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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P.R. SHIVAKUMAR, J.
K.M. Thangavel & Others
Versus
K.T. Udayakumar & Another
S.A. No. 495 of 2012 M.P. Nos. 1 of 2012, 1 of 2013 & 2 of 2013
Decided on: 28-02-2014
Hindu Succession Act, 1956 - Section 6 - Amendment - Hindu Succession (Amendment) Act, 2005 - Applicability - Daughters of coparcener who died prior to amendment - Whether became coparceners - Conditions.
Fact of the Case:
Plaintiff, son of first defendant, filed suit for partition and separate possession of his 1/2 share in suit property. First defendant and his two sisters were impleaded as defendants 1 to 3. Defendants 3 to 5, sisters of plaintiff, were impleaded as defendants 4 and 5. Suit property was purchased by paternal grandfather of plaintiff. First defendant inherited entire property on death of his father. Plaintiff was born after Hindu Succession Act, 1956 came into force. Trial court held that only 1/3rd of suit properties was ancestral property in hands of first defendant and plaintiff and defendants 1 and 3 to 5 became entitled to equal shares. Trial court granted preliminary decree for partition holding plaintiff to be entitled to 1/15th share. On appeal, lower appellate court reversed trial court's judgment and decreed suit as prayed for granting preliminary decree for division of suit property into two equal shares and allotment of one such share to plaintiff. Defendants 1, 3 and 4 filed second appeal.
Finding of the Court:
Lower appellate court erred in holding that daughters of first defendant were not entitled to benefit of amendment made by Central Act (Act 39 of 2005) as they had got married even prior to date on which State Amendment was brought into force. Suit property in hands of first defendant was ancestral property in which his son, plaintiff, acquired right by birth. Sisters of first defendant had no right in property left by their father. Entire property inherited by first defendant from his father was his ancestral property. Plaintiff and first defendant were coparceners entitled to equal shares as per then prevailing law. Amendment introduced to rule of succession regarding properties belonging to Hindu Mitakshara coparcenery in Tamil Nady by introducing new section 29-A by Act 1/1990 made daughters also coparceners along with father, with rider that daughters who had got married prior to 25.03.1989 would not become coparceners. Parliament itself amended Section 6 of Hindu Succession Act, 1956 by enacting Hindu Succession (Amendment) Act 2005 (Act 39/2005). Unlike Tamil Nadu amendment, Central amendment does not prescribe any condition that daughter of coparcener should have remained unmarried before date of commencement of amendment. By amendment, rule of survivorship has been given go by and all daughters of coparcener are made coparceners having right to get share equal to that of son. Daughters of first defendant, including third defendant, got married prior to amendment brought to Hindu Succession Act by Tamil Nadu Act 1/1990. None of them became coparceners entitled to share equal to that of plaintiff by virtue of Hindu Succession (Tamil Nadu Amendment) Act, 1989 (Act 1 of 1990). Hindu Succession (Amendment) Act, 2005 does not make daughters of coparcener, who died before amendment came into force, as coparceners. Daughters of first defendant became coparceners along with their father and brother and each one of them became entitled to 1/15th share. Lower appellate court erred in not considering effect of amendment made by Central Act, namely Hindu Succession (Amendment) Act, 2005 and holding daughters of first defendant not entitled to share as coparceners.
Issues: 1. Whether lower appellate court erred in holding that daughters of first defendant were not entitled to benefit of amendment made by Central Act (Act 39 of 2005) as they had got married even prior to date on which State Amendment was brought into force? 2. Whether suit is bad for non-joinder of necessary parties, in so far as sisters of first defendant were not made parties to suit? 3. Whether lower appellate court committed an error in allowing production of additional documents at appellate stage? 4. Whether judgment of lower appellate court is not in conformity with Order 41 Rule 31 CPC? 5. Whether lower appellate court committed an error in holding that defendants 3 to 5 are not entitled to benefit of amendment to section 6 brought by Act 39 of 2005 and erroneously held that plaintiff is entitled to ½ share in suit property on such misconception of law?
