Madras High Court
S.Sampoornam vs C.K.Shanmugam on 5 April, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.04.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
SA.No.729 of 2016
and
CMP No.13872 of 2016
S.Sampoornam ...Plaintiff/Appellant/Appellant
Vs.
1. C.K.Shanmugam
2. E.Santhakumar
3. S.Amudha
4. S.Amsa
5. C.K.Mani ...Defendants/Respondents/
Respondents
Prayer: Second Appeal filed under section 100 of the Code of
Civil Procedure to set aside the Judgement and decree dated
09.03.2016 made in A.S.No.44 of 2015 on the file of Subordinate
Judge, Ranipet in confirming the judgement and decree dated
31.10.2013 made in O.S.No.119 of 2009 on the file of District
Munsif cum Judicial Magistrate No.1, Walajapet, Vellore District.
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2
For Appellant : Mr.A.Gouthaman
For Respondents : Mr.R.Rajarajan
for R1 to R5
JUDGMENT
The Plaintiff is the appellant in this second
appeal.
2. The plaintiff filed the suit seeking for the
relief of partition and for allotment of 1/5 th share in the suit
property and also sought for declaration of the sale deed dated
15.06.2009 executed by the 1st defendant in favour of the 5th
defendant as null and void.
3. The case of the plaintiff is that the suit
property formed part of a larger extent of property which are
ancestral in nature. It is stated that these properties were held
by the great grand father Thalaivirichan Reddy, who had three
sons namely Chinnasamy Reddy, Kathavarayan Reddy and
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Chinnappa Reddy. On the demise of Thalaivirichan Reddy, his
three sons inherited the property. One of the son Kathavaraya
Reddy had three sons Munirathinam, Shanmugam and Mani.
According to the plaintiff, these three sons were jointly enjoying
the property on the demise of Kathavaraya Reddy. The Plaintiff
claims that the 1st defendant father and defendants 2 to 4 who
are the sisters of the plaintiff are each entitled for 1/5th share in
the suit property.
4. The grievance of the plaintiff is that the 1st
defendant went ahead and sold an extent of 36 cents in favour of
the 5th defendant through a sale deed dated 15.06.2009 and
according to the plaintiff, this sale deed is null and void and not
binding on the other sharers. That apart, the 1st defendant was
not coming forward to allot the shares to the other legal heirs
and hence, the suit came to be filed seeking for the reliefs
stated supra.
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5. The 1st defendant filed a written statement. He
took a stand that the three sons of Kathavaraya reddy had a
family arrangement and each was alloted specific portion to an
extent of 1.07 acres. According to the 1st defendant, he is the
absolute owner of the property measuring an extent of 1.07 acres
and during his life time, the plaintiff cannot claim any share in
the property. Therefore, the 1st defendant justified the sale of a
portion of the property in favour of the 5th defendant, who is
none other than the brother of the 1st defendant. Accordingly,
the 1st defendant has sought for the dismissal of the suit. This
written statement was adopted by defendants 2 and 5.
6. Both the Courts below on considering the facts
and circumstances of the case and after analyzing the oral and
documentary evidence concurrently held against the plaintiff and
dismissed the suit. Aggrieved by the same, the plaintiff has filed
this second appeal.
7. When the matter came up for hearing on
29.03.2022, this Court passed the following order :-
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Heard the learned counsel for the appellant.
When the matter was taken up for hearing on
25.03.2022, this Court wanted the learned counsel
for the appellant to clarify as to the nature of the
property in the hands of the first defendant, who
is the father of the plaintiff. This is in view of the
fact that both the Courts below have concurrently
held that the property, in the hands of the first
defendant, is an exclusive property and therefore
the plaintiff is not entitled to claim a share during
the life time of the first defendant. The learned
counsel for the appellant, by bringing to the
notice of this Court, the Judgment of the Hon'ble
Supreme Court in Arshnoor Singh Vs. Harpal Jaur
reported in 2019 (5) CTC 110, submitted that the
property originally belonged to Thalaivirichan
Reddy, who died about 65 years back and at that
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point of time, the Mitakshara Law was in force
and what was inherited by Kathavarayan Reddy,
one of the sons of Thalaivirichan Reddy, will also
be construed as a joint family property as per this
Judgment. If it is construed to be a joint family
property, the plaintiff will be entitled for a share
after the 2005 Amendment Act in the properties
which came to the share of the first defendant
measuring an extent of 1 acre 7 cents.
