Madras High Court
Marammal vs Rajeswari on 11 January, 2021
CRP.PD.No.2763 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.2763 of 2003 and
CMP.No.20878 of 2003
1.Marammal
2.Amsaveni ..Petitioners
Vs.
1.Rajeswari
2.Muthukumar
Rukmani (died)
3.M.Ravindran
4.M.Jayaram
5.M.Vijayakumar ..Respondents
(cause title accepted vide
order dated 19.11.2003 made in
CMP.No.18447 of 2003)
(Defendants 3,4 & 5 have remained
exparte in the suit and hence they are
given up in the above revision petition)
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India against the preliminary judgment and decree
dated 15.7.1994 in OS.No.372 of 1987 on the file of the Subordinate
Judge's Court, Coimbatore.
1/10
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CRP.PD.No.2763 of 2003
For Petitioners : Mr.Mukunth
for M/s.Sarvabhauman Assts.
For Respondents
R1 & 2 : Notice served
R3 to 5 : Given up
ORDER
This Civil Revision Petition is directed as against the
preliminary judgment and decree passed in OS.No.372 of 1987 on the
file of the Subordinate Court, Coimbatore dated 15.07.1994.
2. The respondents 1 and 2 are the plaintiffs. They filed suit
for partition, in which the petitioners are defendants 1 and 5. Before
the trial court, they were set exparte and the preliminary exparte
judgment and decree was passed on 15.07.1994. Immediately, the
counsel who entered appearance on behalf of the petitioners /
defendants 1 and 5 filed petition to set aside the exparte decree within
a period of 30 days. Subsequently, it was returned for certain
compliance and they returned the papers, which mixed up with other
bundles. Therefore, they could not able to re-present the set aside the
exparte decree petition in time. They were able to re-present the
petition with delay of 2104 days in filing the set aside the exparte
decree. The said petition was dismissed by the trial court. Aggrieved
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CRP.PD.No.2763 of 2003
by the same, the petitioner preferred Civil Revision Petition before this
Court in CRP.NPD.No.1179 of 2002.
3. When the matter was coming for admission, this Court
directed the parties to be present for settling the matter since this
Court found no merits in the Civil Revision Petition. When the
petitioners were ready and willing to settle the matter, the
respondents 1 and 2, namely the plaintiffs were not interested to
settle the matter and as such they did not appear before this Court. At
that juncture, the petitioners withdrew the Civil Revision Petition and
the same was dismissed as withdrawn by order dated 01.11.2002.
4. On perusal of the records, the petitioners also failed to file
any appeal suit as against the judgment and decree passed in
OS.No.372 of 1987. Immediately after dismissal of the Civil Revision
Petition, the petitioners preferred this Civil Revision Petition under
Article 227 of the Constitution of India challenging the exparte decree
passed by the trial court on the ground that the shares allotted by the
trial court are not proper. Even after dismissal of the Civil Revision
Petition in CRP.NPD.No.1179 of 2002, the petitioners did not take any
step to file an appeal suit as against the judgment and decree passed
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CRP.PD.No.2763 of 2003
by the trial court. Therefore, only to save the limitation, the petitioners
have filed the present Civil Revision Petition. In support of his
contention, the learned counsel for the petitioners relied upon the
judgment in the case of Annapoorni Vs. Janaki reported in 1995-1-
L.W.141, wherein this Court has held as follows:
"9. The facts set out by me earlier would clearly show
that the decree in C.S. 170 of 1984 is unsustainable in law. I
have referred to the contents of the plaint. There is no
averment in the plaint that the plaintiff husband
bequeathed the property to the plaintiff by testament or
conveyed the property to the plaintiff by any other
instrument. The only basis of the claim of the plaintiff is
that she is a Class I heir under the provisions of the Hindu
Succession Act. By the same token, the mother of the
husband of the plaintiff would equally be a Class I heir.
There being no other heir of the deceased, the plaintiff and
the defendant would equally be entitled to the property.
Strangely, the prayer in the plaint is to the effect that the
plaintiff is to be declared entitled to the entire property.
Counsel for the plaintiff should have advised the plaintiff to
claim only such relief to which she would be entitled, to
law. He did not do so. The defendant did not point out in
the written statement that the plaintiff would be entitled
to only one half share even on the basis of the averments in
the plaint, probably, because, the defendant wanted to
defeat the claim of the plaintiff in entirety. One plea taken
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CRP.PD.No.2763 of 2003
by her is that the plaintiff had lost her status as the wife of
the deceased by a divorce according to caste custom.
Another plea is that the property was purchased by her with
her own funds in the name of her son when he was a minor,
and he was not entitled to any interest in the property.
11. When this Court finds that a decree suffers from
an error of law apparent on the fact of the record owing to
non-application of mind of the Court, to the relevant
principles of law, this Court cannot keep silent and allow
the decree to be in force, particularly, when it causes grave
injustice. There can be no doubt whatever that under the
Hindu Succession Act, certain persons are designated as Class
I heirs and all of them are entitled to succeed to the estate
of a deceased Hindu. There is no earthly reason for
depriving the mother of the deceased of her legitimate
share in the estate which in this case happens to be a
moiety. This is a typical case of miscarriage of justice which
should be rectified the moment it comes to the notice of
this Court. It is only for that reason, I am exercising my
powers under Section 115 of the Code of Civil Procedure and
Article 227 of the Constitution of India."