Ratio Decidendi: Daughters of coparcener, who died prior to amendment brought to Hindu Succession Act by Tamil Nadu Act 1/1990, did not become coparceners even though they remained unmarried on cut-off date. Hindu Succession (Amendment) Act, 2005 does not make daughters of coparcener, who died before amendment came into force, as coparceners.
Final Decision: Second appeal allowed. Decree of lower appellate court set aside. Preliminary decree for partition passed by trial court modified by declaring share of plaintiff to be 1/5 and directing division of same from rest. Decree passed by trial court enlarged to cover 1/5th share of plaintiff.
1. The defendants 1, 3 and 4 in the Original Suit are the appellants in the second appeal. The plaintiff in the original suit is the first respondent and the 5th defendant in the original suit is the second respondent in the second appeal. The suit O.S.No.97/2004 was filed by the first respondent herein against the appellants 1 and 2 herein and one Jayalakshmi (since deceased), for the relief of partition and separate possession, claiming ½ share in the suit property and for a permanent injunction. Subsequently, Jayalalkshmi, the mother of the plaintiff died and her two other daughters, namely the 3rd appellant and the 2nd respondent herein were impleaded as defendants 4 and 5.
2. After trial, the learned trial judge, by judgment dated 14.06.2010, decreed the suit in part and granted a preliminary decree for partition holding the first respondent herein/plaintiff to be entitled to 1/5th share alone and directing division of the same from the rest and also granting a permanent injunction not to cause any alienation or encumbrance binding the said share of the first respondent/plaintiff.
3. On appeal in A.S.No.97/2010, the learned lower appellate judge, namely the Principal District Judge, Erode, reversed the judgment of the trial court and decreed the suit as prayed for granting a preliminary decree for the division of the suit property in to two equal shares and allotment of one such share to the plaintiff and also enlarging the decree of injunction so as to cover the said share of the plaintiff as found in the appeal. The said judgment was pronounced by the lower appellate judge on 08.12.2011. As against the said judgment and decree of the lower appellate court dated 08.12.2011, the present second appeal has been filed by the appellants, who were defendants 1, 3 and 4 in the suit, on various grounds set out in the Memorandum of Grounds of Second Appeal.
4. For the sake of convenience and to avoid confusion, the parties are referred to in this judgment in accordance with their ranks in the suit.
5. The plaintiff Udayakumar is the son of the first defendant K.M.Thangavel. Deceased Jayalakshmi (2nd defendant) was the mother of the plaintiff. Defendants 3 to 5 are the sisters of the plaintiff. The suit property was purchased by the paternal grandfather of the plaintiff by name Mariappa Asari, under a registered sale deed dated 24.04.1940. The first defendant Thangavel is the only son of Mariappa Asari, who died intestate on 27.02.1945. The plaintiff was born on 23.05.1957, long after the death of Mariappa Asari and after the Hindu Succession Act, 1956 came into force. The above said facts are not disputed.
6. The case of the plaintiff is that the suit property being an ancestral property in the hands of the first defendant, the plaintiff and the first defendant constituted a coparcenary in respect of the same and the plaintiff and the first defendant were entitled to half share each as coparceners and that hence, he was entitled to claim partition of the suit property into two equal shares and allotment of one such share to him. Out of the properties left by Mariappa Asari and inherited by his son, namely the first defendant, a small portion was settled on Mallika (4th defendant) by the first defendant under a Deed of Settlement dated 05.06.1985. Subsequently, before the filing of the suit, the first defendant executed a Settlement Deed dated 16.02.2004 in favour of defendants 3 to 5. According to the plaintiff, the said Settlement Deed dated 16.02.2004 was not valid and would not be binding the share of the plaintiff. Hence he had prayed for partition of the suit property into two equal shares and allotment of one such share to the plaintiff and also for a permanent injunction as indicated supra.
7. The 5th defendant remained ex-parte and the suit was contested by other defendants, namely defendants 1 to 4. It is the contention of the defendants 1, 3, 4 and the deceased defendant No.2 that the suit property was originally pu
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