2. The learned counsel for the respondents
sought for some more time to make his
submissions after going through the Judgments
cited by the learned counsel for the appellant.
8. The above order gave rise to framing the
following substantial questions of law :-
Whether both the Courts below erred in coming to
a conclusion that the property in the hands of the
1st defendant is his exclusive property, when its
source had an ancestral flavour and hence, the
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children of the 1st defendant will also be entitled
for a share on their birth?
9. Heard Mr.A.Gouthaman, learned counsel for the
appellant and Mr.R.Raja rajan, learned counsel for the
respondents and this Court also carefully perused the materials
available on record and the findings of both the Courts below.
10. In the present case, the source of the property is
admitted to be ancestral. There is no dispute that Thalaivirichan
Reddy was originally holding the property and even as per the
written statement filed by the 1st defendant, he died 65 years
before the filing of the suit. The said Thalaivirichan Reddy had
three sons and the parties who are involved in this suit fall under
the branch of one of the son Kathavaraya Reddy. The main issue
that is involved is as to the nature of inheritance made by the
three sons of Thalaivirichan Reddy. In order to understand the
same, the learned counsel for the appellant invited the attention
of this Court to the judgement of the Hon'ble Supreme Court in
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[Arshnoor Singh Vs.Harpal Kaur and others] reported in 2019
5 CTC 110. The relevant portions relied upon by the learned
counsel for the appellant are extracted hereunder :-
7. With respect to the first issue, it is the admitted
position that Inder Singh had inherited the entire
suit property from his father Lal Singh upon his
death. As per the mutation entry dated 16-1-1956
produced by Respondent 1, Lal Singh's death took
place in 1951. Therefore, the succession in this case
opened in 1951 prior to the commencement of the
Hindu Succession Act, 1956 when Inder Singh
succeeded to his father Lal's Singh's property in
accordance with the old Hindu Mitakshara law.
7.1. Mulla in his Commentary on Hindu Law (22nd
Edn.) has stated the position with respect to
succession under Mitakshara law as follows:
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“A son, a grandson whose father is dead, and a great-
grandson whose father and grandfather are both
dead, succeed simultaneously as single heir to the
separate or self-acquired property of the deceased
with rights of survivorship.”
“All property inherited by a male Hindu from his
father, father's father or father's father's father, is
ancestral property. The essential feature of ancestral
property according to Mitakshara law is that the
sons, grandsons and great-grandsons of the person
who inherits it, acquire an interest, and the rights
attached to such property at the moment of their
birth.
A person inheriting property from his three
immediate paternal ancestors holds it, and must hold
it, in coparcenary with his sons, son's sons, and son's
son's sons, but as regards other relations, he holds it,
and is entitled to hold it as his absolute property.”
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7.2. In Shyam Narayan Prasad v. Krishna
Prasad [Shyam Narayan Prasad v. Krishna Prasad,
(2018) 7 SCC 646 : (2018) 3 SCC (Civ) 702] , this Court
has recently held that: (SCC p. 651, para 12)
“12. It is settled that the property inherited by a
male Hindu from his father, father's father or
father's father's father is an ancestral property. The
essential feature of ancestral property, according to
Mitakshara law, is that the sons, grandsons, and
great grandsons of the person who inherits it,
acquire an interest and the rights attached to such
property at the moment of their birth. The share
which a coparcener obtains on partition of ancestral
property is ancestral property as regards his male
issue. After partition, the property in the hands of
the son will continue to be the ancestral property
and the natural or adopted son of that son will take
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interest in it and is entitled to it by survivorship.”
7.3. Under Mitakshara law, whenever a male
ancestor inherits any property from any of his
paternal ancestors up to three degrees above him,
then his male legal heirs up to three degrees below
him, would get an equal right as coparceners in that
property.
