshell as below.
(i) One Sami Vathiyar is the adopted son of Ilathur Nallakannu Vathiyar. In the year 1908, the suit schedule properties were conveyed to Sami Vathiyar through a deed and since then, he has been enjoying the same, succeeding Ilathur Nallakannu Vathiyar as his adopted son. The said Sami Vathiyar had one son, by name, Nallakannu Vathiyar and four daughters, namely, Muthammal, Unnamalai Ammal, Pichammal and Vadivu.
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(ii) After the demise of the said Sami Vathiyar, his property was inherited by his sole son Nallakannu Vathiyar and was in his possession and enjoyment till his lifetime. The said Nallakannu Vathiyar died on 11.09.1975, leaving behind his wife namely, Janaki Ammal, three sons, who are the defendants 1 to 3 and six daughters, who are the plaintiffs 1 and 2 and the defendants 4 to 7.
(iii) In the plaint filed by two of the daughters of Nallakannu Vathiyar, it was alleged that the defendants 1 to 3, who are the sòns of Nallakannu Vathiyar, after the demise of Nallakannu Vathiyar, did not take care of their mother and sisters. The marriages of the plaintiffs and the defendants 6 and 7 were conducted by their mother Janaki Ammal at her expense. Though request was made to the defendants 1 to 3 to divide the joint family property and allot the respective shares in the land and building, the defendants 1 to 3 were evading to effect partition. Contrarily, the first defendant has sold the house and 1 ½ cents of land abutting to the house to the defendants 8 and 9 on 26.07.1999. The said sale is invalid and it was not alienated for the welfare of the family members enjoying the property jointly.
(iv) The defendants 1 and 3 claim that their father Nallakannu Vathiyar had 4/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] executed a Will in their favour. This is untrue and even if it is so, the execution of the Will is surrounded with suspicion since Nallakannu Vathiyar was not keeping good health and mental state for about six months prior to his death. Hence, the voluntary execution of the alleged Will is doubtful.
(v) The first defendant, Muthiah Vathiyar, who is the first appellant in the first Appellate Court, in his written statement, has pleaded that the suit properties are self-acquired properties of Nallakannu Vathiyar, in respect of which, he has executed a Will, dated 23.08.1975 and got it registered. The said Will was executed in a good state of mind, voluntarily without any external influence. After the demise of Nallakannu Vathiyar on 11.09.1975, the Will has come into effect and acted upon. As per the Will, reserving the life interest to Janaki Ammal absolutely vested on the sons, who are the defendants 1 to 3. The said Janaki Ammal, wife of Nallakannu Vathiyar died on 09.01.1996. After the demise of the father Nallakannu Vathiyar and before the demise of the mother Janaki Ammal, during the year 1985, there was an oral partition among the male decendants. 'A' Schedule Property was allotted to the first defendant and on the strength of the oral partition, he sold 'A' Schedule Property to defendants 9 and 10 for valid consideration and got the sale deed registered on 26.07.1999. 5/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023]
(vi) During the lifetime of Janaki Ammal, she, along with defendants 2 and 3 sold certain properties to one Ramachandran on 16.10.1986. Similarly, on 29.06.1988, the said Janaki Ammal and the third defendant together sold some properties to Krishnammal, daughter of Janaki Ammal [the sixth defendant] and her husband Sangaiah. These two properties are not included in the suit schedule for partition. Hence, the suit suffers defect of partial partition.
(vii) Yet another plea taken by the first defendant is that the plaintiffs got married before the enactment of the Tamil Nadu Act 1 of 1990. Hence, they are not entitled to have a share in the coparcenary property. The plaintiffs, being aware of the Will executed by Nallakannu Vathiyar, had not sought any partition to the date of filing of the suit, but for the sake of grabbing the property, it was falsely pleaded that the suit properties were in joint possession and enjoyment.
