Madras High Court
A.K.Gomathi vs R.Kuppannagounder (Died) on 8 March, 2021
S.A.No.1011 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.03.2021
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S.A.No.1011 of 2008
A.K.Gomathi ... Appellant
Vs.
1.R.Kuppannagounder (died)
2.Jayamani
3.Saraswathi ... Respondents
Prayer: The second appeal has been filed under Section 100 of C.P.C.
against the judgment and decree dated 19.12.2006 passed in A.S.No.91 of
2006 on the file of the Additional District Court, Fast Track Court No.IV,
Bhavani, reversing the judgment and decree dated 01.07.2005 passed in
O.S.No.933 of 2004 on the file of the Principal District Munsif Court,
Bhavani.
For Appellant : Mr.N.Manokaran
For Respondent No.1 : Died
For Respondent No.2 : Mr.K.Ponmani
for M/s.Zeenath Begam
For Respondent No.3 : No appearance
1/10
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S.A.No.1011 of 2008
JUDGMENT
Challenge in this second appeal is made to the judgment and decree
dated 19.12.2006 passed in A.S.No.91 of 2006 on the file of the Additional
District Court, Fast Track Court No.IV, Bhavani, reversing the judgment
and decree dated 01.07.2005 passed in O.S.No.933 of 2004 on the file of the
Principal District Munsif Court, Bhavani.
2.For the sake of convenience, the parties are referred to as per their
rankings in the trial Court.
3.The plaintiff in O.S.No.933 of 2004 is the appellant in the second
appeal.
4.Suit for partition and permanent injunction.
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S.A.No.1011 of 2008
5.The second appeal has been admitted on the following substantial
questions of law:
"1.Whether the First Appellate Court is
correct in law in dismissing the suit in its entirety
holding that D.W.3 is also entitled to get share in
the suit property as per the Tamilnadu Act 1 of
1990 even though there is no legal evidence on
record to show that her marriage took place on
or after the amended Act came into force on
25.03.1989?
2.Whether the first appellate Court is
correct in law in dismissing the suit for non-
joinder of D.W.3 as party defendant in the suit
even though under Order 1 Rule 9 and Order 1
rule 10 CPC no suit fail because of non-joinder
of parties, particularly when the Court below has
the power under Order 1 Rule 10(4) CPC to give
direction to implead a person who is a necessary
party?"
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S.A.No.1011 of 2008
6.Claiming that the suit properties are the ancestral properties and the
plaintiff being the daughter of the defendant and by invoking the Hindu
Succession (Tamil Nadu Amendment) Act, 1/1990, the plaintiff has laid the
suit against the defendant claiming half share in the suit properties.
7.The defendant resisted the plaintiff's suit on various grounds, inter
alia, that assuming the suit properties are the ancestral properties, the
plaintiff would be entitled to obtain only 1/6 share and her sister Jayamani
would be entitled to get 1/6 share and the defendant would be entitled to 4/6
share and the plaintiff's suit is liable to be dismissed for non impleading her
sister viz., Jayamani in the partition suit and accordingly, prayed for the
dismissal of the plaintiff's suit.
8.In support of the plaintiff's case, PW1 was examined and Exs.A1 to
A4 were marked. On the side of the defendant, DWs1 to 3 were examined
and no documentary evidence has been marked.
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S.A.No.1011 of 2008
9.On an appreciation of the materials placed on record, both oral and
documentary and the submissions put forth by the respective parties, the
trial Court declared that the plaintiff is entitled to obtain half share in the
suit properties and accordingly, granted the preliminary decree in favour of
the plaintiff as prayed for in the plaint. Impugning the judgement and decree
of the trial Court, the defendant preferred the first appeal. The first appellate
Court, on a consideration of the materials available on record, both oral and
documentary and the submissions put forth, dismissed the plaintiff's suit by
holding that the plaintiff's sister Jayamani is also entitled to secure a share
in the suit properties and the plaintiff's failure to implead her sister viz.,
Jayamani as a party to the proceedings is fatal to the case of the plaintiff and
resultantly, by way of allowing the appeal preferred by the defendant, set
aside the judgment and decree of the trial Court and consequently,
dismissed the plaintiff's suit. Impugning the same, the second appeal has
been preferred.