7.4. In Yudhishter v. Ashok
Kumar [Yudhishter v. Ashok Kumar, (1987) 1 SCC 204]
, this Court held that: (SCC p. 210, para 10)
“10. This question has been considered by this Court
in CWT v. Chander Sen [CWT v. Chander Sen, (1986) 3
SCC 567 : 1986 SCC (Tax) 641] where one of us
(Sabyasachi Mukharji, J.) observed that under the
Hindu law, the moment a son is born, he gets a share
in father's property and becomes part of the
coparcenary. His right accrues to him not on the
death of the father or inheritance from the father
but with the very fact of his birth. Normally,
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therefore whenever the father gets a property from
whatever source, from the grandfather or from any
other source, be it separated property or not, his son
should have a share in that and it will become part
of the joint Hindu family of his son and grandson and
other members who form joint Hindu family with
him. This Court observed that this position has been
affected by Section 8 of the Hindu Succession Act,
1956 and, therefore, after the Act, when the son
inherited the property in the situation contemplated
by Section 8, he does not take it as Karta of his own
undivided family but takes it in his individual
capacity.”
7.5. After the Hindu Succession Act, 1956 came into
force, this position has undergone a change. Post
1956, if a person inherits a self-acquired property
from his paternal ancestors, the said property
becomes his self-acquired property, and does not
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remain coparcenary property.
7.6. If succession opened under the old Hindu law
i.e. prior to the commencement of the Hindu
Succession Act, 1956, the parties would be governed
by Mitakshara law. The property inherited by a male
Hindu from his paternal male ancestor shall be
coparcenary property in his hands vis-à-vis his male
descendants up to three degrees below him. The
nature of property will remain as coparcenary
property even after the commencement of the Hindu
Succession Act, 1956.
7.7. In the present case, the succession opened in
1951 on the death of Lal Singh. The nature of the
property inherited by his son Inder Singh was co-
parcenary in nature. Even though Inder Singh had
effected a partition of the co-parcenary property
amongst his sons in 1964, the nature of the property
inherited by Inder Singh's sons would remain as
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coparcenary property qua their male descendants up
to three degrees below them.
7.8. The judgment in Uttam v. Saubhag
Singh [Uttam v. Saubhag Singh, (2016) 4 SCC 68 :
(2016) 2 SCC (Civ) 545] relied upon by the
respondents is not applicable to the facts of the
present case. In Uttam [Uttam v. Saubhag Singh,
(2016) 4 SCC 68 : (2016) 2 SCC (Civ) 545] , the
appellant therein was claiming a share in the
coparcenary property of his grandfather, who had
died in 1973 before the appellant was born. The
succession opened in 1973 after the Hindu Succession
Act, 1956 came into force. The Court was concerned
with the share of the appellant's grandfather in the
ancestral property, and the impact of Section 8 of
the Hindu Succession Act, 1956. In light of these
facts, this Court held that after property is
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distributed in accordance with Section 8 of the Hindu
Succession Act, 1956, such property ceases to be
joint family property in the hands of the various
persons who have succeeded to it. It was therefore
held that the appellant was not a coparcener vis-à-
vis the share of his grandfather.
7.9. In the present case, the entire property of Lal
Singh was inherited by his son Inder Singh as
coparcenary property prior to 1956. This coparcenary
property was partitioned between the three sons of
Inder Singh by the court vide a decree of partition
dated 4-11-1964. The shares allotted in partition to
the coparceners, continued to remain coparcenary
property in their hands qua their male descendants.
As a consequence, the property allotted to Dharam
Singh in partition continued to remain coparcenary
property qua the appellant.
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7.10. With respect to the devolution of a share
acquired on partition, Mulla on Hindu Law (22nd
Edn.) states the following:
“339. Devolution of share acquired on partition.—
The effect of a partition is to dissolve the
coparcenary, with the result, that the separating
members thenceforth hold their respective shares as
their separate property, and the share of each
member will pass on his death to his heirs. However,
if a member while separating from his other
coparceners continues joint with his own male issue,
the share allotted to him on partition, will in his
hands, retain the character of a coparcenary
property as regards the male issue [Section 221, sub-
section (4)].”