(viii) The third defendant, in his written statement, had stated that Nallakannu Vathiyar died intestate after being ill for nearly six months and there is no chance of executing any Will during the said period. After the demise of Nallakannu Vathiyar, the first defendant had purchased a portion of the property from Janaki Ammal and the defendants 2 and 3 under sale deed, dated 6/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] 20.10.1986. If Nallakannu Vathiyar had executed any Will as alleged by the first defendant, there is no necessity for the first defendant to purchase the property left by Nallakannu Vathiyar from the wife and two other male decendants of Nallakannu Vathiyar. Further, Janaki Ammal and the defendants 1 to 3 together sold a property in S.No.322/6 on 23.07.1981 to one Chitrapuram Subbaiah, accepting that the property is a joint family property. Similarly, on 16.10.1986, Janaki Ammal and the defendants 2 and 3 together sold a portion of the property to Krishnammal, the sixth defendant and her husband Sangaiah accepting the said property as ancestral property. With similar declaration, a portion of the property was sold to the seventh defendant and therefore, it is incorrect to state that Nallakannu Vathiyar left a Testament/Will in favour of the defendants 1 to 3 reserving the life interest with his wife Janaki Ammal.
(ix) The sixth defendant filed a written statement, which has been adopted by the fifth defendant. In their written statements, they admit that they are the daughters of Nallakannu Vathiyar. The sixth defendant purchased 2 ½ cents of land from the first defendant. However, she sails with the plaintiffs and seeks for partition in respect of other properties excluding the property, which she has purchased from the first defendant.
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(x) The seventh defendant, yet another daughter of Nallakannu Vathiyar, has filed a written statement on the same line of the sixth defendant. She has sought for excluding 2 ½ cents of land, which she purchased from the first defendant.
(xi) Defendants 2, 4, 8 and 9 remained ex-parte before the trial Court.
5. The trial Court on considering the facts and circumstances of the case, has framed the following issues:-
(i) Whether the plaintiffs are entitled for 10/72 share each as prayed?
(ii) Whether the plaintiffs are entitled for the benefit of the Tamil Nadu Act 1 of 1990?
(iii) Whether the Will, dated 23.08.1975, is genuine?
(iv) What other reliefs the plaintiffs are entitled for?
6. On behalf of the plaintiffs, the first plaintiff R.Radha has mounted the witness box. Three exhibits were marked in support of the plaintiffs' case. On behalf of the defendants, the first defendant has mounted the witness box, no 8/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] document was filed.
7. The trial Court on appreciation of evidence, has held that the parties admit that the suit schedule properties are the properties of Nallakannu Vathiyar. It is admitted by all parties and also proved that Nallakannu Vathiyar died on 11.09.1975. Though the first defendant has pleaded that Nallakannu Vathiyar executed a Will on 23.08.1975 and the same was registered on 02.09.1975, he has not let in evidence to prove the Will as per Section 68 of the Indian Evidence Act, 1872. Further, the trial Court has also observed that, though the defendant alleges that the plaintiffs got married prior to the Tamil Nadu Act 1 of 1990 came into force, he has not proved his contention that they got married prior to 25.03.1989.
8. Regarding the plea of partial partition, though there was no issue framed, detailed argument has been placed and the same has been considered by the trial Court and held that the properties, which have not been included in the suit, were sold jointly by the legal heirs of Nallakannu Vathiyar, claiming it as joint family property and as ancestral property. Those alienations were done prior to the enactment of the Tamil Nadu Act 1 of 1990 and therefore, the defence plea that 9/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] the Suit is bad for partial partition is not sustainable. Therefore, allowed the suit as prayed for and passed a preliminary decree declaring 10/72 share to each of the plaintiffs.
9. Being aggrieved by the same, the first defendant preferred first appeal before the Additional Sub-Court, Tenkasi.
10. Pending appeal, the first defendant died, hence, his legal representatives were brought on record as appellants 2 to 5. When the appeal was pending, an interlocutory application was filed to receive additional document, viz., the Will dated 23.08.1975, claimed to have been executed by Nallakannu Vathiyar. The lower Appellate Court has considered positively the grounds regarding partial partition, non-framing of issues regarding alleged oral partition and failure on the part of the parties to prove whether the plaintiffs got married prior to 25.03.1989, the date on which the Tamil Nadu Act 1 of 1990 came into force, thought fit to remand the matter back. Also, the interlocutory application to receive the Will as additional document was allowed. The trial Court's judgment and decree was set aside with direction to frame additional issue and retry the 10/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] suit.
