Madras High Court
Manimegalai vs Tamizhazhagan on 5 July, 2021
A.S.No.55 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 05.07.2021
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
A.S.No.55 of 2013
and Cros.Obj.No.55 of 2019
1.Manimegalai
2.Sarasvathy
3.Devaki
4.Mallika ... Appellants
-Vs-
1.Tamizhazhagan
2.Kalaivani
3.Ananthavel
4.Bothuraja
5.Purushothaman
6.Manikandan
7.Subramani ...Respondents
PRAYER: Appeal Suit is filed under Section 96 of CPC against the
Judgment and Decree dated 30.10.2012 passed in O.S.No.2 of 2009 on the
file of the II Additional District Judge, Tindivanam.
For Appellants : Ms.RV.Rukmani
for M/s.P.B.Ramanujam
For Respondents : Mr.N.Suresh for R1
No Appearance for R2 to R7
********
1/15
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
JUDGMENT
The Appeal suit is filed against the Judgment and Decree dated
30.10.2012 passed in O.S.No.2 of 2009 on the file of the II Additional
District Judge, Tindivanam.
2. For the sake of convenience, the parties are referred to as per their
ranking in the trial Court.
3. The suit is filed for partition. The case of the plaintiffs is that the
suit properties are self acquired properties of one Ramalinga Gounder. He
died intestate in the year 1999. The plaintiffs 1 to 3 and the second
defendant are his daughters, the fourth plaintiff is his wife and defendants 1
to 3 are his sons. After his demise, the plaintiffs and defendants 1 to 3
jointly enjoyed the possession of the suit properties. While being so,
defendants 1 and 2 were refused their shares in the suit property. As per
Hindu Succession Act, 1956 and Tamil Nadu Amendment Act, 1990 all the
plaintiffs and defendants 1 to 3 are entitled in the 1/7th share in the suit
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
property. Hence, the suit.
4. Resisting the same, the first defendant filed written statement and
stated that the suit properties are the ancestral joint family properties and
owned by his grandfather and his father. Out of the income derived from the
joint family properties some of the properties were purchased by his father.
Hence all the properties are to be treated as joint family properties. In
respect of Item Nos. 1 to 3, 9 to 11 and 13 which are situated in Ahur
Village, are the properties of his grandfather. After his demise his father was
in possession and enjoyment of the same. In respect of Item No. 14, the
property is a Government Poramboke land and as such it is not available for
partition. Therefore, the defendants 1 to 3 are entitled to 1/3rd share and
thereafter in a notional division of 1/3rd share. Out of the father's 1/3 share,
plaintiffs 1 to 4 and the defendants 1 to 3 are entitled to have their equal
share as 1/7 share in the suit properties. In respect of Item Nos. 7 and 18
are concerned, both items were already sold out during the life time of his
father. Item Nos. 14 and 15 are the Government Poramboke land. The third
defendant and second plaintiff are enjoying 1/2 share of the suit properties
and the first defendant is enjoying the remaining 1/2 share of the suit
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
properties. Hence prayed for dismissal of the suit.
3. The third defendant filed separate written statement and stated that
the suit property is a separate self acquired property of his father and after
his demise all are entitled to equal shares and sailing with the case of the
plaintiffs.
4. On completion of the rival pleadings, the learned Trial Judge framed
the following issues:-
"1. Whether the suit properties are the separate
properties of Ramalinga Gounder is true?
2. Whether the Suit is affected by Partial partition
due to non inclusion of property in S.No.123/4?
3. Whether plaintiff is entitled to 4/7 share in the suit
properties?
4. To what other relief the plaintiff is entitled to?
Additional Issues:
1. Whether Item Nos. 1 to 3, 9 to 11 and 13 in
schedule 'B' are the properties of plaintiffs and defendants
Grandfather?
2. Whether Item Nos. 14 and 15 in Schedule 'B' are
Poramboke lands?
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
3. Whether Item Nos. 7 and 8 in 'B' schedule were
sold by their father Ramalingam?"
5. On perusal of the records, on the side of the plaintiffs, P.W.1 to
P.W.3 were examined and 63 documents were marked as Ex.A1 to Ex.A63.
On the side of the defendants, D.W.1 to D.W.3 were examined and no
documents were marked. On considering the oral and documentary
evidences adduced by the respective parties and the submission made by the
learned counsels, the Trial Court partly decreed the suit. Aggrieved by the
same, the plaintiffs preferred this Appeal Suit.
6. The learned counsel for the appellants would submit that the Court
below ought to have granted preliminary decree in favour of the plaintiffs
and the defendants 1 to 3 herein except certain items of the properties and in
respect of all other properties . She further submitted that after Amendment
in the year 2005 all the plaintiffs are entitled to have equal share. In support
of her contention she also relied upon the Judgment 2020(5) CTC 302
Vineeta Sharma -vs- Rakesh Sharma and others.
7. The learned counsel for the first respondent filed cross objection
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
and submitted that the Court below passed preliminary decree 8/42 shares to
each of the plaintiffs in respect of the property Item Nos.1 to 3, 9 to 12, 13,
16, 17 and 1/2 share in Item Nos. 4 and 18 are against law and liable to be
dismissed. Further the plaintiffs 1 to 3 cannot be treated as coparceners
along with the first defendant. The Amendment Act 2005 of the Central Act
alone will govern the case of the plaintiffs and as such they cannot be treated
as coparceners and they are not entitled to have equal share in the suit
properties. Therefore, he prayed to set aside the Judgment passed by the
Court below.
