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2016 Supreme(SC) 727
SUPREME COURT OF INDIA
ANIL R. DAVE, L. NAGESWARA RAO, JJ.
R. Mahalakshmi – Appellant
Versus
A. Kanchana & Ors. – Respondents
Civil Appeal Nos. 9153-9156 of 2016 (Arising out of SLP (C) Nos. 19820-19823 of 2016)
Decided On : 15-09-2016
IMPORTANT POINT
Partial partition is bad in law.
Headnote:(a) Property law – Partition – Interpretation of judgment – Judicial propriety – Supreme Court remitting the matter to trial court directing to consider all other properties as inherited by father of plaintiff and defendant – Direction was not complied even on remand – First appellate court rightly remitted the matter back to trial court – High Court erroneously interpreting the Supreme Court judgment as only directing to give an opportunity to the parties to amend their respective pleadings, file additional documents and to lead further evidence in support of the amended pleadings – High Court committed an error in ignoring para 33 of the judgment. (Para 8)
(b) Property law – Partition – Partial partition is bad in law. (Para 8)
Facts of the case:
The Appellant is the Fourth defendant in O.S. No. 666 of 2001 filed by her brother Sri A.V. Venkataraman for partition and allotment of a share of 6/20 in the property. Defendants No. 1 to 3 are the sisters of the Appellant.
It was averred in the plaint that the suit property was an ancestral property inherited by the father of the Plaintiff, Sri A.V. Venkataraman, by a partition deed dated 27.04.1954. Sri A.V. Venkataraman died in 1961 leaving his wife Smt. A.V. Rathnabai, the Plaintiff and the defendants. According to the Plaintiff he was entitled to a share of 6/20, the Second and Fourth defendants 6/20 share each and First and Third defendants 1/20 share each of the suit property.
Defendants 1 and 3 married prior to the amendment of Hindu Succession (Tamil Nadu Amendment) Act, 1989 inserting section 29A and so they were entitled to 1/20 share. The Appellant married after the amendment and Defendant No.2 did not marry as she was paralyzed in an accident due to which they were entitled to 6/20 share. The Appellant filed a written statement claiming a share of 36/90.
The trial judge decreed the suit holding that the Plaintiff, the Second Defendant and the Fourth defendant (Appellant) were entitled to a share of 6/20 each and First and Third defendants were entitled to a share of 1/20 each in the suit property. The Appellant preferred A.S. No. 39 of 2006 in which she stated that the Plaintiff omitted other properties which were available for partition and that the suit for partial partition was bad in law. The Principal District Judge, Chengalpattu dismissed A.S. No. 39 of 2006. The Appellant approached the High Court of Judicature at Madras by filing Second Appeal No.1168 of 2007 which was also dismissed on 01.11.2007.
The Supreme Court remitted the matter to the Trial Court for the reason that all the properties which were inherited by the Appellant’s father by virtue of the registered deed of partition dated 27.04.1954 were not included in the suit schedule.
The Additional Subordinate Judge, Chengalpattu by his judgment dated 08.09.2010 passed a preliminary decree holding that the Appellant is entitled to 1/4 share of the suit property (house) and that the Plaintiff is entitled to remaining 3/4 share.
Appeal Suit No. 3 of 2011 was filed by Respondents No. 4 and 5 herein who are Defendants 1 and 3 in O.S. No.666 of 2001 and Appeal Suit No.9 of 2013 was filed by the Appellant herein. Both the appeals were allowed and the matter was remitted back to the Trial Court.
C.M.A. Nos. 3041 of 2014 and 3042 of 2014 were filed by Respondents No. 1 and 2 herein (Plaintiffs No. 2 and 3 in the suit) and C.M.A. Nos.3043 of 2014 and 3044 of 2014 were filed by Respondents No. 4 and 5 herein (Defendants No. 1 and 3 in the suit) in the High Court. The High Court allowed the CMAs, set aside the judgment and decree of the First Appellate Court and granted a preliminary decree in the suit for partition by declaring that the Plaintiffs were entitled for 5/8 share jointly and Defendants 1, 3 and 4 were entitled to 1/8 share in the suit house property.