11. In the said circumstances, the present Civil Miscellaneous Appeal is filed on the ground that the lower Appellate Court has miserably failed to consider the fact that the first defendant's claim over the line of inheritance got divested by the Will, dated 23.08.1975, executed by Nallakannu Vathiyar, not been proved in the manner known to law and therefore, the trial Court has rightly observed that, the Will of Nallakannu Vathiyar though pleaded not been produced in spite of notice to produce the Will, to be tested in accordance with Section 68 of the Indian Evidence Act. The first defendant having failed to produce the document before the trial and failed to prove the Will in the manner known to law, cannot take advantage of his own fault and seek for receiving additional document at the appellate stage to fill up the lacunae. The trial Court erred in wrongly exercising power under Order XLI Rule 27 of C.P.C. by entertaining Interlocutory Application to receive additional document. Further, the power of remand by the Appellate Court, which is governed under Order XLI Rules 23, 23- A and 25 of C.P.C. has been grossly misapplied by the trial Court when there is no reason to remand the matter back to the trial Court.
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12. The submissions made by the respective counsels heard. Records perused.
13. The submission of the learned counsel for the appellant is, the order of remand for re-trial and the order to receive additional document, which was in possession of the respondents/defendants even during the time of trial and in spite of causing notice to produce the same during the trial, but not produced cannot be allowed at the appellate stage to fill up the lacunae.
14. Regarding partial partition, the trial Court though not framed an issue for partial partition, had discussed about the said defence at length and had rejected the same. Hence, to frame an additional issue regarding partial partition is a futile and superfluous exercise. It will not meet the ends of justice, but only delay and deprive the lawful right of the female heirs of Late.Nallakannu Vathiyar, who died intestate, leaving the suit schedule properties for his legal heirs, both male and female to be apportioned equally as per the Hindu Succession Act as amended by the Tamil Nadu Act 1 of 1990. 12/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023]
15. Per contra, the learned counsel for the contesting respondent submitted that, the lower appellate Court has rightly concluded that the suit suffers malady of partial partition. The properties covered in the alleged Will of Nallakannu Vathiyar, dated 23.08.1975, being the subject matter of the suit, the lower Appellate Court after considering the nature of the case and the importance of the Will, which has been failed to be marked for appropriate decision in the partition suit, has allowed the interlocutory application filed by the first defendant/Appellant in the lower Appellate Court to receive the Will of Nallakannu Vathiyar executed on 23.08.1975 as additional document. Hence, it remanded the matter back to the trial Court to frame additional issue regarding the plea of partial partition, which is relevant and necessary issue to decide the suit for partition, but omitted to be framed.
Law and Facts taken up for consideration:-
16. The facts admitted by the contesting parties is that the suit schedule properties belong to Late.Nallakannu Vathiyar. He died on 11.09.1975, leaving behind his wife Janaki Ammal, three sons and six daughters. Though Muthiah 13/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] Vathiyar, one of the sons of Nallakannu Vathiyar, claims that his father executed a Will during his lifetime and got it registered few days before his demise, the said Will was not produced before the trial Court. The plaintiffs as well as some of the defendants have disputed the factum of the Will alleged to have been executed by Nallakannu Vathiyar during his lifetime in good state of mind. It is candidly admitted by all the parties that after the demise of Nallakannu Vathiyar, some of the properties left by him have been dealt with by some of his legal heirs jointly with specific understanding that they are joint family property inherited by them through Nallakannu Vathiyar. In fact, two of the legal heirs, who are the defendants 6 and 7 had purchased each 2 ½ cents of land and this transaction has been done during the year 1999. The lower Appellate Court taking note of the fact that these properties, which have been alienated after the demise of Nallakannu Vathiyar by some of the legal heirs had held that these properties ought to have been included in the suit schedule property for partition and having failed to include those properties, the suit suffers defect of partial partition.
17. With regard to partial partition, though specifically pleaded in the first defendant's written statement, the trial Court has not framed any issue, however, 14/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] had considered the point since it has been canvassed before it by the counsel for the defendants. The trial Court held that though it is argued that necessary parties are not impleaded and the suit suffers defect of partial partition, in the written statement, the first defendant has not placed before the Court the particulars of other necessary and proper parties to the suit omitted to be included in the plaint. Therefore, the plea of non-joinder of necessary party by way of oral submission without adequate particulars in the pleading is not sustainable. Further, as far as the plea of partial partition, taking note of the fact that the properties which are not included in the suit schedule were all alienated in the year 1999 treating it as joint family property and the contesting parties are privy to the transaction.