On perusal of the said judgment, the petitioner therein preferred the
above Civil Revision Petition as against the petition filed under Section
47 of CPC in the execution proceedings. The petitioner after
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CRP.PD.No.2763 of 2003
exhausting appeal remedy in the execution proceedings, filed petition
under Section 47 of CPC challenging the decree passed by the trial
court. Therefore, in the case on hand, straightaway they filed the
present Civil Revision Petition under Article 227 of the Constitution of
India without even exhausting the appeal remedy. Therefore, the
above judgment relied upon by the learned counsel for the petitioners
is not applicable to the case on hand. He further relied upon the
judgment in the case of Vineeta Sharma Vs. Rakesh Sharma and
others reported in 2020 (5) CTC 302, wherein the Hon'ble Supreme
Court of India has held as follows:
1. The question concerning the interpretation of
section 6 of the Signature Not Verified Hindu Succession
Act, 1956 (in short, 'the Act of 1956') as amended Digitally
signed by Narendra Prasad Date: 2020.08.11 14:13:54 IST
Reason:
by Hindu Succession (Amendment) Act, 2005 (in short, 'the
Act of 2005') has been referred to a larger Bench in view of
the conflicting verdicts rendered in two Division Bench
judgments of this Court in Prakash & Ors. v. Phulavati &
Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr.
v. Amar & Ors., (2018) 3 SCC 343. In other connected
matters, the question involved is similar; as such, they have
also been referred for hearing along.
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CRP.PD.No.2763 of 2003
2. In the case of Lokmani & Ors. v. Mahadevamma &
Ors., [S.L.P.(C) No.6840 of 2016] the High Court held
that section 6, as amended by the Act of 2005, is deemed to
be there since 17.6.1956 when the Act of 1956 came into
force, the amended provisions are given retrospective
effect, when the daughters were denied right in the
coparcenary property, pending proceedings are to be
decided in the light of the amended provisions. Inequality
has been removed. The High Court held that the oral
partition and unregistered partition deeds are excluded
from the definition of 'partition' used in the Explanation to
amended Section 6(5).
9. In Danamma (supra), this Court held that the
amended provisions of section 6 confer full rights upon the
daughter coparcener. Any coparcener, including a daughter,
can claim a partition in the coparcenary property.
Gurunalingappa died in the year 2001, leaving behind two
daughters, two sons, and a widow. Coparcener's father was
not alive when the substituted provision of section 6 came
into force. The daughters, sons and the widow were given
1/5th share apiece.
Therefore, the shares allotted to the respondents 1 and 2 can be
agitated in the final decree proceedings. Though this Court finds no
merits in the present Civil Revision Petition, this Court is inclined to
give liberty to the petitioners to agitate the shares allotted as per the
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CRP.PD.No.2763 of 2003
exparte judgment and decree in OS.No.372 of 1987 in the final decree
proceedings.
5. With the above observations, this Civil Revision Petition is
dismissed. Consequently, connected miscellaneous petition is closed.
No order as to costs.
11.01.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
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CRP.PD.No.2763 of 2003
To
The Subordinate Judge's Court,
Coimbatore.
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CRP.PD.No.2763 of 2003
G.K.ILANTHIRAIYAN,J.
lok
CRP.PD.No.2763 of 2003
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CRP.PD.No.2763 of 2003
11.01.2021
C.R.P. PD.No.2763 of 2003
and
C.M.P.No.20878 of 2003
G.K.ILANTHIRAIYAN,J.
The above matter is listed today under the caption “for being
mentioned”. It is clarified that paragraph No.4 of this Court's earlier order
dated 11.01.2021 in C.R.P. PD.No.2763 of 2013, shall be modified to the
following effect after the sub-para starting with “on a perusal of the said
judgment ....
“129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of
the Hindu Succession Act, 1956 confer status of coparcener
on the daughter born before or after amendment in the same
manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born
earlier with effect from 9.9.2005 with savings as provided
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CRP.PD.No.2763 of 2003
in Section 6(1) as to the disposition or alienation, partition or
testamentary disposition which had taken place before 20th
day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not
necessary that father coparcener should be living as on
9.9.2005.
(iv) The statutory fiction of partition created by proviso
to Section 6 of the Hindu Succession Act, 1956 as originally
enacted did not bring about the actual partition or disruption
of coparcenary. The fiction was only for the purpose of
ascertaining share of deceased coparcener when he was
survived by a female heir, of ClassI as specified in the
Schedule to the Act of 1956 or male relative of such female.
The provisions of the substituted Section 6 are required to be
given full effect. Notwithstanding that a preliminary decree
has been passed the daughters are to be given share in
coparcenary equal to that of a son in pending proceedings for
final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation
to Section 6(5) of the Act of 1956, a plea of oral partition
cannot be accepted as the statutory recognised mode of
partition effected by a deed of partition duly registered under
the provisions of the Registration Act, 1908 or effected by a
decree of a court. However, in exceptional cases where plea
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CRP.PD.No.2763 of 2003
of oral partition is supported by public documents and
partition is finally evinced in the same manner as if it had
been affected by a decree of a court, it may be accepted. A
plea of partition based on oral evidence alone cannot be
accepted and to be rejected outrightly.
2. Accordingly, the Registry is directed to issue a fresh order copy in
C.R.P. PD.No.2763 of 2013 dated 11.01.2021 after making necessary
corrections.
09.12.2021
kv
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CRP.PD.No.2763 of 2003
G.K.ILANTHIRAIYAN,J.
Kv
C.R.P. PD.No.2763 of 2003
09.12.2021
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