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2012 Supreme(Mad) 681
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN
K. Revathi & Others
Versus
G. Diwakar & Others
CMA.Nos.1087 & 3341 of 2009
Decided On :Decided on : 09-02-2012
For the Appellants:K.V. Sundararajan, M.P. Karunakaran, Advocates.
For the Respondents - K.V. Sundararajan, T.R. Devaspm, Advocates.
The main legal point established in the judgment is the maintainability of the Plaintiff's right to seek partition of the residential house and the inapplicability of Section 29A to the self-acquired property.
Headnote:
Partition - Hindu Succession Act - Section 23, Section 29A - The court discussed the applicability of Section 23 and Section 29A of the Hindu Succession Act in the context of the right to claim partition in a dwelling house. The court referred to the amendment deleting Section 23 and the interpretation by the Supreme Court, concluding that the right of the Plaintiff to seek partition of the residential house is maintainable. The court also emphasized that Section 29A has no application to the self-acquired property, and the first appellate court erred in remanding the matter without considering and discussing the evidence on record.
Fact of the Case:
The suit involved a dispute over the partition of a property originally belonging to the father of the Plaintiff and the 1st Defendant. The Plaintiff sought partition of her half share and permanent injunction, which was decreed in part by the Trial Court but set aside and remanded by the first appellate court.
Finding of the Court:
The court found that the Plaintiff's right to seek partition of the residential house is maintainable, and Section 29A has no application to the self-acquired property. The first appellate court erred in remanding the matter without considering and discussing the evidence on record.
Issues: The issues revolved around the applicability of Section 23 and Section 29A of the Hindu Succession Act, the validity of the settlement deed, and the entitlement of the Plaintiff to seek partition in the suit property.
Ratio Decidendi: The court emphasized the maintainability of the Plaintiff's right to seek partition of the residential house and the inapplicability of Section 29A to the self-acquired property. It also highlighted the error of the first appellate court in remanding the matter without proper consideration of the evidence.
Final Decision: The Civil Miscellaneous Appeals were allowed, setting aside the order of remand by the first appellate court and remanding the matter for disposal on merits and in accordance with the law.
1. These Civil Miscellaneous Appeals are filed against the Judgement and Decree dated 24.6.2008 made in AS.Nos.592/2007 and 59/2008 by the learned IV Additional Judge, City Civil Court, Chennai, remanding the suit in OS.No.4430/2005 on the file of the learned VII Assistant Judge, City Civil Court, Chennai, for fresh trial.
2. The above said suit was filed by the Plaintiff, who is the Appellant in CMA.No.1087/2009, for partition of her half share and for permanent injunction, restraining the 1st Defendant, who is the 1st Respondent in CMA.No.1087/2009 from interfering with her peaceful possession and enjoyment of the property. As regards the relief of partition, the suit was dismissed and as regards the other relief of permanent injunction, the suit was decreed. As against the same, the Plaintiff filed an appeal in AS.No.592/2007 and the Defendants 2 and 3, who are the Respondents 2 and 3 in CMA.No.1087/2009 also filed an appeal in AS.No.59/2008. The first appellate court set aside the decree passed by the Trial Court and remanded the matter back to the Trial Court for fresh trial, after framing necessary issues and further directed the Trial Court to dispose of the suit in accordance with law. As against the said order of remand, these appeals have been filed.
3. The short facts, which are germane to the disposal of these appeal, are as follows-
The suit property originally belonged to one Umamaheswar Rao, the father of the Plaintiff and the 1st Defendant. He died on 17.10.1983. Since Umamaheswar Rao died intestate, his wife Rajeswari, the daughter of Umamaheswararao, namely, the Plaintiff and his son, the 1st Defendant were each entitled to 1/3rd share in the suit property. During the life time of Rajeswari, she settled her 1/3rd share in favour of her grand children, the Defendants 2 and 3 herein, who are the children of the Plaintiff. As per the settlement deed, the Defendants 2 and 3 were entitled for 1/3rd share in the suit property. The Plaintiff is residing in the suit property and the 1st Defendant is also residing in a portion of the suit property. The Plaintiff has been demanding partition and since the 1st Defendant was attempting to disturb the possession of the Plaintiff and refusing to partition the suit property, the Plaintiff filed the present suit for partition and for permanent injunction.
4. The said suit was resisted by the 1st Defendant, inter alia, stating that during the life time of his father, he expressed his willingness that the entire suit property should go to the 1st Defendant. The suit property is a house property and therefore, it is incapable of division. The settlement deed executed by Rajeswari, the mother of the 1st Defendant was denied and disputed. According to him, the Plaintiff is only a permissive occupant, living in the capacity as his sister and she is not entitled to any share in the suit property.
5. The Defendants 2 and 3 contested the suit, stating that they are entitled to 1/3rd share of Rajeswari by virtue of the settlement deed dated 20.4.2001.
6. On the above pleadings, the Trial Court framed necessary issues and during the trial, the Plaintiff examined herself as PW.1 and marked Ex.A1 to Ex.A5. On the side of the 1st Defendant, he was examined as DW.1 and marked Ex.B1 to Ex.B4. The Defendants 2 and 3 were represented by their father Kulasekaran and he was examined as DW.2.
7. Before the Trial Court, it was contended by the 1st Defendant that as per Section 23 of the Hindu Succession Act, the female heir namely, the Plaintiff cannot have a right of partition over the dwelling house and therefore, contended that the suit is not maintainable. It was concluded by the Trial Court that the suit was filed even before the amendment whereby Section 23 was deleted and it has no retrospective effect and therefore, as per Section 23 of the Hindu Succession Act, the Plaintiff was not entitled to any relief. It also held that as per Section 29A of the Hindu Succession Act, s