18. In this connection, it is also pertinent to note that it is not that in all the cases any issue not framed by the trial Court, the Appellate Court should remand the matter back to the trial Court. If the trial Court had considered the controverted facts and given a finding without framing an issue, and if the appreciation of facts suffice to answer the controverted facts and the said issues not essential and vital to the lis, the Appellate Court need not exercise its power of remand. Order XLI Rule 25 of C.P.C. empowers the Appellate Court to remand 15/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] the matter back to the trial Court, if the trial Court has omitted to frame or try any issue or to determine any question of fact essential to decide the suit upon merits.
19. As far as the case in hand, the omission to include the properties alienated prior to the Central Act 39 of 2005 came into force cannot be considered as omission to include the properties available for partition. When the Appellate Court passed the order in the appeal on 24.03.2008, the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) had already came into force amending Section 6 of the Hindu Succession Act, 1956, which has explained that the properties already alienated by coparceners before the amendment came into force has to be excluded and placed those properties beyond the purview of Section 6 of the Hindu Succession Act, 1956. Therefore, the twin reasons given by the lower Appellate Court namely, (a) no issues framed regarding partial partition; and (b) the date of marriage of the plaintiffs not established, are no more relevant both on facts and on law after amendment to Section 6 under the Central Act 39 of 2005, which came into force on 09.09.2005.
20. The application of Order XLI Rules 23, 23A and 25 of C.P.C., 16/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] succinctly explained by the Hon'ble Supreme Court in P.Purushottam Reddy and Others vs. Pratap Steels Ltd. reported in (2002) 2 SCC 686, tracing the March of law, the Apex Court observed that:
“9. ... An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of C.P.C. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided.”
21. The relevant provision under the Code of Civil Procedure, which empowers the Appellate Court to remand the matter back to the trial Court, which has passed the decree, is dealt under Rules 23, 23-A and 25 of Order XLI of C.P.C.
22. For convenience sake, the provisions are extracted below:-
“ORDER XLI - Appeals from Original Decrees
23. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, 17/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re- admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23A. Remand in other cases.- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under
rule 23.
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.-
Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take 18/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore within such time as may be fixed by the Appellate Court or extended by it from time to time.''
23. A plain reading of the provision makes it clear that in case the Appellate Court wants to remand the matter back to the trial Court for omitting to frame any essential issue, then, the Appellate Court should record reason how that the issue so omitted is vital and essential to decide the suit on merits. If the issue is not vital and essential, but only ancillary or illusion then it will be a futile exercise to remand the matter back, more particularly, when the trial Court has already considered the controverted fact and arrived at a decision without framing any formal issue. Such unwarranted order of remand give the litigation an undeserving lease of life which already been brooding for more than three decades [Plaint presented on 30.09.1999]. The lower Appellate Court erred in to take judicial notice of the change in legislation, which has rendered the twin reasons for remanding the suit back to the trial Court redundant.
24. As pointed out earlier, neither omission to include the properties 19/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] alienated prior to the amendment nor the date of marriage of the daughters of the coparcener is an essential issue in deciding the partition suit in view of the change in law. Therefore, the order of remand per se against the spirit of Order XLI Rules 23-A and 25 of C.P.C.
25. Regarding the indulgence shown by the lower Appellate Court, accepting the interlocutory application to receive additional document namely, the Will of Nallakannu Vathiyar alleged to have been executed on 23.08.1975, the defendants have come forward to file the Interlocutory Application before the lower Appellate Court even though they have pleaded about the Will and contested the suit without filing it. Till the filing of Interlocutory Application in the appeal under Order XLI Rule 27 C.P.C., the said Will has not seen the light of the day. Further, the defendants pleaded that there was an oral partition among the male decendants of Nallakannu Vathiyar after his demise. Except the first defendant, the other two sons have not supported the case of oral partition. No oral or documentary evidence adduced on behalf of the defendants to establish either the execution of Will or the oral partition thereafter. In such circumstances, the lower Appellate Court has gone beyond evidence and remanded the matter back to the trial Court to delay the process and permitting the defendants to fill up 20/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] the lacunae. Thus, deprived the lawful right of the plaintiffs, which has been vested upon them by virtue of amendment by the State of Tamil Nadu, vide Tamil Nadu Act 1 of 1990 and further enlarged under the Central Act 39 of 2005.
