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 by her is that the plaintiff had lost her status as the
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CRP.PD.No.2763 of 2003
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
exhausting appeal remedy in the execution proceedings, filed petition
under Section 47 of CPC challenging the decree passed by the trial
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CRP.PD.No.2763 of 2003
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.
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
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CRP.PD.No.2763 of 2003
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
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
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CRP.PD.No.2763 of 2003
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
11.01.2021
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