8. Heard, Ms.RV.Rukmani, learned counsel for the appellants and
Mr.N.Suresh, learned counsel for the first respondent.
9. As per Section 6(1) of the Hindu Succession Act, the daughter is
conferred the right. It makes daughter by birth a coparcener and the
property confers the same right in the ancestral property. The conferral of
right is by birth and the rights are given in the same manner with the
insistence of the coparceners as that of the son and she is treated as a
coparcener and the same rights as if she had been a son at the time of birth.
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
In this regard, the Hon'ble Supreme Court of India held the case of 2020(5)
CTC 302 Vineeta Sharma -vs- Rakesh Sharma and others held that:
"56. The prospective statute operates from the date
of its enactment conferring new rights. The retrospective
statute operates backward and takes away or impairs
vested rights acquired under existing laws. A retroactive
statute is the one that does not operate retrospectively. It
operates in futuro. However, its operation is based upon
the character or status that arose earlier. Characteristic
or event, which happened in the past or requisites which
had been drawn from antecedent events. Under the
amended Section 6, since the right is given by birth, that is
an antecedent event, and the provisions operate
concerning claiming rights on and from the date of
Amendment Act.
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
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
earlier with effect from 09.09.2005 with savings as
provided 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 09.09.2005.
(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 Class-I 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
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
effected by a Decree of a Court. However, in exceptional
cases where plea 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 out
rightly."
10. Accordingly, the preliminary decree passed by the Court below is
modified and plaintiffs 1 to 4 and defendants 1 to 3 are entitled to have 1/7th
share in respect of Item Nos. 5, 6, 20, 22 and 1/2 share in Item Nos. 4 and 8.
Insofar as the Item Nos. 1 to 3, 9 to 11, 13, 16, 17 and 1/2 share in Item
Nos. 4 and 8 of 'B' schedule property are concerned, the plaintiffs 1 to 3 and
defendants 1 to 3 are entitled to have equal share namely 8/49 and the fourth
plaintiff is entitled to have 1/49 share. Accordingly, the preliminary decree is
modified.
11. In the result, this Appeal Suit is partly allowed. Cros.Obj.No.55 of
2019 is disposed of. No costs.
05.07.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
rna
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
AS.No.55 of 2013
G.K.ILANTHIRAIYAN, J.
At the instance of the learned counsel for the appellants, today this
matter has been posted under the caption “for being mentioned”.
2. Heard, the learned counsel for the appellants and the respondents.
3. In view of the submission of the learned counsel for the appellants,
it is ordered that the tenth paragraph of the judgment in AS.No.55 of 2013
dated 05.07.2021 shall read as follows:
“10. Accordingly, the preliminary decree passed by
the court below is modified and plaintiffs 1 to 3 and
defendants 1 to 3 are entitled to have 1/7th share each plus
another 1/49th share each in the 1/7th share of their
deceased father in respect of item Nos.5, 6, 20 to 22 and ½
share in Item Nos.4 and 8 in 'B' schedule properties. The 4 th
plaintiff, namely the mother of the plaintiffs 1 to 3 and
defendants 1 to 3 is entitled to only 1/49th share in the
above mentioned items of properties in 'B' schedule
properties. Insofar as item Nos.1 to 3, 9 to 11, 13, 16, 17
and ½ share in Item Nos.4 and 8 of 'B' schedule property
are concerned, the plaintiffs 1 to 3 and defendants 1 to 3
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
are entitled to have 1/6th share each and the fourth plaintiff,
mother will not be entitled to any share in 'B' schedule
properties. Accordingly, the preliminary decree is modified.
4. Accordingly, the Registry is directed to issue a fresh order copy in
AS.No.55 of 2013 dated 05.07.2021 after making necessary corrections.
04.02.2022
lok
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
A.S.No.55 of 2013
G.K.ILANTHIRAIYAN, J.
The above matter is listed today under the caption “for being
mentioned”.
2. Heard the learned counsel for the appellants and the respondents.
3. It is clarified that the paragraph No.3 of this Court's earlier order
dated 04.02.2022 in A.S.No.55 of 2013 shall be modified to the following
effect:-
“10. Accordingly, the preliminary decree passed by
the court below is modified and plaintiffs 1 to 3 and
defendants 1 to 3 are entitled to have 1/7th share each plus
another 1/49th share each in the 1/7th share of their deceased
father in respect of item Nos.5, 6, 20 to 22 and ½ share in
Item Nos.4 and 18 in 'B' Schedule properties. The 4 th
plaintiff, namely the mother of the plaintiffs 1 to 3 and
defendants 1 to 3 is entitled to only 1/49th share in the above
mentioned items of properties in 'B' schedule properties.
Insofar as item Nos.1 to 3, 9 to 11, 13, 16, 17 and ½ share in
Item Nos.4 and 18 of 'B' schedule property are concerned
the plaintiffs 1 to 3 and defendants 1 to 3 are entitled to
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
have 1/6th share each and the fourth plaintiff, mother will
not be entitled to any share in 'B' schedule properties.
Accordingly, the preliminary decree is modified.”
2. Accordingly, the Registry is directed to issue a fresh order copy in
dated 04.02.2022 in A.S.No.55 of 2013 after making necessary corrections.
15.06.2022
nsa
https://www.mhc.tn.gov.in/judis
A.S.No.55 of 2013
G.K.ILANTHIRAIYAN, J.
nsa
A.S.No.55 of 2013
15.06.2022
https://www.mhc.tn.gov.in/judis