7.11. This Court in Valliammai Achi v. Nagappa
Chettiar [Valliammai Achi v. Nagappa Chettiar, AIR
1967 SC 1153] , held that: (AIR p. 1156, para 10)
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“10. … It is well settled that the share which a co-
sharer obtains on partition of ancestral property is
ancestral property as regards his male issues. They
take an interest in it by birth whether they are in
existence at the time of partition or are born
subsequently; [see Hindu Law by Mulla, Thirteenth
Edn. p. 249, Para 223(2)(4)]. If that is so and the
character of the ancestral property does not change
so far as sons are concerned even after partition, we
fail to see how that character can change merely
because the father makes a Will by which he gives
the residue of the joint family property (after
making certain bequests) to the son.”
7.12. The suit property which came to the share of
late Dharam Singh through partition, remained
coparcenary property qua his son, the appellant
herein, who became a coparcener in the suit
property on his birth i.e. on 22-8-1985. Dharam Singh
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purportedly executed the two sale deeds on 1-9-1999
in favour of Respondent 1 after the appellant
became a coparcener in the suit property.
11. It is clear from the above judgment that when the
Hindu Succession Act, 1956 was not in force, the old Hindu
Mitakshara law was governing the field. Under the Mitakshara law
whenever a male ancestor inherits any property from any of his
parental ancestors up to three degrees above him, then his legal
heirs upto three degrees below him, will get an equal right as co-
parceners in that property. This position was altered after the
coming into force of Section 8 of the Hindu Succession Act, 1956.
After this provision came into force, where the son inherits
property belonging to the father or grandfather, he does not take
it as a co-parcener and he inherits the property in his individual
capacity.
12. To understand the above preposition of law in a
proper perspective, let us take a hypothetical case where
Thalaivirichan Reddy is assumed to have died after the coming
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into force of the 1956 Act. Admittedly, the property belonged to
Thalaivirichan Reddy. On his demise, his three sons would have
inherited 1/3 rd share each and the property that is inherited by
them will be their individual property. Accordingly, the share that
comes in favour of Kathavaraya Reddy will be his individual
property. On the demise of Kathavaraya Reddy, it would have
been inherited by his three sons once again in their individual
capacity in view of Section 8 of the Hindu Succession Act, 1956.
Under such circumstances, the children of the 1st defendant, who
is the one of the son of Kathavaraya Reddy and who had
inherited 1/3rd share, will not be entitled to claim for any share
during the life time of the 1st defendant and the 1st defendant
will have the exclusive right over the property to deal with the
same in any manner.
13. The above scenario will not apply to the facts of
the present case since admittedly, Thalaivirichan Reddy had died
even before the coming into force of the Hindu Succession Act,
1956.Therefore, the property was governed under the Mitakshara
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law and whatever was inherited by the sons of Talaivirichan
Reddy will continue to retain the character of a co-parcenary
property in the hands of his sons. Thereby, whatever came into
the hands of the 1st defendant, will also continue to be in the
nature of a co-parcenery property. Till any children are born to
the 1st defendant, probably the 1st defendant will be entitled to
deal with the property as if it is his individual property. However,
the moment a son or daughter (after the 2005 amendment Act)
are born, they automatically get a right over the property by
birth. Therefore, insofar as their shares are concerned, the 1st
defendant will not be entitled to deal with the same.
14. There was yet another issue that was brought
forth before this Court pertaining to the nature of property in the
hands of a sharer after the joint family property is partitioned
among the co-parceners. This Court in [M.Krishnamoorthy
Vs.K.Pondeepankar and others] reported in 2017 3 CTC 170
after analyzing the entire case law held as follows :-
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26. In the light of the above categoric
observations of the Supreme Court and in the light
of the pronouncements of two judge Bench of the
Hon'ble Supreme Court in Uttam v. Saubhag Singh
reported in (2016) 4 LW 309 and Prakash v.