26. Section 6 of the Hindu Succession Act as it stands now and as on the date of the order passed by the lower Appellate Court, entitles a female in the Hindu Joint Family to inherit the coparcenary property equally along with the male decendants unless the property is divested by way of any instrument.
27. Having held that the lower Appellate Court erred both on law and facts by allowing the Interlocutory Application to receive the additional documents without any justifiable cause and remanded the matter to frame additional issues and to try afresh, it is now to be decided what will be the consequence, since the present Civil Miscellaneous Appeal is not filed under Section 100 of C.P.C., but under Order XLIII Rule 1(u) of C.P.C. In this regard, the Hon'ble Supeme Court in J.Balaji Singh vs. Diwakar Cole and others reported in AIR 2017 SC 2402 :
2017 (14) SCC 207, in a most similar case, where the dismissal of the suit for declaration and injunction dismissed by the trial Court, challenged by the plaintiff 21/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] along with an Application under Order XLI Rule 27 of C.P.C., the first Appellate Court allowed the Application and proceeded to decide the appeal on merits, it set aside the judgment and decree of the trial Court and remanded the case to the trial Court for deciding the suit afresh. When the said order of the lower Appellate Court was challenged before the High Court, the High Court allowed the Appeal filed under Order XLIII Rule 1(u) of C.P.C., set aside the decree passed by the first Appellate Court and restored the decree passed by the trial Court. The judgment of dismissal of the suit by the trial Court was confirmed. This was challenged before the Hon'ble Supreme Court in the above said case [J.Balaji Singh's case], wherein the Hon'ble Supreme Court held that the first Appellate Court having formed an opinion to remand the case, ought not to have considered the merits of the case except to give reasons in support of the remand order as to why the remand is called for to enable the trial Court to decide the case on merits. The discussion on several issues of merit by the lower Appellate Court was totally uncalled for. The High Court, which has restored the trial Court's judgment, has committed jurisdictional error, instead of examining the legality of the remand order in an appeal under Order XLIII Rule 1(u) of C.P.C., it has come to the conclusion that the remand order was bad in law, then, it can only remand the 22/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] case to the first Appellate Court with the direction to decide the First Appeal on merits, since Order XLIII Rule 1(u) of C.P.C. confers limited power on the High Court to examine only the legality and correctness of the remand order of the First Appellate Court, but not beyond that.
28. As far as the case in hand, the trial Court after framing relevant issues, has allowed the suit, whereas the lower Appellate Court after going through the merits of the case in detail, had taken note of certain facts, which are not pleaded or substantiated by evidence, cited this as a reason for remand. Otherwise, the entire reasoning are illusionary and nothing worth for appreciation.
29. In the said circumstances, the Civil Miscellaneous Appeal is filed under Order XLIII Rule 1(u) of C.P.C. It is pertinent to note that the appeal though not filed under Section 100 r/w Order XLII of C.P.C., but under Order XLIII Rule 1(u) of C.P.C., to have all the trappings of Section 100 r/w Order XLII of C.P.C. and it is not necessary to remand the matter back to the lower Appellate Court or to the trial Court, which will not meet the ends of justice. 23/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023]
30. Being conscious of the Apex Court's ruling in J.Balaji Singh's case [cited supra], this Court opine that remitting back the matter to the Court below will not meet the ends of justice in the instant case for the following reasons:-
(a) The Will now proposed to be marked as Additional document was executed on 23.08.1975 and has been disclosed by the first defendant in his written statement filed in the year 2000. No plausible reason given by him for not producing the Will along with his written statement or at any other later point of time till the decree passed against him in the suit by the trial Court. Even thereafter, his application to receive the additional document by the lower Appellate Court does not provide any sufficient reason to entertain his application. Belated introduction of the Will will cause grave prejudice to the plaintiffs, who had in their plaint itself refuted the execution of the alleged Will by Nallakannu Vathiyar and its genuineness. If the order passed by the lower Appellate Court to receive the additional document allowed to be sustained, then, the difficulty of disproving the Will by questioning the attesting witness will not be available, due to efflux of time by not producing the Will and not examining the attesting witness at the time of trial. It is also pertinent to note that the only 24/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] person, who claims as a beneficiary under the said Will is Muthiah Vathiyar, who died pending appeal, out of his two brothers, who are the other beneficiaries under that Will, one remained absent and another denies such Will in the written statement. In such circumstances, introducing the Will belatedly after ensuring that the attesting witness will not be alive and the person acquaintance with the attesting witness also will not be available, the Interlocutory Application has been filed with an ulterior motive. The lower Appellate Court had failed to see through the sinister design of the first defendant and has erroneously allowed the application.
