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2008 Supreme(Mad) 2261
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN
H. Vasanthi
Versus
H. Madhava Rao & Others
A.S.No.77 of 1998
Decided on : 07-07-2008
For the Petitioner:S.V. Jayaraman, Senior Counsel, S. Rajasekar, Advocate.
For the Respondents:T.V. Ramanujam, Senior Counsel, D.T. Janardhanan, Advocate.
The plaintiff's acceptance and action upon a previous partition deed precluded her from claiming a share in the property subject to the suit, as per Section 29-A(v) of the Hindu Succession Act.
Headnote:
partition - Hindu Succession Act - Section 29-A(v)
Fact of the Case:
The plaintiff, daughter of D1 and sister of D2, filed a suit for partition of her 1/3rd share in the ancestral property. The property was subject to a sale agreement and a subsequent suit for specific performance, which was decided in favor of the purchaser.
Finding of the Court:
The court held that the plaintiff was not entitled to a decree for partition under Section 29-A(v) of the Hindu Succession Act and that the suit for partial partition was not maintainable. The court also found that the decree and judgment in the previous suit were not liable to be set aside.
Issues: 1. Entitlement to a decree for partition under Section 29-A(v) of the Hindu Succession Act. 2. Maintainability of the suit for partial partition. 3. Whether the decree and judgment in the previous suit should be set aside.
Ratio Decidendi: The plaintiff had accepted her share under a previous partition deed and had sold the allotted property. The court found that she could not claim a share in the property subject to the suit after having accepted and acted upon the previous partition.
Final Decision: The appeal was dismissed, confirming the decree and judgment in the suit for partition.
This appeal has been directed against the decree and judgment in O.S.No.746 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai. The plaintiff is the appellant herein. The plaintiff in O.S.No.746 of 1996 is the daughter of D1 and the sister of D2.
2.The averments in the plaint relevant for the purpose of deciding this appeal runs as follows:-
The plaint schedule property viz., out house with ground and first floor and land of an extent of 1-1/3 ground (one ground and 800 sq.ft.) forming part of Old No.68, Gomathy Narayanaswamy Road, now in New No.24/1, Gomathy Narayanaswamy Raod, T.Nagar, Madras-600 017 within the registration district of Madras-Chengleput, Sub-Registration District of Thyagarayanagar, bearing S.No.59 (part) T.S.No.8633 (part), belongs to the first defendant, father of the plaintiff, by inheritance from his (D1) father Mr. H. Venkat Rao. The father of D1 viz. H. Venkat Rao died interstate leaving his only son D1 as his legal heir. D2 is the son of D1. Besides D2, D1 is having three daughters viz., Geetha, Nalini and Vasantha (plaintiff). D1 and D2 have entered into a sale agreement with D3 on 17. 1974 in respect of the plaint schedule property for a total sale consideration of Rs.62,500/-. On the date of sale agreement itself a sum of Rs.10,000/- was paid by D3 to D1 & D2 by way of advance. According to the deed of agreement dated 17. 1974, D3 has to clear two mortgage debts of the suit property and the balance of amount of sale price has to be paid to the vendors (D1 & D2). As per the sale agreement, sale deed is to be executed within seven months from the date of sale agreement. But the sale deed was not registered within the time stipulated under the sale agreement. The third defendant filed O.S.No.2595 of 1981 before the City Civil Court, Chennai, for specific performance of contract on the basis of sale agreement dated 17. 1974. The suit was dismissed by the trial Court on 11.08.1982. The third defendant / purchaser preferred an appeal before the High Court under Appeal No.165 of 1984, which was allowed. D1 & D.2 are the absolute owners of the entire suit property. The plaintiffs marriage took place after 25th March-1989, the date of which the Hindu Succession (Tamil Nadu Amendment) Act 1989 came into force, under which the plaintiff is entitled to 1/3rd share in the plaint schedule property, which was sold by D1 & D2 to D3 without her consent. Out of three daughters of D1, the plaintiff got married on 09.07.1989. As per Section 29-A of the Amended Act, the plaintiff is entitled to 1/3rd share in the suit property which is the joint Hindu family property of D1. The co-parcenery right in the suit property accrues to the plaintiff on 23. 1989, when the appeal for specific performance of the sale agreement dated 17. 1974 was pending before the High Court. After the marriage on 7. 1989, the plaintiff went to Bangalore to live with her husband, who has been employed there. The cause of action for the suit arose on 13. 1995. The third defendant has no right whatsoever against the plaintiff nor she has any right of 1/3rd of the suit property belonging to the plaintiff. Hence, the suit for partition of plaintiffs 1/3rd share in the plaint schedule property and for consequential injunction.
3.The 1st and 2nd defendants have filed a joint written statement contending as follows:-
The plaintiff is the daughter of D1. She married on 09.07.1989. The suit property is the ancestral property of these defendants. These defendants entered into an agreement of sale with the 3rd defendant herein on 17. 1974 in respect of the plaint schedule property. D3 did not act in accordance with the terms and conditions adumbrated in the agreement of sale. D3 filed a suit for specific performance of contract on the basis of the sale agreement dated 17. 1974 under O.S.No.2595 of 1981 on the file of the IV Additional Judge, City Civil Court, Chennai. The said suit was dismissed on 11.08.1982. Aggrieved by