Finding of the Court:
High Court committed an error in interpreting judgment of the Supreme Court.
Result: Appeals allowed.
JUDGMENT :
L. Nageswara Rao, J.
Leave granted.
The Appellant is the Fourth defendant in O.S. No. 666 of 2001 filed by her brother Sri A.V. Venkataraman for partition and allotment of a share of 6/20 in the property in the Court of Additional Subordinate Judge, Chengalpattu. Defendants No. 1 to 3 are the sisters of the Appellant. It was averred in the plaint that the suit property was an ancestral property inherited by the father of the Plaintiff, Sri A.V. Venkataraman, by a partition deed dated 27.04.1954. Sri A.V. Venkataraman died in 1961 leaving his wife Smt. A.V. Rathnabai, the Plaintiff and the defendants. According to the Plaintiff he was entitled to a share of 6/20, the Second and Fourth defendants 6/20 share each and First and Third defendants 1/20 share each of the suit property. Section 29 A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 was inserted w.e.f. 15.03.1989 by which the daughter of a coparcener shall by birth became a coparcener in her own right in the same manner as a son and was given the same rights in the coparcenery property which the son had. Defendants 1 and 3 married prior to the amendment and so they were entitled to 1/20 share. The Appellant married after the amendment and Defendant No.2 did not marry as she was paralyzed in an accident due to which they were entitled to 6/20 share. The Appellant filed a written statement claiming a share of 36/90.
2. The Additional Sub Judge, Chengalpattu by his judgment dated 27.07.2004 decreed the suit holding that the Plaintiff, the Second Defendant and the Fourth defendant (Appellant) were entitled to a share of 6/20 each and First and Third defendants were entitled to a share of 1/20 each in the suit property. The Appellant preferred A.S. No. 39 of 2006 in which she stated that the Plaintiff omitted other properties which were available for partition and that the suit for partial partition was bad in law. The Principal District Judge, Chengalpattu dismissed A.S. No. 39 of 2006 by a judgment dated 20.11.2006. The Appellant approached the High Court of Judicature at Madras by filing Second Appeal No.1168 of 2007 which was also dismissed on 01.11.2007.
3. Aggrieved by the judgment of the High Court, the Appellant filed Civil Appeal No. 5053 of 2009 which was allowed by this Court by a judgment dated 03.08.2009. This Court examined the scope of Section 29 A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 and held that the daughters who got married after 1989 would have equal share as that of a son. After a critical examination of the registered deed of partition, this Court held that all the immovable properties inherited by Sri A.V. Venkataraman were not included in the suit schedule. Finally, this Court remitted the matter to the Trial Court for the reason that all the properties which were inherited by the Appellant’s father by virtue of the registered deed of partition dated 27.04.1954 were not included in the suit schedule.
4. The Additional Subordinate Judge, Chengalpattu by his judgment dated 08.09.2010 passed a preliminary decree holding that the Appellant is entitled to 1/4 share of the suit property (house) and that the Plaintiff is entitled to remaining 3/4 share. The above judgment was passed by the Trial Court on re-examination of the material on record after finding that there was no documentary proof of availability of any additional assets for partition. It is relevant to mention that the original Plaintiff, A.V. Anantharaman, died on 20.04.2010 during the pendency of O.S. No. 666 of 2001. Respondents No. 1, 2 and 3 herein were brought on record as LRs of the original Plaintiff on 21.07.2010 as Plaintiffs No. 2, 3 and 4.
5. Appeal Suit No. 3 of 2011 was filed by Respondents No. 4 and 5 herein who are Defendants 1 and 3 in O.S. No.666 of 2001 and Appeal Suit No.9 of 2013 was filed by the Appellant herein in the Court of Principal District Judge, Chengalpattu, assailing the judgment of the Additional Subordinate Judge, Chengalpattu in