(b) The lower Appellate Court after discussing the merits of the case has remanded the matter back to the trial Court with a direction to frame issue regarding partial partition and to decide the marriage date of the plaintiffs to ascertain whether it was prior to the Tamil Nadu Act 1 of 1990 or subsequent to that. When these two issues being redundant to decide the case, the remand of the matter has to be construed as one exercised by virtue of power under Order XLI Rule 25 of C.P.C. and the need to frame those issues and try is not required after the Central Amendment Act 39 of 2005 came into force. 25/40
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31. In Narayanan vs. Kumaran and others reported in (2004) 4 SCC 26, the Hon'ble Supreme Court has held that an appeal under Order XLIII Rule 1(u) C.P.C. should be heard only on a ground enumerated under Section 100 of C.P.C. and the same has been reiterated by the Hon'ble Supreme Court in Jegannathan vs. Raju Sigamani and another reported in 2012 (3) LW 197. The relevant portion of the judgment rendered in Narayanan's case [cited supra] is extracted below.
''17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated in Section 100. We, therefore, accept the contention of Mr T.L.V. Iyer and hold that the appellant under an appeal under Order 43 Rule 1 clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an 26/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate court.
18. The High Court of Rajasthan in Abdul Gani v.
Devi Lal [AIR 1960 Raj 77] held that the appeal under this clause should be heard only on the grounds enumerated in Section 100 and not on question of facts as in the case of first appeal.
19. In Seshammal v. Kuppanaiyyangar [AIR 1926 Mad 475] this Court held as under: (AIR p. 476) ''Although the civil appeal has taken the form of a civil miscellaneous appeal against an order of remand the Subordinate Judge is a final judge of fact and the only grounds available to the appellant to attack the judgment are those which would be available to him in second appeal.''
20.In Ambukutti Vaidier v. Kannoth Koottambath Kelan [AIR 1933 Mad 460] the case of Secy. of State v.
Tripurna Sundarammal [AIR 1926 Mad 474] was followed. 27/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] The Court held that civil miscellaneous appeals stand on the same footing as second appeals with regard to their being arguably only question of law.''
32. The appeal against the order of remand preferred under Order XLI Rule 1(u) of C.P.C., carries all the trappings of Second Appeal preferred under Section 100 of C.P.C., and it becomes imperative for the High Court to look into the facts of the case and ascertain whether any substantial question of law required to be answered in the said appeal.
33. Having found that the judgment of the trial Court is erroneous for failure to frame relevant issue, the lower Appellate Court not stopping with that, had gone further and discussed the merits of the case in detail, since it had a contra view. Hence, the lower Appellate Court set aside the trial Court's judgment and decree and remanded it with a direction to frame additional issues, which does not exist after the subsequent amendment to Section 6 of the Hindu Succession Act, 1956 by the Central Amendment Act 39 of 2005. Hence, the Civil Miscellaneous Appeal is suo motu converted into Second Appeal and the following substantial question of law is framed:-
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https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] Whether the Central Act 39 of 2005 is applicable to the suit for partition pending before the lower Appellate Court at the time when the said Act came into force?
34. Section 6 of the Hindu Succession Act, 1956, on the date of filing the suit, reads as follows:-
''6.Devolution of interest in coparcenary property- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.- For the purposes of this Section, 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 the property had taken place 29/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest refered to therein.''
