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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Balakrishnan & Ors. - Appellants
Versus
Selvi & Ors. - Respondents
Second Appeal No. 725 of 2001
Decided On : 23-08-2017
Hindu Marriage Act, 1955 - Section 16(3) - Court Fees and Suit Valuation Act - Section 37(1) and 37(2) - Tamil Nadu Act 1/1990 - Section 29A - Hindu Succession Act, 1956 - Section 29-A and 8 - This second Appeal is directed against reversing judgment of t lower appellate court in suit for partition and separate possession, decreed in favour of plaintiff - For sake of brevity parties are described as per their status and rank as found in the plaint - Case of plaintiff is that suit properties are ancestral properties of one , who is arrayed as first defendant - Plaintiff is daughter of the second wife - She was not given any share in suit property, when defendants 1 to 5 divided joint family properties among themselves - Even before said partition, first defendant has sold some of suit properties to defendants 6,7 and 8 through sale deeds particularly, property in S.No.227/3C - Out of total 40 cents of land, 15 cents of land has been allotted to first defendant through partition deed and from and out of the 15 cents, first defendant has sold 4 cents of land to defendants 6,7 and 8, which does not bind plaintiff - Hence, as one of sharers of the ancestral property, she is entitled for 1/6th share in the suit schedule property – Held, lower appellate Court has failed to note that on the date of filing suit, there was no cause of action to claim partition of suit property held by first defendant - In view of fact that illegitimate children can claim right over parent property only after demise of parent and not before that, even subsequent amendment to the Hindu Succession Act, 1956 by introduction of Section 29-A does not gives such right to illegitimate children -Lower appellate Court on three counts erred in appreciating law governing facts of case - Firstly, holding entire suit properties has ancestral properties without any materials - Secondly, While it has been pleaded and established that some of suit properties are not properties of first defendant and even after disclosure of the persons, who own those properties, plaintiff has failed to make necessary amendment in the prayer - Despite such failure, trial Court has mechanically allowed suit for partition in respect of entire suit property, without impleading some of owners of suit property -Thirdly, spirit of introduction for conferring legitimacy through legal fiction to children otherwise illegitimate and spirit of introduction of Section 29-A of the Hindu Succession Act, 1956 accepting right of ligitimate daughter on par with male co-parcener has not been properly understood by lower appellate Court - For all these reasons, this Court is constrained to allow second appeal holding substantial questions of law in favour of appellant -Accordingly, second appeal is allowed.
This second Appeal is directed against the reversing judgment of the lower appellate court in the suit for partition and separate possession, decreed in favour of the plaintiff.
2. For the sake of brevity the parties are described as per their status and rank as found in the plaint.
3. The case of the plaintiff is that the suit properties are the ancestral properties of one Ethiraj Ramanuja Dasar, who is arrayed as the first defendant. The plaintiff is the daughter of the second wife viz., Andal ammal. She was not given any share in the suit property, when the defendants 1 to 5 divided the joint family properties among themselves on 28.09.1990. Even before the said partition, the first defendant has sold some of the suit properties to the defendants 6,7 and 8 through sale deeds particularly, the property in S.No.227/3C. Out of total 40 cents of land, 15 cents of land has been allotted to the first defendant through partition deed and from and out of the 15 cents, the first defendant has sold 4 cents of land to defendants 6,7 and 8, which does not bind the plaintiff. Hence, as one of the sharers of the ancestral property, she is entitled for 1/6th share in the suit schedule property.
4. The defendants 1,6 to 8 have contested the suit whereas the defendants 3 to 5 remained ex-parte.
5. According to the written statement filed by the defendants, the first defendant married one Lakshmi ammal in the year 1942. Through her, he had three sons and two daughters. During the life time of Lakshmi ammal, the first defendant married Andal ammal on 17.06.1956. Through the second wife Andal ammal, the first defendant had two sons and four daughters. Since the second marriage was solemnised, after Hindu Marriage Act, 1955 came into force, the marriage of the first defendant with Andal ammal is a void marriage and the children born through her including the plaintiff are illegitimate children.
6. Further, it is stated that only 8.30 cents of land was devolved upon him from his father through partition deed dated 12.07.1954. The father of the first defendant bequeath 7.78 cents of land through a Will to the first defendant. The rest of the property were purchased by the first defendant from out of his own earning. The income from the property inherited from his father is not sufficient to buy other properties. While so, the plaintiff, who is the illegitimate daughter born through the void marriage, has no right over the suit property to seek partition more so, when her father the first defendant is alive.
7. As far as the suit properties are concerned, the property in S.No.227/3c was purchased by the first defendant and his brother Govinda ramanuja Dasar jointly on 16.11.1961 from one Appvu pillai and others. Thereafter, 5 cents of land was sold to 8th defendant on 21.05.1973. As far as the properties under S.No.148/4 and 146/8 are concerned, they were improvised from the earning of the first defendant by digging well and fixing electrics motor pump. As far as the property in S.No.94 is concerned, it is a poromboke land. During the partition between the first defendant and his children, one of his son viz, Srinivasan has relinquished his right over the property, after receiving a sum of Rs.25,000/-. The first defendant owns 10 cents of land in S.No.146/1 shown as item No.5 in the suit schedule property and the remaining 32 cents are with Krishnan, Arumugam and Padmavathy. Whereas the plaintiff has included in the property, which is not owned by the first defendant and without impleading the title holder of the suit property.
8. The persons, who have purchased from the first defendant namely, defendants 7 and 8 have put up construction in their respective portion and the plaintiff, who has no right over the property, can not object their title. Further, it was also contended by the defendants that when the plaintiff is not in possession of the suit property, the Court fee ought to have been fixed, which is not in accordance with the under Cou
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