10.The character of the suit properties is not in dispute. It is thus
noted that the suit properties are the ancestral properties belonging to the
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S.A.No.1011 of 2008
plaintiff and the defendant. The defendant having died during the pendency
of the second appeal, it is seen that his LRs viz. the plaintiff's sister
Jayamani and wife of the deceased defendant R.Kuppanna Gounder viz.,
Saraswathi had been arrayed as R2 and R3 in the second appeal. Taking
into consideration the Hindu Succession (Tamil Nadu Amendment) Act,
1/1990, the parties went for trial claiming share in the ancestral properties,
mainly, focusing on the date of marriage of the plaintiff and her sister
Jayamani.
11.However, during the course of arguments, it has been fairly
admitted by the plaintiff's counsel as well as the defendant's counsel i.e.
R2's counsel, the parties are as at present would be governed by Hindu
Succession (Amendment) Act, 2005, which came into force from
09.09.2005. In such view of the matter, following the principles of law
outlined by the apex Court in the decision reported in 2020 9 SCC 1
(Vineeta Sharma Vs. Rakesh Sharma and others) irrespective of the date
of marriage of the daughters as contemplated under Hindu Succession
(Tamil Nadu Amendment) Act 1/1990, it is seen that the daughter born
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S.A.No.1011 of 2008
before the date of enforcement of 2005 Amendment Act has the same rights
as the daughter born on or after the amendment and there is also no
requirement of the coparcener father to be alive on the date of coming into
force of the abovesaid amendment and in view of the abovesaid position of
law, when it is seen that the daughter becomes a coparcener with effect from
09.09.2005 irrespective of whether she was born before the Hindu
Succession (Amendment) Act, 2005 or on or after the abovesaid amendment
Act, it is evident that the daughters of the first defendant as well as the
deceased defendant would be entitled to equal share in the suit properties.
When admittedly, the suit properties are the ancestral properties belonging
to the parties, it is thus noted that the plaintiff, the deceased defendant and
Jayamani R2 impleaded in the second appeal would be each entitled obtain
1/3 share in the suit properties. Inasmuch as the defendant had died during
the pendency of the second appeal, his 1/3 share in the suit properties would
devolve upon the plaintiff, R2 Jayamani and R3 Saraswathi, the wife of the
defendant and thus, it is noted that the plaintiff and R2 Jayamani would be
each entitled to obtain 4/9 share in the suit properties and R3 Saraswathi,
wife of the deceased defendant would be entitled to obtain 1/9 share in the
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S.A.No.1011 of 2008
suit properties, in view of the principles of law outlined in the apex Court in
the decision referred to supra.
12.In the light of the abovesaid determination qua the quantum of
shares to which each of the parties would be entitled to in respect of the suit
properties, the substantial questions of law formulated in the second appeal
are not required to be answered as such, particularly, when as at present the
parties are only governed by Hindu Succession Amendment Act 2005 and
the sister Jayamani having been impleaded in the second appeal proceedings
as the LR of the deceased defendant also, the question whether the
plaintiff's suit is bad for non-joinder of Jayamani or not pales into
insignificance.
For the reasons aforestated, the judgment and decree dated
19.12.2006 passed in A.S.No.91 of 2006 on the file of the Additional
District Court, Fast Track Court No.IV, Bhavani, as well as the judgment
and decree dated 01.07.2005 passed in O.S.No.933 of 2004 on the file of the
Principal District Munsif Court, Bhavani, are set aside and the plaintiff is
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S.A.No.1011 of 2008
held to be entitled to obtain 4/9 share in the suit properties and accordingly,
there shall be a preliminary decree in favour of the plaintiff as prayed for in
the plaint inclusive of the relief of permanent injunction till the share of the
plaintiff is divided by metes and bounds and accordingly, the second appeal
is disposed of. No costs. Consequently, connected miscellaneous petition,
if any, is closed.
Index : Yes/No 08.03.2021
Internet:Yes/No
sms
Copy to
1.The Additional District Court, Fast Track Court No.IV, Bhavani.
2.The Principal District Munsif Court, Bhavani.
3.The Section Officer, V.R.Section, High Court, Madras.
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S.A.No.1011 of 2008
T. RAVINDRAN, J.
sms
S.A.No.1011 of 2008
08.03.2021
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