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2012 (3) LW 632
High Court of Judicature at Madras
M. VENUGOPAL
Kannan
Versus
Maragathammal & Others
Second Appeal No. 654 of 2003
Second Appeal No. 654 of 2003
Decided on: 28-06-2012
The Hindu Succession Act, 1956 (Central) supersedes Tamil Nadu Amendment Act 1 of 1990. In view of the Hindu Succession (Amendment) Act, 2005, Second and Third Respondents/Second and Fourth Plaintiffs are not entitled for maintenance, claim etc., since they have become coparceners with effect from 09.09.2005.
Fact of the Case:
The First Respondent/First Plaintiff is the legally wedded wife of the Appellant/First Defendant. Respondents 2 and 3/Plaintiffs 2 and 4 and the Third Plaintiff are the daughters and son of the First Respondent/First Plaintiff and the Appellant/First Defendant, born out of their legal wedlock. Other than the Second Respondent/Second Plaintiff, Third Respondent/Fourth Plaintiff and Third Plaintiff, there are two daughters of the First Respondent/First Plaintiff and the Appellant/First Defendant viz., Tamizselvi and Kalayarasi. The Third Plaintiff is not entitled to any share in the suit properties during the life time of the Third Defendant. He is not entitled to maintain the suit for partition in the life time of the Third Defendant, and that too against the Third Defendant, is liable to be dismissed.
Finding of the Court:
The suit properties are the ancestral joint family properties of the Appellant/First Defendant, the Third Defendant and the Third Plaintiff and further it is held that Plaintiffs 2 to 4 are the daughters as per the Tamil Nadu Amendment Act, the unmarried daughters/Plaintiffs 2 and 4 are entitled to equal share over the suit properties and accordingly, a decree has been passed holding that the First Respondent/First Plaintiff is entitled to a sum of Rs.150/-per month towards maintenance, clothing and residence from July 1975 to till her life time (excluding the period from December 1985 to December 1988 for a period of three years) and a charge has been created in respect of 1/4th share of the Appellant/First Defendant in the suit properties and also passed a preliminary decree of partition directing the Appellant/First Defendant to divide the items 1 to 11 and allot 3/4th share jointly to Plaintiffs 2 to 4 with costs.
Issues: 1. Whether the contents in Ex.A18 the copy of the sale deed executed by Ellan alias Ellappan will amount to conclusive proof that the property is ancestral property? 2. Whether the Courts below are justified in allotting the share to the Second Respondent/Second Plaintiff viz., Chinnaponnu who has got married prior to 26.05.1989 before the commencement of amended Act, when it is clearly admitted in the plaint itself, even assuming itself as ancestral properties? 3. When the properties allotted to the son Srinivasan-Third Plaintiff, who died during the pendency of the First Appeal, devolve upon his heirs either by succession or survivorship?
Ratio Decidendi: The Hindu Succession Act, 1956 is a Central Act and it overrides Tamil Nadu Act 1 of 1990, which has inserted Chapter IIA Succession by survivorship 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 the 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; 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 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, notwithstnading 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 Amendment) Act, 1989.
Final Decision: The Second Appeal is allowed in part, leaving the parties to bear their own costs. The Appellant/First Defendant (Husband) is directed to pay a sum of Rs.150/- per month towards maintenance, clothing and residence to the First Respondent/ First Plaintiff (wife) from July 1975 till the date of death of her son (Srinivasan-Third Plaintiff) (excluding the period from December 1985 to December 1988, i.e. for a period of three years). Accordingly, a charge is created in respect of 1/4th share of the Appellant/First Defendant in the suit properties. The Second Respondent/Second Plaintiff and the Third Respondent/Fourth Plaintiff are allotted 1/4th share each in the suit properties, since they have become sharers. But since a substantial relief of their respective shares have been allotted by this Court in respect of the suit properties by means of partition, it is held by this Court that they are not entitled to claim any maintenance amount etc., by resorting to the provisions of the Hindu Adoptions and Maintenance Act, 1956. Accordingly, the Judgment and Decree of the trial Court in the main suit in O.S.No.482 of 1982 dated 04.12.2001 and the Judgment and Decree in A.S.No.25 of 2002 dated 11.12.2002 of the First Appellate Court stand modified.