Phulavathi reported in (2016) 2 LW 865 : [(2016) 1
HLR (SC) 94] wherein the judgment in Sheela Devi
v. Lal Chand reported in (2006) 8 SCC 581, was
taken note of and the Hon'ble Supreme Court in
Prakash v. Phulavathi case went on to hold that
daughters born after 1956 would become
coparceners by virtue of Act 39 of 2005. The other
two Judge Bench in Uttam v. Saubhag Singh
reported in (2016) 4 LW 309 held that the
property would be treated as self acquisition of a
male Hindu only if it is inherited either under
Section 8 or under the proviso to Section 6, that is
the interest of the male Hindu at the time of his
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death in Mitakshara coparcenary property worked
out by assuming a partition, just prior to his
death.
27. A reading clause-iv and v of the summary of
the law enunciated in Uttam v. Saubhag Singh
reported in (2016) 4 LW 309 would undoubtedly
show that irrespective of date of birth of the son,
the property which devolves on him as a
coparcener would continue to retain character of
coparcenery property in his hands vis a vis his
son/daughter (after 09/09/2005).
28. Yet another circumstance that would compel
me to follow the judgments in Dharma Shamrao
Agalawe v. Pandurang Miragu Agalawe, (1988) 2
SCC 126, Rohit Chauhan v. Surinder Singh reported
in (2013) 9 SCC 419 : [(2013) 2 HLR (SC) 5581, and
Prakash v. Phulavathi reported in (2016) 2 LW 865
: [(2016) 1 HLR (SC) 94] is the subsequent
enactment of Act 39 of 2005 as well as the
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enactment of laws which confers equal rights on
daughters by various orates. In so far as the Tamil
Nadu is concerned, Act 1 of 1990 was brought into
force with limited retrospective effect from
25.03.1989. In and by such enactment, a daughter
was conferred the status of coparcener along with
her father. Exception for the rule was prescribed
where a daughter married prior to 25.03.1989 was
prohibited from claiming as a coparcener. If the
law laid down by the Hon'ble Supreme Court in 1)
(2006) 8 SCC 581, 2) (2006) 3 SCC 87 and 3) (2009)
15 SCC 184 is to be followed in its letter and
spirit, no daughter born after 1956 would be
entitled to the benefits of the subsequent
enactments which came nearly 34 years
thereafter. Parliament had also enacted Act 39 of
2005, which confers equal rights to the daughters.
One exception that was made by the State
legislature relating to the married daughters was
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conspicuously absent in the Central enactment,
thereby enabling the daughter who was married
even prior to 9.9.2005 or 25.03.1989 (In Tamil
Nadu) to claim as coparcener. If it is to be held
that the daughters born after 1956 would not
become coparcener, the very purpose of the
amending enactments would be defeated. It was
Andrapradesh which led the move to make
daughters as coparceners along with their fathers
by enacting a law in 1986. The same was followed
by the Tamilnadu in 1989 and several other States
followed suit. Ultimately the parliament has
enacted the law in 2005. If the legislatures'
intention, in the year 1956, was to put an end
Page: 58 to coparcenary by saying that the son
born after 1956 will not become a coparcener,
there was no need for several State enactments
and the Central enactment which intended to
place daughters on a equal footing with the son. If
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the interpretation to the effect that the
son/daughter born after 1956 would not become a
co-parcener, is accepted the provisions of the
amending Acts, particularly Act 39 of 2005 would
be rendered otiose.
29. In view of the above, I am compelled with
great respect to the learned Judges, who decided
Sheela Devi v. Lal Chand reported in (2006) 8 SCC
581, in Bhanwar Singh v. Puran reported in (2008)
3 SCC 87 : [(2008) 1 HLR (SC) 337] and M.
Yogendra v. Leelamma N. reported in (2009) 15
SCC 184 : [(2010) 1 HLR (SC) 1] to conclude that I
find the law is more clearly and elaborately stated
in Dharma Shamrao Agalawe v. Pandurang Miragu
Agalawe, (1988) 2 SCC 126, Rohit Chauhan v.
Surinder Singh reported in (2013) 9 SCC 419 :
[(2013) 2 HLR (SC) 558], Uttam v. Saubhag Singh
reported in (2016) 4 LW 309 and Prakash v.