35. Section 29-A of the Hindu Succession Act, 1956 as introduced by the Tamil Nadu State Amendment Act 1 of 1990, reads as follows:-
''29-A. Equal rights to daughter in coparcenary property.- 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 the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(ii) at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:30/40
https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] 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 child of the pre-deceased son or of the pre-deceased daughter, as the case may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of 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 31/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] Amendment) Act, 1989.'' (Emphasis added)
36. Section 6 of the Hindu Succession Act, 1956 after the Central Amendment Act 39 of 2005, reads as follows:-
''6. Devolution of interest in coparcenary property.-
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenery property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of 32/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] December, 2004. (Emphasis added) (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) 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 testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,-
(a) the daughter is allotted the same share as is allotted to a son; (Emphasis added)
(b) the share of the pre-deceased son or a pre-
deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre- deceased daughter; and
(c) the share of the pre-deceased child of a pre-
33/40
https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation.-For the purposes of this sub-section, 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 the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect-
(a) the right of any creditor to proceed against the 34/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] sson, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005) had not been enacted.
Explanation.-For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005).
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004 Explanation.-For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a Court.''
37. The plaintiffs in this case are the daughters of Nallakannu Vathiyar. 35/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] They claim share in the father's property by virtue of inheritance. The object of State Amendment as well as Central Amendment to Section 6 of the Hindu Succession Act is to ensure the gender equality in case of inheritance. It is a beneficial legislation with laudable object to eliminate the discrimination on the basis of sex, which is one of the fundamental rights guaranteed under the Constitution of India.
38. In the light of the above fact, if the case in hand is considered, after disposal of the suit, pending appeal, the Central Amendment Act 39 of 2005 has come into force and has given quietus to the issue what the lower Appellate Court wants to determine by remanding the suit to the trial Court.
39. The properties, which were divested by way of sale deeds prior to the amendment of the Act will not be available for partition. Therefore, the finding of the lower Appellate Court that the suit is bad for partial partition ex facie unsustainable. There is no difference between the married daughters and unmarried daughters after the Central Act 39 of 2005 came into force. Whatever property available on the date on which the Act came into force, those properties 36/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] are to be subjected to division equally among the heirs of both genders. The limitation to inherit found in Section 29-A of the Hindu Succession Act, 1956 brought in by the State Amendment Act been removed by the Central Amendment Act. Therefore, the lower Appellate Court's judgment of remand for this reason also is not sustainable.
40. Hence, the substantial question of law has to be answered in affirmative holding that the Central Amendment Act 39 of 2005 applies to the pending suits and the parties can seek for necessary amendment if required and the Court itself can take judicial notice of the change in legislation, which is beneficial in nature with an intention to provide gender equality.
41. All other facts, which are necessary to determine the suit for partition, had already been discussed on merit both by the trial Court as well as by the lower Appellate Court and therefore, exercising the inherent power under Section 151 of C.P.C. in order to meet the ends of justice and to prevent the abuse of process by filing frivolous applications belatedly to protract the proceedings, this 37/40 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.796 of 2008 [Converted as S.A.(MD)No.7 of 2023] Court set at naught the order of the lower Appellate Court, restore the judgment and decree of the trial Court. Consequently, the share of the plaintiffs in the suit schedule property in the ratio of 10/72 as declared by the trial Court is hereby confirmed.
42. Accordingly, the lower Appellate Court's judgment and decree, dated 24.03.2008, is set aside and the trial Court's judgment and decree, dated 25.03.2004, passed in O.S.No.18 of 2004, is upheld.
43. The Registry is directed to convert the Civil Miscellaneous Appeal into Second Appeal and assign Second Appeal number on payment of difference in Court fees, if any.
44. In the result, the Appeal is allowed. Considering the nature of the relationship, no order as to costs.
Index : Yes 21.12.2022
Internet : Yes
smn2
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C.M.A.(MD)No.796 of 2008
[Converted as S.A.(MD)No.7 of 2023]
To
1.The Additional Sub-Judge,
Tenkasi.
2.The District Munsif,
Shencottah.
3.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)No.796 of 2008
[Converted as S.A.(MD)No.7 of 2023]
DR.G.JAYACHANDRAN, J.
smn2
PRE-DELIVERY JUDGMENT MADE IN
C.M.A.(MD)No.796 of 2008
[Converted as S.A.(MD)No.7 of 2023]
DATED : 21.12.2022
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