1. The Appellant/First Defendant has preferred the present Second Appeal as against the Judgment and Decree dated 11.12.2002 in A.S.No.25 of 2002 passed by the Learned Principal District Judge, Tiruvannamalai in affirming the Judgment and Decree dated 04.12.2001 in O.S.No.482 of 1982 passed by the Learned District Munsif No.1, Tiruvannamalai.
2. A resume of germane averments of the Plaint (filed by the Respondents/Plaintiffs) are hereunder:-
The First Respondent/First Plaintiff is the legally wedded wife of the Appellant/First Defendant. Respondents 2 and 3/Plaintiffs 2 and 4 and the Third Plaintiff are the daughters and son of the First Respondent/First Plaintiff and the Appellant/First Defendant, born out of their legal wedlock. Other than the Second Respondent/Second Plaintiff, Third Respondent/Fourth Plaintiff and Third Plaintiff, there are two daughters of the First Respondent/First Plaintiff and the Appellant/First Defendant viz., Tamizselvi and Kalayarasi. The Third Defendant is the father of the Appellant/First Defendant. The marriage took place about 11 years ago at Kamalaputhur Village as per caste, custom and rites. From the date of marriage, the First Respondent/ First Plaintiff and the Appellant/First Defendant were living together as husband and wife.
3. One son and one daughter viz., Second and Third Plaintiffs are in the custody of the First Respondent/First Plaintiff while other two daughters are in the custody of the Appellant/First Defendant. The Appellant/First Defendant became addicted to drink about four or five years ago and from that time onwards, he has completely neglected the family and began to treat the Plaintiffs cruelly and used to beat them mercilessly. The Third Defendant joined hands with the Appellant/First Defendant and started to ill-treat the Plaintiffs. About two years ago, the cruelty meted out by the First and Third Defendants exceeded the limits and in spite of the same, the First Respondent/First Plaintiff bore with them with the fond hope that good sense would prevail upon the First and Second Defendants.
4. About 2 ½ years ago, the First Respondent/First Plaintiff's father died. When the First Respondent/First Plaintiff sought a permission of the First and Second Defendants to attend the funeral, they refused the permission for the same. When the First Respondent/First Plaintiff insisted for permission, the First and Third Defendants beat her and drove her out along with the Second and Third Plaintiffs. Even after, the death obsequies of the First Respondent/First Plaintiff's father, the First and Third Defendants had not come. Afterwards, when the First Respondent/First Plaintiff intended to go back to her husband's house, she was threatened with dire consequences and therefore, apprehending danger to her life, she remained in her mother's house with the Second and Third Plaintiffs and eking out her livelihood by doing coolie work. In spite of several mediations, the Appellant/First Defendant had not agreed to take back the Plaintiffs.
5. The Appellant/First Defendant married the Fourth Respondent /Second Defendant and he is living with her. The marriage between the Appellant/First Defendant is void in law. On that sole ground, the Appellant/First Defendant is to provide separate maintenance to the First Respondent/First Plaintiff.
6. Because of the Appellant/First Defendant's Second marriage, it is impossible for the First Respondent/First Plaintiff to go and live with him. He had not cared to provide food and shelter and also without any reasonable cause neglected to maintain the Plaintiffs. As such, the Plaintiffs were entitled to separate maintenance. Moreover, the properties mentioned in the 'A' schedule were the joint family properties of the Third Plaintiff and the First and Third Defendants, in which the Third Plaintiff was entitled to 1/4th share. The Appellant/First Defendant was entitled to 1/4th share and the Third Defendant was entitled half share. Therefo
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