Phulavathi reported in (2016) 2 LW 865 : [(2016) 1
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HLR (SC) 94]. In view of the above conclusion, the
point that is raised in this appeal is answered in
the affirmative and the plaintiff is entitled to sue
for partition of the properties, inasmuch as they
were alloted to his father at a partition that took
place in 1984 as a coparcener of a joint Hindu
family and the plaintiff would essentially have a
right by birth to seek partition.
15. I am in complete agreement with the law as
enunciated in the above judgment. Even after the joint family
properties are partitioned and allotted to each sharer, the same
can be held to be the individual property of the sharer only till a
son and/or daughter are born. Once a son and/or daughter is
born, they will get a right and share over the property by birth.
As rightly held in the above judgment, the 1956 Act has not put
to an end the co-parcenery rights and infact, it continues to be
reiterated after the coming into force of the 2005 amendment
Act.
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16. In view of the above, even if there was a family
arrangement between the three sons of Kathavaraya Reddy and
by virtue of the same, the 1st defendant had allotted 1.07 acres,
the moment the plaintiff and defendants 2 to 4 were born, they
will also be entitled for a share in the property. This will be in
view of the 2005 amendment Act. The Substantial question of law
framed by this Court is answered accordingly.
17. Both the Courts below have lost sight of the law
governing the property at the relevant point of time and had
erroneously concluded that the property in the hands of the 1st
defendant is his exclusive property and that his daughters will
not be entitled to claim for a share in the property. Such findings
of both the Courts below are liable to be interfered by this
Court.
18. The 1st defendant through a sale deed dated
15.06.2009, marked as Ex.A4 had sold an extent of 36 cents out
of 1.07 acres in favour of the 5th defendant, who was his brother.
The 1st defendant will be entitled for 1/5th share in the suit
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property. Therefore, out of 1.07 acres, the 1st defendant will be
roughly entitled for 21.40 cents. However, he had sold an extent
of 36 cents. Obviously, the 1st defendant has sold 14.60 cents in
excess of his rights. Admittedly, the 1st defendant is the Karta of
the family and he had to take care of his daughter and should
spend for their marriage and other family expenses. It is nobody's
case that the 1st defendant had sold the property and had utilized
the money for illegal purposes. Therefore, the assumption should
be that it was utilized by the 1st defendant for the family.
19. In view of the above, this Court is not inclined to
disturb the sale deed executed by the 1st defendant in favour of
the 5th defendant on 15.06.2009. At the same time, this Court
must also safeguard the rights of the plaintiff and defendants 2
to 4 to the extent possible and ensure that they get a reasonable
share in the suit property. This is the only way to balance the
rights of the daughters and the father in the suit property.
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20. The Sale deed that was executed by the 1st defendant
in favour of the 5th defendant on 15.06.2009 will almost
tantamount to the 1st defendant selling his share in the suit
property. The excess property that was conveyed to the 5th
defendant can be adjusted towards family expenses. Thus, the 1st
defendant is held to have already dealt with his share in the suit
property. In view of the same, this Court is inclined to pass a
preliminary decree with respect to the balance 71 cents by
granting 1/4th share each to the plaintiff and defendants 2 to 4.
By doing so, each of the daughter will get approximately 17.75
cents. The manner in which the property is going to be
distributed by balancing the equities can be decided by the Trial
Court at the time of passing the final decree.
21. In the result, the second appeal is partly allowed and
the judgment and decree passed by both the Courts below is
hereby modified and there shall be a preliminary decree granting
¼ share to the plaintiff and defendants 2 to 4 in the property
that remains after the extent that has already been sold in
favour of the 5th defendant through sale deed dated 15.06.2009.
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Considering the facts and circumstances of the case, there shall
be no order as to costs. The Trial Court shall pass a final decree
within a period of three months from the date of filing of the
application for final decree.
05.04.2022
Speaking Order
Index : Yes / No
Internet : Yes / No
rka
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N.ANAND VENKATESH.,J
rka
To
1. The Subordinate Judge, Ranipet
2. The District Munsif cum Judicial Magistrate No.1, Walajapet,
Vellore District.
Copy To:-
The Section Officer
VR Section, High Court
Madras.
SA.No.729 of 2016
05.04.2022
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